1 of 138 DOCUMENTS 

PRIME CONTRACTORS, INCORPORATED v. M. & C. C. OF BALTIMORE 

No. 50, September Term, 1965 

Court of Appeals of Maryland 

241 Md. 55; 215 A.2d 214; 1965 Md. LEXIS 411 

December 22, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Cullen, J.  

DISPOSITION:
Appeal dismissed, costs to be paid by appellant.  

HEADNOTES:

Appeal -- Motion To Dismiss In Instant Zoning Case Granted Where Appellant's Appendix Was Insufficient -- Appendix Here Consisted Merely Of The Resolution Of The Board Of Municipal And Zoning Appeals And The Opinion Of The Trial Judge And Did Not Include Any Of The Testimony Of The Witnesses Presented To The Board Or The Exhibits And Plats That Were In Evidence Before The Board -- These Omissions Were Held Material To Appellant's Contention That There Was No Substantial Evidence To Support The Board's Decision.
Zoning -- Assuming Omitted Testimony Supported The Conclusions And Inferences Set Out In The Board's Resolution, Appellant Would Not Prevail On The Merits -- The Board Has Discretionary Authority And Its Exercise Of Such Authority Was At Least Fairly Debatable Here And Should Not Be Overturned By The Courts.  

SYLLABUS:

Appeal by Prime Contractors, Inc., from an order of the Baltimore City Court affirming the decision of the Board of Municipal and Zoning Appeals of Baltimore City partially denying Prime Contractors' application for a special exception.  

COUNSEL:
 [***2]  
Jerry S. Sopher for appellant.
Simon Schonfield, Assistant City Solicitor, with whom were Joseph Allen, City Solicitor, and Ambrose T. Hartman, Deputy City Solicitor, on the brief, for appellee.  

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

OPINIONBY:
MARBURY 

OPINION:

 [*56]   [**215]  The appellant, Prime Contractors, Inc., has appealed from an order of the Baltimore City Court affirming the decision of the Board of Municipal and Zoning Appeals of Baltimore City (Board) partially denying an application of the appellant for a special exception under the provisions of Ordinance No. 711, approved May 21, 1953, known as the Zoning Ordinance.  The contention is made that the trial court (Cullen, J.) committed reversible error in not finding the decision of the Board to be arbitrary, capricious, illegal and discriminatory, as not based on substantial evidence, in denying a special exception to the appellant, pursuant to Section 32 of the Ordinance.
On October 23, 1963, the appellant, as contract purchaser of premises No. 6017 Park Heights Avenue, Baltimore, filed its application with the Building [***3]  Inspection Engineer of Baltimore City for authority to construct on the premises a nine story, fifty-one family apartment building, with forty-one underground and twenty-eight surface parking units.  The lot involved is situated at the intersection of the northeast side of Park Heights Avenue and the southeast side of Taney Road, in a Residential Use District, 1 1/2 times Height District, E Area District.  The 

 [*57]  property was improved by a one and one-half story, two-family dwelling, thirty-seven feet by forty-seven feet; and on the rear of the lot was a one-story, frame building, eight feet by twelve feet. Both buildings were to be razed.  This application was denied by the Engineer because it violated Sections 24 and 25 of the Ordinance, and an appeal was taken by the appellant to the Board.  Under the provisions of these sections a lot area of 137,486.25 square feet is required for housing fifty-one families.  The lot involved contained approximately 27,800 square feet, which is sufficient for the housing of ten families.  Under the provisions of Section 32 of the Ordinance, entitled "Special Area Exceptions," the Board may permit the construction of an apartment house [***4]  with the maximum of eighty families per acre, or fifty-one families in this instance.
On December 5, 1963, the Board, after an inspection of the premises and a hearing in the case, denied the application for fifty-one units and granted the applicant permission for the construction of thirty units, thirty-eight underground parking spaces, ten surface spaces and no parking on Park Heights Avenue.
Pursuant to Maryland Rules 835 b (5) and 836 d, the appellee moved to dismiss this appeal since the appellant's appendix does not comply with Rules 828 a and b.  We first heard argument on the motion but reserved our decision until after  [**216]  argument on the merits.  We conclude that the motion must be granted.  The appellant's appendix consists merely of the resolution of the Board of Municipal and Zoning Appeals and the opinion of Judge Cullen, and does not include any of the testimony of the witnesses presented to the Board or the exhibits and plats that were in evidence before the Board.  This Court has repeatedly dismissed appeals where an appellant's record extract or appendix was patently insufficient for a determination of the questions raised.  Jacobs Instr. Co. v. Comptroller, [***5]  216 Md. 290, 140 A. 2d 285; Newark Trust Co. v. Trimble, 215 Md. 502, 506, 138 A. 2d 919; McBurnie v. McBurnie, 214 Md. 210, 214, 134 A. 2d 78; Gmurek v. Kajder, 203 Md. 437, 440, 101 A. 2d 204; Lane Manor Corporation v. Byers, 199 Md. 406, 409, 86 A. 2d 731; Sunshine Laundry Corp. v. White, 197 Md. 582, 586, 80 A. 2d 1.

 [*58]  In Platt v. Wilson, 191 Md. 371, 62 A. 2d 191, we held that we will not undertake to pass upon testimony contained in the transcript but not printed in the appendix to the brief.  Rule 828 a states: "The appellant shall cause to be printed *** as an appendix to his brief, extracts from the record * * *." Rule 828 b 1 (b) provides that the printed extract shall contain:
"So much of the evidence, pleadings or other parts of the record as is material to any question the determination of which depends upon the sufficiency of the evidence, pleadings or other matter contained in the record to sustain any action, ruling, order or judgment of the lower court."

These omissions are material to the consideration of this case and to the appellant's contention that there was no substantial evidence to support the Board's decision.  [***6]  
Even had the appellant complied with the Rules of this Court, and it be assumed that the omitted testimony would support the conclusions and inferences set out in the Board's resolution, it would appear that the appellant would not prevail on the merits.  Under Section 32 of the Ordinance the Board was given discretionary authority in such matters, and its exercise of such authority was at least fairly debatable and should not be overturned by the courts.
Appeal dismissed, costs to be paid by appellant.  

2 of 138 DOCUMENTS 

BALTIMORE MACHINE & EQUIPMENT, INC. v. HOLTITE MANUFACTURING CO., INC.  

No. 60, September Term, 1965 

Court of Appeals of Maryland 

241 Md. 36; 215 A.2d 458; 1965 Md. LEXIS 408; 3 U.C.C. Rep. Serv. (Callaghan) 36 

December 20, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed, with costs.  

HEADNOTES:

Sales -- "Sale By Sample" Was Held To Have Been Created Here -- Elements Of -- May Be Had Even Though The Sample Was Not Taken From An Existing Bulk And The Goods Are Not Yet In Existence.  The question presented in the instant case was whether the sale of dowel pullers by appellant to appellee was a sale by sample with an attendant statutory warranty that the bulk would correspond with the sample in quality, or a sale of future goods to be approved by the buyer. It was held that the evidence supported a finding that the sale was by sample and that appellee was justified in rescinding the transaction on the ground that the dowel pullers delivered to it did not conform in quality to the sample.  The Court stated that although the order for the pullers was placed before appellant produced the production model, it was conditioned upon approval by appellee "after tooling [but] before production".  And the Court felt that it could properly be found here that the appellant represented to appellee that the pullers it would deliver would fit the description appellee saw in [***2]  the production model exhibited to it and that appellee accepted this representation as part of the basis of the bargain and thus concluded its purchase upon the faith and credit of the impression produced by the production model, with the result that there was a sale by sample.  Further, the fact that the production model exhibited to appellee was the only dowel puller owned by appellant when the sale became final did not prevent the sale from being one by sample.  It was noted that there have been decisions holding that there could be a sale by sample only where the sample was part of and taken from an existing bulk, but the great weight of authority clearly is that there may be a sale by sample of goods not yet in existence, of goods still to be manufactured.
Sales -- Sale By Sample And Breach Of Warranty -- Rescission Of Sale -- Acceptance Of Goods -- Notice Of Election To Rescind -- Appellee Here Held To Have Had Right To Rescind And To Have Promptly Done So.  In the instant case where it was held that there had been a sale by sample by appellant to appellee and a breach of the attendant statutory warranty, the question presented was whether appellee's right to rescind [***3]  and return the goods without liability for the price, given by sec. 87 of Art. 83 of the Code, was lost because of anything it did do or failed to do.  Under paragraph 3 of sec. 87, "Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods; or, if he fails to notify the seller within a reasonable time of the election to rescind * * *".  However, the Court pointed out that mere acceptance of delivery as opposed to assent to receive as one's own, with knowledge of the facts, what is offered is not "acceptance" under the Sales Act. And, further, a buyer is entitled to a reasonable opportunity to determine if the goods equal the sample.  It was pointed out that in the case at bar, the day appellee learned that the goods were defective, it notified appellant and rescinded the sale and this was a short time after the physical deliveries to it.  The Court concluded that under the facts of this case, whether appellee's actions amounted to an acceptance of the goods was a question for the trier of fact, and it felt that he could reasonably have determined that there was no acceptance.  Therefore, it was held [***4]  that since appellee had the right to rescind and promptly did so, entry of judgment for appellee was proper.  

SYLLABUS:

Action by Baltimore Machine & Equipment, Inc., against Holtite Manufacturing Co., Inc., for breach of contract and damages.  From the lower court's judgment in favor of the defendant, plaintiff appeals.  

COUNSEL:
John T. Enoch, with whom were Goodman, Meagher & Enoch on the brief, for appellant.
Donald N. Rothman and David H. Fishman, with whom were Gordon, Feinblatt & Rothman on the brief, for appellee.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*38]   [**459]  Baltimore Machine and Equipment, Inc., a maker of tools and machinery, sued Holtite Manufacturing Co., Inc., a manufacturer of heels and soles for shoe repairers, on the common counts and a special count claiming that Holtite had refused to pay for a number of dowel pullers (which Holtite intended to supply to shoe repairers for use in pulling spiked heels from ladies' shoes) which Baltimore Machine had manufactured on order especially for Holtite and which had been delivered to Holtite.  [***5]  
After trial without a jury, at which Holtite's defense was that the dowel pullers were found to be defective and to have broken and crumpled in use, Judge Sodaro gave judgment for Holtite without stating the grounds for his decision.  It is to be regretted that counsel did not act under Maryland Rule 564 b 2, as should always be done if an appeal is likely, and move that the trial court dictate or prepare and file "*** a brief statement of the grounds for its decision * * *" since we are called on to decide the case on a record which contains no finding of fact and no expression of what law Judge Sodaro felt to be controlling.
The parties have briefed and argued the case on the mutual assumption that the decisive questions here, as they were below, are whether the sale of the dowel pullers by Baltimore Machine to Holtite was a sale by sample with an attendant statutory warranty that the bulk would correspond with the sample 

 [*39]  in quality, or a sale of future goods to be approved by the buyer, and that Judge Sodaro either found the sale to be by sample and Holtite to be entitled to rescind because the dowel pullers did not conform to the warranty of quality, or that he found [***6]  the sale to be one of future goods with no attendant warranty. The evidence supported a finding that the sale was by sample and that Holtite was justified in rescinding the transaction on the ground that the dowel pullers delivered to it did not conform in quality to the sample.  Whether or not these were the reasons Judge Sodaro rendered judgment for Holtite, we shall affirm because the record offers a basis for determining that Holtite was entitled to prevail.  See Casey Dev. Corp. v. Mont. County, 212 Md. 138, and other cases cited in 2 M. L. E. Appeals §  323.
The Uniform Sales Act which was in effect when the transactions under review took place provided in Code (1957), Art. 83, §  34, that in the case of a contract "to sell or a sale by sample," there is an implied warranty (a) that the bulk shall correspond with the sample in quality; (b) that ordinarily the buyer shall have a reasonable opportunity of comparing the bulk with the sample; and (c) if the seller is a dealer in goods of that kind, that the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample.  The Act, in §  87 of Art. 83 of the [***7]  Code, provided that where there was a breach of warranty, the seller, as one of his remedies, could rescind the contract to sell or the sale or, if he had already received the goods, could return or offer to return the goods and recover what he had paid the seller. The Act did not define a sale by sample, but this Court did in Gunther v. Atwell, 19 Md. 157, 167-68, where it was held that at common law a contract of sale by sample was not a warrant of quality but an agreement of the seller to deliver and of the buyer to accept goods  [**460]  of the same kind and quality as the sample.  The Court went on to say:

"The rule *** seems to be *** that to fulfil a contract of sale, the seller must deliver that which he has agreed to sell, and that if he does not, the purchaser may rescind the contract, or receive the goods and claim a deduction for their relative inferiority in 

 [*40]  value.  In order that this principle may be applied, it is necessary, in making the sale, that the sample should be so used between the buyer and seller, as to express or become a part of the contract; or, in other words, that the sample should amount to, and take the place of, an express [***8]  averment by the seller of the condition and quality of the goods sold, upon which the buyer relies in making the purchase.  The mere exhibition of a sample by the seller, and examination of it by the buyer, does not amount to such an averment, unless, from all the facts or circumstances in the case, it can be presumed that an understanding is arrived at between the parties, that the bulk is to correspond with the sample.  Berine v. Dord, 1 Seld. 73, 93. Waring v. Mason, 18 Wend. 425, 434. The reasonable deduction from these cases is, that to effect a sale by sample, so as to bind the seller for a correspondence in bulk, it must be shown that the seller adopts the sample as his own description of the bulk, and that the buyer concludes the purchase upon the faith and credit of the description so given."
In 1959 Holtite's source of supply of dowel pullers (which had proved satisfactory) went out of business and it asked a Mr. Breidenbaugh who was associated with a local maker of tools and machinery to make replacement parts for the pullers. He did so and they also proved to be satisfactory. Holtite then gave Breidenbaugh an order for one thousand of the dowel pullers after [***9]  he had made "a hand sample" which Holtite inspected and approved.  Breidenbaugh became financially unable to proceed and recommended Baltimore Machine as a replacement. He brought Mr. Harbaugh, its plant manager, in to see Mr. Esterson, Holtite's vice-president.  After Harbaugh inspected Breidenbaugh's hand sample, he said Baltimore Machine could make such appliances.  Esterson then gave to Baltimore Machine an order for one thousand "portable dowel pullers" to cost $ 4.89 each (Baltimore Machine became obligated to pay Breidenbaugh seventy-five cents per puller) and "to be designed by Mr. Breidenbaugh, similar to sample submitted but to be approved after tooling, before production." Breidenbaugh turned 

 [*41]  over to Baltimore Machine his hand sample and a die for use in making the legs of the pullers and it then made three additional dies for use in the manufacture of other parts of the device.  Baltimore Machine then made one puller from the production dies and took it and Breidenbaugh's sample to Esterson, who compared the two and found them alike and then, in the words of Harbaugh, "Mr. Esterson had some heels. He pulled some heels and he thought it worked all right", and [***10]  in response to Esterson's request for speedy delivery, Harbaugh promised to deliver fifty pullers as soon as possible.  When the fifty were delivered, Esterson noticed that they were not exactly like Baltimore Machine's production imitation of Breidenbaugh's hand sample in that the legs of the frame were too long in relation to the ratchet, with the result that the ratchet would not reach short heels. Harbaugh said this defect could be cured by replacing the ratchet or by shortening the legs and did the latter.  When the reworked fifty pullers were delivered to Esterson, he checked the length of the legs and, according to him, assumed, as his visual inspection seemed to indicate, that all else was in order.
In our view it could properly be found, as Judge Sodaro appears to have done, that Baltimore Machine represented to Holtite that the pullers it would deliver would fit the description Holtite saw in the production  [**461]  model exhibited to it and that Holtite accepted this representation as part of the basis of the bargain and thus concluded its purchase upon the faith and credit of the impression produced by the production model, with the result that there was a sale by [***11]  sample.
Baltimore Machine says that this could not be so because the Breidenbaugh sample was only to be a guide to suggest to Baltimore Machine a similar form of puller and therefore there was no sample in existence when the order was given, and that the sale was one of future goods to be accepted or rejected by Holtite on subsequent inspection.
Neither contention is sound.  Although the order for the one thousand pullers was placed before the production model, which was the sample, was produced by Baltimore Machine, it was conditioned upon approval by Holtite "after tooling [but] before production." When approval was given after tooling, it was of the sample.

 [*42]  In John E. Smith's Sons Co. v. Lattimer Foundry & Mach. Co., 19 F. R. D. 379, 385-89 (M. D. Pa.), aff'd, 239 F. 2d 815 (3rd Cir.), the parties had agreed as to price and the seller's ability to produce and the seller then made a sample casting from plans given it by the buyer and sent it to the buyer for approval, and the Court said that there was a warranty "*** that the castings would be the same as the sample" under both the Sales Act and the Uniform Commercial Code.  The Maryland Legislature provided [***12]  in its adoption of the Commercial Code, in Code (1964 Replacement Vol.), Art. 95B, §  2-313 (1) (c) (which took effect February 1, 1964), that "any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model." This provision differs from its equivalent in the Sales Act only in that the warranty is called express instead of implied, although there is authority to the effect that the warranties in a sale by sample under the Sales Act might properly be called express warranties. 1 Williston, Sales §  249 (rev. ed. 1948), and cases cited.  The official comment to Sec. 2-313 of the Commercial Code says in paragraph 6:
"The basic situation as to statements affecting the true essence of the bargain is no different when a sample or model is involved in the transaction.  This section includes both a 'sample' actually drawn from the bulk of goods which is the subject matter of the sale, and a 'model' which is offered for inspection when the subject matter is not at hand and which has not been drawn from the bulk of the goods."

Paragraph 7 adds this:
"The precise time when words of [***13]  description or affirmation are made or samples are shown is not material.  The sole question is whether the language or samples or models are fairly to be regarded as part of the contract.  If language is used after the closing of the deal (as when the buyer when taking delivery asks and receives an additional assurance), the warranty becomes a modification, and need not be supported by consideration if it is otherwise reasonable and in order (Section 2-209)."

 [*43]  As paragraph 6 of the official comment in the Commercial Code above quoted says, the fact that the production model exhibited to Holtite was the only dowel puller owned by Baltimore Machine when the sale became final did not prevent the sale from being one by sample.  There have been decisions, particularly in earlier days, holding that there could be a sale by sample only where the sample was part of and taken from an existing bulk, but the great weight of authority clearly is that there may be a sale by sample of goods not yet in existence, of goods still to be manufactured.  [**462]  1 Williston, Sales §  250 (rev. ed. 1948), says:

"*** usage both in England and in the United States has broadened [***14]  the use of the term, and there seems no reason why a contract to produce goods like a pattern should not be called a contract to sell by sample.  The 'bulk of the goods' is then equivalent in meaning to 'the goods.' In truth, a sample is simply a way of describing the subject-matter of the bargain, and the principles which are applicable to contracts to sell and sales by description are applicable here.  Verbal description may be used (1) as a means of identifying existing goods or (2) as a means of describing the quality of existing goods which are otherwise identified; or (3) as a means of describing non-existing goods.  The same principles are applicable where the description is by means of a sample."

See also Annot., "What amounts to a 'sale by sample' as regards warranties," 12 A. L. R. 2d 524, 552 (and cases collected under Paragraph VI, §  16 "View that goods need not be in existence").  See also Pike v. Fay, 101 Mass. 134; Worcester Mfg. Co. v. Waterbury Brass Co. (Conn.), 48 A. 422; Ideal Wrench Co. v. Garvin Mach. Co., 72 N. Y. S. 662; Arco Metalscraft Co. v. Shaw (Pa.), 70 A. 2d 850; Livingston Shirt Corp. v. Great Lakes Garment Mfg. Co. (Mich.),  [***15]  88 N. W. 2d 614; Roth v. Continental Wire Co. (Mo.), 68 S. W. 594; Hal Mfg. Co. v. Schoenling Brewing Co. (Ohio), 168 N. E. 2d 1; Modern Farm Service, Inc. v. Ben Pearson, Inc., 308 F. 2d 18, 23-24 (5th Cir.).

 [*44]  Baltimore Machine did not challenge the fact that the dowel pullers which were delivered to Holtite after the first fifty did not correspond in quality to the production model.  It concedes that after a salesman of Holtite told of complaints from shoe repairers, Esterson and Harbaugh tested a number of the dowel pullers on the same type of heels as the production model had successfully worked on, and the legs or the handle buckled or broke on all those tested.  Harbaugh offered to make a new stronger puller for Holtite, but the price asked and the shape and size of the suggested device was unsatisfactory.  Although he said that he would, Harbaugh never brought the production model out for comparison with the pullers made later, but there was testimony the trier of fact could have found credible and persuasive that the trouble lay in the teeth on the ratchet which were not as deep or at the same angle as on the model, and this caused the pawl to lock and [***16]  the buckling and breaking as the pull was increased.
There remains only the question whether Holtite's right to rescind and return the pullers without liability for the price, given by §  87 of Art. 83 of the Code, was lost because of anything it did do or failed to do.  Paragraph 3 of §  87 provides:

"(3) Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods; or, if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were at the time the property was transferred to the buyer. But if deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning or offering to return the goods to the seller and rescinding the sale."
Mere acceptance of delivery as opposed to assent to receive as one's own, with knowledge of the facts, what is offered is not "acceptance" under the Sales Act. Code (1957), Art. 83, §  67; 3 Williston, Sales §  485 (rev. ed. 1948); May Oil Burner Corp.  [***17]   v. Munger, 159 Md. 605; Henry Glass & Co. v. Misroch (N. Y. per Cardozo, J.), 147 N. E. 71.

 [*45]   [**463]  Of the four hundred sixty pullers delivered to Holtite, one hundred were shipped directly to a Canadian plant and another large batch to California.  Those delivered to Holtite in Baltimore were received by clerical employees who did no more than verify the number of packages receipted for.
A buyer is entitled to a reasonable opportunity to determine if the goods equal the sample.  Code (1957), Art. 83, § §  34 (b) and 65 (1); Vold, Sales §  34 (2d ed. 1959); Lippel, A Handbook on the Law of Sales, 40 (1926).  The day Holtite learned that the pullers were defective, it notified Baltimore Machine and rescinded the sale and this was a short time after the physical deliveries to it.
Baltimore Machine argues that Holtite must be deemed to have accepted the pullers when it examined and approved the first fifty after they had been reworked to make the legs and ratchet of proper relative length.
This goes to the provision of §  87 (3) of Art. 83 that if the goods have been delivered to the buyer "*** he cannot rescind the sale if he knew of the breach of warranty [***18]  when he accepted the goods * * *." Esterson said he did not know of the defect in the teeth of the ratchet and did not test the reworked machines.  Harbaugh said Esterson did test them.  Judge Sodaro seemingly chose to believe Esterson.  This could well have been because it was conceded that the pullers delivered after the fifty were all defective and if the fifty had been delivered and found satisfactory, they must have differed from those that were delivered later.  The shallowness of the teeth, if they were shallow on the first fifty pullers and had been observed by Esterson, could well have been thought by him to be a difference which he would recognize as a defect only after testing.  He says he saw no need to test the reworked fifty pullers except to see if the length of the legs had been shortened.  Whether what Holtite did was an acceptance of the goods would appear under the circumstances to have been a question for the trier of fact, and we think he could reasonably have determined it was not.
Since the sale was by sample and there was a breach of warranty, Holtite therefore had the right to rescind and promptly did so, and entry of judgment for Holtite therefore was proper.  [***19]  
Judgment affirmed, with costs.  

3 of 138 DOCUMENTS 

HOUSTON, et ux. v. LLOYD'S CONSUMER ACCEPTANCE CORPORATION 

No. 13, September Term, 1965 

Court of Appeals of Maryland 

241 Md. 10; 215 A.2d 192; 1965 Md. LEXIS 405 

December 17, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Baltimore County; Turnbull, J.  

DISPOSITION:
Order affirmed, costs to be paid by the appellants.  

HEADNOTES:

Constitutional Law -- Right To Jury Trial Held Not Violated By Circuit Court Rule Requiring A Timely, Affirmative Written Election -- Rule 8 Of The Circuit Court For Baltimore County.  The sole question presented in the instant case was whether a rule of a Circuit Court, at law, i. e., Rule 8 of the Circuit Court for Baltimore County, requiring an affirmative written election for a jury trial violated Article XV, Section 6 of the Maryland Constitution guaranteeing the right to a jury trial. It was held that it did not.  The Court stated that it is well settled that the right to a jury trial may be subjected to reasonable regulation; and it is generally acknowledged that it can, for all practical purposes, become meaningless to the individual and burdensome to the state unless the exercise of it is regulated to some extent.  And the Court further stated that although it agreed with an early Maryland case which held that there must be a consent or agreement by the parties to submit the cause to the court for determination without a jury, this [***2]  did not mean that "such consent and agreement" could not be reached in a variety of ways and particularly by way of a rule of court such as the one now under consideration.  Another early Maryland case was referred to which upheld the requirement that costs be paid as a condition precedent to a jury trial. The Court noted that it seems much less burdensome to require a timely election of the right to a jury trial than to require the payment of money as a condition precedent to its exercise, and it follows that if the one does not affront the constitutional guarantee then the other surely does not.  And finally, it was pointed out that a provision similar to the rule here under consideration is contained in Rule 38 of the Federal Rules of Civil Procedure, and it has been well decided that it does not violate the Seventh Amendment to the Constitution.  

SYLLABUS:

Reed Houston and his wife, defendants below, sought to have their case which was instituted by Lloyd's Consumer Acceptance Corporation and which was then pending in the Circuit Court for Baltimore County, placed on the Jury Trial Docket.  From the order of the lower court refusing to grant the motion, the Houstons appeal.  

COUNSEL:
 [***3]  
Richard D. Rosenthal, with whom were Dorf, Pollack & Cahn on the brief, for appellants.
James A. Ostendorf, with whom was Harry M. Sachs, Jr., on the brief, for appellee.  

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

OPINIONBY:
McWILLIAMS 

OPINION:

 [*11]   [**193]  Availing themselves of the provisions of Maryland Rule 826 g n1 the parties hereto signed and filed with the clerk of the lower court the following:

 [*12]  "Lloyd's Consumer Acceptance Corporation, Plaintiff, and Reed Houston and Catherine Houston, Defendants stipulate and agree under the provisions of Rule 826 g that the following is a statement of the case in lieu of pleadings and evidence: The Plaintiff brought its action in the Circuit Court for Baltimore County in assumpsit on July 14, 1964, and the Defendants filed a General Issue Plea and a Special Plea to the August Rule Day.  Thereafter a Demurrer to the First Special Plea and Demand for Particulars to the Second Plea were filed.
"The mesne proceedings between the filing of the Plea and the Motion of the Defendants to place the cause on the jury trial docket [***4]  filed on the 17th day of February, 1965, are not germane to the appeal.
"On February 17, 1965, the Defendants filed a motion to transfer the cause from the non-jury trial docket to the jury trial docket and set forth as their reasons the fact that neither of the parties to the cause had waived their respective rights to a jury trial and that a waiver of both parties is required under the Maryland Constitution and the parties are entitled to a trial by jury without formal application.
"The Plaintiff responded to the Motion and stated as the grounds for their resistance thereto Rule 8 of the Circuit Court for Baltimore County the pertinent provisions of which provide:
"'(1) All civil cases standing for trial in the Circuit Court for Baltimore County shall be tried before the Court without a jury unless an election in writing, for a trial by jury separate and distinct from the pleadings, be filed, in person or by attorney, as hereinafter provided.
"'(2) As to plaintiffs, such election shall be made by the plaintiffs, or any of them, not later than fifteen 

 [*13]  days after the filing of the declaration.  In all cases where a plaintiff or plaintiffs shall be brought in by amendment,  [***5]  any such new plaintiff  [**194]  shall so elect within five days after being made a party.
"'(3) As to the defendants, such election shall be made by the defendants, or any of them, at or before the time of first filing a plea, but in no event, after the time allowed by law or Rules of Court to plead.'
***"'(7) So soon as it is ascertained that a cause will not be tried before a jury, the clerk shall note that fact in red on the general trial docket, and when such case has been placed on the special trial docket, it shall be placed under a separate heading entitled "Non Jury Cases".'
"The Court below (John Grason Turnbull, J.) on February 17, 1965, denied the Motion and it is from the Order so doing that this appeal is taken.
"The sole question presented by this appeal is 'Does a rule of a Circuit Court, at law, requiring an affirmative written election for a jury trial violate Article XV, section 6 of the Maryland Constitution?'"

n1 "When the questions presented by an appeal can be determined by this Court without an examination of all the pleadings and evidence, the parties with the approval of the lower court may prepare and sign a statement of the case showing how the questions arose and were decided, and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by this Court.  Such statement, when filed with the clerk of the lower court shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the judgment from which the appeal is taken and any opinion of the lower court, and, together with such judgment and opinion, shall be certified to this Court as the record on appeal."

 [***6]  
Judge Turnbull did not state the grounds for his decision nor does it appear that either party filed a motion requiring him to do so.  Maryland Rule 18 c.  We have observed on a number of occasions n2 that it might be helpful for us to know how or why the trial court reached his (or her) decision.  Counsel ought not to be timid in making use of this rule nor should trial judges be annoyed with counsel for doing so, for, it will be recalled, the rule [18 c] itself is a relaxation of the former practice which 

 [*14]  required the trial judges, n3 in equity cases, to file an opinion in every case in which there was oral or written argument.  Code Art. 16, §  209 (1951).  We are satisfied it would be desirable, in most cases, for such a motion to be filed whenever it becomes clear to counsel that an appeal to this Court will be perfected.  However desirable it may have been in this case and whatever may have been Judge Turnbull's reasons, we think his decision must be affirmed.

n2 E. g., Aviation Ins. Co. v. Barclay, 237 Md. 318, 206 A. 2d 119 (1965); Sullivan v. Sullivan, 234 Md. 67, 197 A. 2d 910 (1964); Alvey v. Alvey, 225 Md. 386, 171 A. 2d 92 (1961); Alvey v. Alvey, 220 Md. 571, 155 A. 2d 491 (1959); Balto. County v. Glendale Corp., 219 Md. 465, 150 A. 2d 433 (1959). See Weaver v. King, Adm., 184 Md. 283, 40 A. 2d 511 (1945); Title Co. v. McCulloh, 108 Md. 48, 69 Atl. 434 (1908). [***7]  
n3 Except in Baltimore City and Prince George's County.

It is well settled that the right to a jury trial may be subjected to reasonable regulation; indeed, it is generally acknowledged that it can, for all practical purposes, become meaningless to the individual and burdensome to the state unless the exercise of it is regulated to some extent.  Virtually all of the busy courts in this country enjoy the benefits of statutes or rules similar to the rule here under attack and seldom has the validity of those statutes or rules been successfully challenged. n4

n4 Federal Rule 38(b), (d); Code of Alabama, Tit. 7, §  260 (Recompiled 1958); Arizona Rule 38(b), (d); California Code of Civil Proc., §  631.4 (Hanna 1961); Colorado Rule 38(b), (d); Connecticut General Statutes, §  52-215 (1958, supp. 1963); Delaware Superior Court Rule 38(b), (d); D. C. Code, §  11-715 (1961); Florida Rule 2.1(b), (d); Hawaii Rev. Laws, §  231-6 (1955); Illinois Stat. Anno., Ch. 110, §  64 (Smith Hurd 1956, supp. 1964); Iowa Rule 177; K.S.A. 60-238 (1964); Kentucky Rules 38.02 & .04; Anno. Laws of Mass., Ch. 231, §  60 (1956); Michigan Comp. Laws, §  618.12 (1948); Mississippi Code Anno., §  1615 (Recompiled 1957); Nevada Rule 38(b), (d); New Mexico Rule 38; New York Civil Practice Law and Rules, §  4102(a), (c) (Consolidated Law Service 1962); Ohio Rev. Code, §  1913.09 (Anderson 1961 cum. supp.); Oregon Rev. Stat. § §  46.170, 52.570 (1963); General Laws of Rhode Island, §  9-11-7 (1956); Tennessee Code Anno., § §  20-1204, 20-1205 (1955); Utah Rule 38(b), (d); Washington JCR 38; Wyoming Rule 38(b), (d).  See generally 31 Am. Jur. Jury, § §  40, 59 (1958); 50 C.J.S. Juries, § §  99-105 (1947); Annot. 64 A.L.R. 2d 506 (1959); James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655 (1963); Jones, Right to Jury Trial in Ohio Civil Suits, 12 Clev.-Mar. L. Rev. 347 (1963); James, Trial by Jury and the New Federal Rules of Procedure, 45 Yale L.J. 1022 (1936). See also Singer v. United States, 380 U.S. 24 (1965).

 [***8]  
 [**195]  Since appellants contend there is an infringement of the constitutional guarantee that the right to a jury trial "shall be inviolably 

 [*15]  preserved" n5 it becomes necessary to examine the decisions of this Court cited by them in support of this position.

n5 Maryland Const., Art. XV, §  6. See also Maryland Declaration of Rights, art. 5 and art. 23.

The earliest case cited is Wright v. Hammer, 5 Md. 370 (1854). We are, however, unable to discern why it was cited.  The Court there was concerned only with the right of removal under the Constitution of 1851 and the Court's opinion is barren of any mention of jury trials.  Precisely the same thing is true in respect of Griffin v. Leslie, 20 Md. 15 (1863), the next case cited.
Next in chronological order is Gambrill v. Parker, 31 Md. 1 (1869), which appellants contend should be persuasive.  The appeal was dismissed because the determination of the court below was not final, but this Court, speaking through Judge Stewart, took occasion [***9]  "to express, briefly, *** [their] views" in regard to the question presented.  Appellants quote him, as follows:
"In cases where a jury trial is demanded, and to which the party has a right, and there is no agreement to submit the case to the court, such case must, of course, be disposed of at a jury term." Id at 6.

The above quotation loses much of its significance, however, at least as far as this case is concerned, if there is added, as we now do, the very next paragraph of Judge Stewart's opinion:
"But the court, not knowing, in advance, what may be the determination of parties having cases, entitling them to a jury, as [to] the forum before which they will try them, may make rules regulating the matter; or, in the absence of special rules, may apply their general rules, as to the order of the business of the court, and the issuing of process to any of the terms, without affecting the right of parties to a jury trial." Ibid. (Emphasis supplied.)
Knickerbocker Ins. Co. v. Hoeske, 32 Md. 317 (1870) is appellants' next offering.  In that case, plaintiff, having obtained 

 [*16]  a judgment by default, sought to have his damages assessed [***10]  before the court, as provided by sec. 9 of the Act of 1864.  The court refused defendant's application for a jury trial. Chief Judge Bartol, speaking for the Court, stated:
"3rd. We think the court below erred in refusing the application of the defendant for 'a trial by jury of the question of the amount of damages to be assessed to the plaintiff.'
"The Act of 1864, sec. 9, provides that 'when any judgment by default shall be entered under the preceding sections, the court may assess the damages on proof thereof without empanelling a jury.' This section must be construed in subordination to the constitutional provision, Art. 15, sec. 6, which declares that 'the right of trial by jury of all issues of fact in civil proceedings, in the several courts of law in this State, where the amount in controversy exceeds the sum of five dollars, shall be inviolably preserved.'
"In the face of this provision, the Act of 1864, sec. 9, cannot be construed  [**196]  so as to deprive the defendant in this case, of the right of having the damages ascertained by a jury.  In a proceeding under this Act, where a defendant has not appeared in court and is in default; or having appeared, waives [***11]  or fails to ask to have this question referred to a jury, the court is empowered to assess the damages." Id at 326. (Emphasis supplied.)
Desche v. Gies, 56 Md. 135 (1881) is an appeal from the Circuit Court of Baltimore County, upon which appellants place much greater reliance than we think is justified.  It does appear that Chief Judge Bartol, for the Court, brushed aside the appellants' only contention (that a suggestion and affidavit of removal was fatally defective) and, said:
"We consider it unnecessary to decide whether this was a valid objection to the suggestion [of removal], or whether the same was sufficient in form; because it appears to us there is, apart from this question, a fatal objection to the judgment rendered by the Circuit Court.

 [*17]  "It does not appear from the record that there was any consent or agreement by the parties to submit the cause to the court for determination without a jury, as authorized by the Constitution, Art. 4, sec. 8.
"Without such consent or agreement, it was not competent for the court to proceed to the trial of the case, and to render judgment therein." Id at 137.

We must agree with Judge Bartol [***12]  that "without such consent and agreement" a court cannot render judgment. However, he did not say, and we have never said, that "such consent and agreement" cannot be reached in a variety of ways and particularly by way of a rule of court such as the one now under consideration which, it should be observed, was not then in force in Baltimore County.
The following quotation from Lanahan v. Heaver, 77 Md. 605, 26 Atl. 866 (1893), is offered next by the appellants:
"But we place our conclusion on what we think is the plain meaning of the provision of our own constitution upon this subject -- namely, that the parties to a civil cause must agree thereto before the aid of a jury can be dispensed with.
"We believe that universal practice of this state is in accord with this construction, for it has never been suggested that either party in a civil case can, without consent of the other, avoid a jury trial." Id at 609. (Emphasis supplied by appellants.)
Apart from the fact that the quotation is somewhat out of context we do not see how it helps appellants' cause.  The Court did not decide the means by which the agreement or consent might be obtained.  Indeed, the [***13]  only question before the Court, to use the words of Judge Fowler, who spoke for the Court, was:
"The Constitution, Art. 4, sec. 8, provides that 'the parties to any cause may submit the same to the court for determination without the aid of a jury.' It is apparent, therefore, that under the familiar provision of our Constitution a jury may be dispensed with by 

 [*18]  agreement of the parties in civil cases, and the only question before us is whether this agreement is binding upon both parties to it, and, if so, how long." Id at 608. (Emphasis supplied.)
On 7 November 1893, n6 the voters ratified an amendment to the Constitution (Art. IV, §  39) which provides, in part, as follows:
"*** [A]nd the General Assembly may provide by laws, or the Supreme  [**197]  Bench by its rules, for requiring causes in any of the Courts of Baltimore City to be tried before the Court without a jury, unless the litigants or some one of them shall within such reasonable time or times as may be prescribed, elect to have their causes tried before a jury.  * * *"

The ensuing rule (now known as Rule 545, Rules of Supreme Bench of Baltimore City, effective April 1, 1961)  [***14]  is essentially the same as the rule now under assault by appellants.  When the county rule n7 was first adopted we do not know, but very likely it was copied, almost verbatim, from the city rule which came under the consideration of this Court, somewhat obliquely it is true, for the first time in City Pass. Ry. Co. v. Nugent, 86 Md. 349, 38 Atl. 779 (1897), which is the next case cited by appellants.  Although the trial court was reversed only because the plaintiff's prayer for a jury trial did not appear on a "writing separate and distinct from the pleadings," we think Chief Judge McSherry's comment has both juridical and historical relevance:
"The first exception brings up a new question of practice.  By sec. 6, Art. 15 of the Constitution, a trial by jury of all issues of fact is guaranteed to every litigant when the sum in controversy exceeds five dollars, though it is competent, under sec. 8, Art. 4, for the parties to a proceeding to waive that right and to submit 

 [*19]  the cause to the Court for determination without the aid of a jury.  It was found in actual practice that these provisions resulted in congesting the dockets of the common law Courts in the city of [***15]  Baltimore, and accordingly an amendment of the organic law was proposed by the General Assembly during the session of 1892.  This amendment was subsequently adopted by the people.  *** This amendment, it will be seen, requires the causes therein referred to, to be tried by the Court unless an election to have a jury trial is made; and produces precisely the converse of the condition which prevailed prior to its adoption.  Acting under the authority thus conferred upon it, the Supreme Bench adopted a series of rules to put the amendment into effect.  * * *" Id at 360-61. (Emphasis supplied.)

n6 Proclaimed by the Governor on 24 November 1893.
n7 The authority of the Circuit Court to adopt rules of procedure, at the time the rule under attack was adopted, is not questioned by appellants.

Appellants indicate that the language above italicized clinches their theory of the case.  They offer as sufficient proof of the major premise of their syllogism the simple fact that the proponents of the city [***16]  rule sought and obtained the constitutional amendment. We think this less a recognition of their concern for proper constitutional auspices than a clear indication of their understandable desire for a simple, practical and foolproof method of expediting the work of the trial courts.  Surely the very fact of the amendment precluded much of the litigation the rule would otherwise have engendered but we do not agree that it was necessary to the validity of the rule, and we so hold.  We should like to add, however, that we are not unmindful of the references made by Markell, J. in Wright v. State, 189 Md. 218, 226, 55 A. 2d 849 (1947) and Brune, C. J. in Master Royalties v. Balto. City, 235 Md. 74, 96, 200 A. 2d 652 (1964), to the purely sequential nature of the relationship between the amendment and the (city) rule, and that we do not think their comments are inconsistent with the result reached in this case.
Appellants also cite Condon v. Gore, 89 Md. 230, 42 Atl. 900 (1899) and LaGuardia v. State, 190 Md. 450, 58 A. 2d 913 (1948). Condon is authority only for the proposition that the election of a jury trial under the Supreme Bench rule must 

 [*20]  be made [***17]  within the 15 days after the filing of the original declaration and that an election accompanying an amended declaration, for  [**198]  the first time, is too late.  We have been unable to discover in what respect LaGuardia is relevant to the issue before us.  So much for the authorities offered by appellants.
In Knee v. City Pass. Ry. Co., 87 Md. 623, 40 Atl. 890 (1898), cited by the appellee, the appellant [Knee], who had been awarded a new trial in an earlier appeal, n8 complained of an order of the trial court staying all further proceedings until the costs of the first trial and the appeal, $ 139.75, should be paid.  He contended that the statute empowering the court to pass such an order infringed the constitutional guarantee of the right of trial by jury and as well art. 19 of the Declaration of Rights which declares that every man "ought to have justice and right, freely, without sale * * *"

n8 City Pass. Ry. Co. v. Knee, 83 Md. 77, 34 Atl. 252 (1896).

Judge Pearce, for the Court,  [***18]  in an opinion, both learned and lengthy, which, it will be noted, made no mention of the recently ratified amendment to the Constitution (Art. IV, §  39), affirmed the lower court, and then went on to say:
"The first mention in the fundamental law of the State, of the right to trial by jury, is in Art. 5 of the Declaration of Rights, which says: 'The inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law.' Language of similar import, is found in the Constitution of each of the United States, and the authorities are therefore naturally uniform to the effect, that it is the historical trial by jury, as it existed when the Constitution of the State was first adopted, to which the inhabitants of each State are entitled; and whatever the nature of regulations, or restrictions, of that right existed in practice at that day, it has ever since been lawful to maintain, and now is lawful to establish." (Second emphasis supplied.)
***"In deciding the case in 7 Md. [Steuart v. Mayor and City Council, 7 Md. 500], JUDGE ECCLESTON 

 [*21]  [sic] cites with approval the case of Beers v. Beers, 4 Conn.  [***19]  535, where a provision of the Constitution guaranteeing right of trial by jury was held not to be violated, by an act giving jurisdiction to justices of the peace, but with an appeal; provided bond be given.  In that case, the Chief Justice said: 'No such unreasonable hardship is put on the appellant by the bond required for the prosecution of an appeal, as to justify the assertion that the right of trial by jury is in any manner impaired * * *.  It could never be the intention of the Constitution to tie up the hands of the Legislature, so that no regulation even, of the right of trial by jury could be made.  It is sufficient and within the reasonable intendment of that instrument, if the trial by jury be not impaired, although it may be subjected to new modes, and even be rendered more expensive, if the public interest demand such alteration.'"
***"This common law practice [requiring costs to be paid as a condition precedent to a jury trial], antedating our Constitution and Declaration of Rights, led naturally and almost inevitably as the field of litigation widened to the enactment of statutes, such as that now before us, having for their object the just regulation of  [***20]   the right of trial by jury.  Such statutes from time to time have been assailed by the independent and aggressive thinkers of the profession, and it is gratifying to note with what sound and wise discrimination, in the main, the Courts have dealt with the subject, always preserving unimpaired the ultimate  [**199]  historical right as it existed at the time of our separation from the mother country, while sustaining all reasonable regulations of the exercise of that right made in the interest of the general public.  Thus the payment of jury-fees, in States where such payment is required by statute, as a condition to a jury trial, has been very vigorously attacked as affixing an unconstitutional burden to this right, but the decisions have almost uniformly sustained the statutes." Id at 624-27. (Emphasis supplied).

 [*22]  It seems to us much less burdensome to require a timely election of the right to a jury trial than to require the payment of money as a condition precedent to its exercise, and it follows that if the one does not affront the constitutional guarantee then the other surely does not.
We find in Rule 38 of the Federal Rules of Civil Procedure [***21]  a provision similar to the rule here under consideration, and that this does not violate the Seventh Amendment to the Constitution of the United States is no longer open to question. n9 Indeed, Federal Rule 38, which provides that the right "shall be preserved to the parties inviolate" goes a little further than the Seventh Amendment which says merely that "the right of trial by jury shall be preserved." n10 The late W. Calvin Chesnut n11 provides us with an interesting comment on Federal Rule 38 vis-a-vis the Baltimore City rule:

"When the Supreme Court approved the Federal Rules of Civil Procedure, care was taken in Rule 38 to preserve the right of trial by jury in civil cases if it was demanded by any of the parties to the case within the time provided by the rules.  See also proceedings of the Institute of Federal Rules held at Cleveland, Ohio, in July 1938, published by the American Bar Association Institute, pp. 200 et seq., and 301, 308 et seq.
"The movement for facilitating and increasing trials by the court without a jury in civil cases seems to have begun in several States about 1900.  See 45 Yale Law Journal, 1022. In Maryland the first statutory enactment upon [***22]  the subject was a constitutional amendment submitted by the Legislature in 1892, ch. 313, and subsequently ratified, which now appears as Article 

 [*23]  4, section 39 of the Constitution of 1867, * * *.  Appropriate rules to this effect were shortly thereafter adopted by the Supreme Bench of Baltimore City and have long been in effect.  ***
"Resorting to personal recollection rather than to particular statistics, the movement in Baltimore City for such rules of court came at a time when there was a comparatively new congestion of cases on the court dockets and when the number of Judges of the Supreme Bench was much smaller than now.  And it should be remembered that in the 90's there had been an increase in the number of negligence cases by reason, in part, of the then recent electrification of the street railways and probably an increase in the number of industrial accidents, before  [**200]  the passage of the Maryland Workmen's Compensation Act." Zakoscielny v. Waterman Steamship Corp., 16 F.R.D. 314, 316-17 (1954).

n9 General Tire & Rubber Company v. Watkins, 331 F. 2d 192 (4th Cir. 1964), cert. den. 377 U.S. 952 (1964); Wilson v. Corning Glass Works, 195 F. 2d 825 (9th Cir. 1952); 5 Moore's Federal Practice, Para. 38.43 (2nd Ed. 1964).  See United States v. Moore, 340 U.S. 616 (1951); Yakus v. United States, 321 U.S. 414, 444 (1944). [***23]  
n10 There is no difference between "preserving" a right and holding or keeping it "inviolate." Schloemer v. Uhlenhopp, 237 Iowa 279, 21 N. W. 2d 457 (1946).
n11 U. S. District Judge (Maryland) 1931 to 1962.

Upholding a similar rule of the Municipal Court of the District of Columbia, Justice Prettyman, for the United States Court of Appeals, declared:

"*** [O]bservance of reasonable rules for the conduct of the business of the courts is not a mere technicality but may be part of the major business of preserving the basic rights of people who must come to the courts.  The case before us cannot be considered as though there were on the one side a technical rule of court requiring a given action on a given day, and on the other side the fundamental right of trial by jury.  The preservation of the latter may well involve the observance of the former." Kass v. Baskin, 164 F. 2d 513, 516 (D. C. Cir. 1947). (Emphasis supplied.)
We have already indicated (note 4 supra) that there is a massive storehouse of judicial and professional opinion on this subject and, except to [***24]  indicate that it is all generally in agreement with the result reached here, we shall not prolong this opinion with a review of it.

 [*24]  Rule 39(b) of the Federal Rules of Civil Procedure provides that "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, this court in its discretion upon motion may order a trial by a jury of any or all issues." The rules of many state courts contain a similar provision.  Neither the Baltimore City rule nor the Baltimore County rule vests any such a discretion in the trial judge.  We mention this only to observe, that, however desirable other jurisdictions may have found such discretionary provisions to be, in our opinion, the absence of such a provision in the rule under consideration generates no perceptible effect upon the single issue here presented.
For the reasons set forth the order of the trial judge will be affirmed.
Order affirmed, costs to be paid by the appellants.  

4 of 138 DOCUMENTS 

HARDGROVE, GUARDIAN, Etc. v. HARDGROVE, et al.  

No. 448, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 634; 215 A.2d 183; 1965 Md. LEXIS 481 

December 15, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Decree modified, and as modified, affirmed; costs to be paid by William H. Hardgrove and Lyle W. Hardgrove in equal proportions.  

HEADNOTES:

Wills -- Creation Of A Trust -- Technical Words Not Required, But Intention Must Be Apparent.
Wills -- Creation Of A Trust -- Not Intended Here By Gift Of Income From Property.  In a case such as the instant one, where there were no words in the will indicating the creation of a trust or the designation of a trustee and where the only income received by the beneficiaries was derived from property devised to a person who exercised no authority over it other than the right to approve or disapprove the making of improvements, it was held that the gift of the income did not portend the creation of a trust.
Wills -- Creation Of A "Charge" -- A Charge Is A Responsibility Or Liability Imposed By A Testator Upon A Devisee Personally Or Upon The Land Devised To Him -- Whether A Bequest Is A Charge Is Largely A Matter Of Intention.
Wills -- A Charge On Land Is Never Presumed -- Intention Must Be Clear -- When The Intention Of The Testator Is Clearly Implied, A Direction  [***2]   That Grandchildren Be Educated Out Of Profits From Real Property Under The Direction Of His Executors May Be Regarded As A Charge.
Wills -- Charge On Property Held To Have Been Intended By Testatrix Here.  In the instant case involving the construction of a will, it was held that the provisions of the will as a whole clearly indicated the intention of the testatrix to charge a bequest on real property. The testatrix devised a piece of property to her two sons but directed that it not be sold for at least twenty years after her death, and she further directed that two-thirds of one of her son's one-half of the net income from the property be deposited in the bank in equal proportions to the credit of her two grandchildren. The Court felt that, in view of the surrounding circumstances, the testatrix, who was concerned about the welfare of her grandchildren, intended to charge the son's one-half interest in the property with the payment of the bequests to her grandchildren for at least twenty years in order to provide them with an education or, in the alternative with the beginning of a fund they could use as a reserve upon attaining the age of twenty-five years.  It was [***3]  further held that there was nothing in the will indicating that the two sons had power to sell and convey the property whenever they chose to do so free and clear of the charges in favor of the grandchildren.
Wills -- Devise Of Real Property -- Subsequent Restrictions On Alienation Upheld.  In the instant case involving the construction of a will, it was held that since the devise of the real property to the testatrix's two sons was "subject to the directions and limitations [thereinafter] set out and defined," the restrictions on alienation imposed on the property by subsequent provisions of the will were neither void nor repugnant to the devise. And, it was further held that these restrictions did not violate the rule against perpetuities.  

SYLLABUS:

Suit by William H. Hardgrove and his wife, against Lyle W. Hardgrove, his wife and his two minor children, for the construction of the last will and testament of Berta Hardgrove, deceased.  From the chancellor's decree construing the will, Lyle W. Hardgrove, as Guardian of his two children, appeals.  

COUNSEL:
Hugh J. Monoghan, II, with whom were Charlotte W. Main and Monoghan & Main on the brief, for appellant.  [***4]  
Roger A. Clapp, with whom were Hinkley & Singley on the brief, for William H. Hardgrove, et ux., part of appellees; no brief and no appearance for other appellees.  

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

OPINIONBY:
HORNEY 

OPINION:

 [*636]   [**184]  In this equity proceeding for the construction of the last will and testament of Berta Hardgrove, deceased, the principal question presented is whether the legacies given and bequeathed by the testatrix to her grandson and granddaughter created a charge on real property, a trust of the property, or neither a charge nor a trust.

 [*637]  The testatrix executed the will on July 21, 1954.  She died on March 9, 1955.  The will was admitted to probate on March 24, 1955, by the Orphans' Court of Baltimore City and the executor named therein qualified as such on the same day.  The testatrix was survived by two sons, William H. Hardgrove (William) and Lyle W. Hardgrove (Lyle), and two grandchildren, Bud Weldon Hardgrove (Bud) and Bertha Ann Hardgrove (Bertha Ann), the minor children of Lyle by a former wife from whom he was divorced.  William and his [***5]  wife Virginia were the plaintiffs below and Lyle and his wife Edna and his minor children Bud and Bertha Ann were the defendants.  On appeal, Lyle, as guardian of his children, is the appellant, and William and his wife and Lyle and his wife are the appellees.  Since the legal position taken by Lyle and his wife in regard to the construction of the will was different from that taken on behalf of Lyle  [**185]  as guardian for his children, the divergent interests of the parties were represented below as well as here by separate solicitors.  The real property, which is the subject of this controversy is situate in Baltimore City, is located on the west side of Saint Paul Street between Pleasant and Mulberry Streets, is known as 330 Saint Paul Street and is presently improved by a large house, which has twenty-five rentable rooms, five apartments and one store.  Although the will was prepared by an attorney at law in the usual form, the lack of a correlated testamentary plan makes it desirable to reassemble the numerous items pertaining to the property in question.  The remaining items will be stated in such order, numerical or otherwise, as may be appropriate.
The first item of the [***6]  will (concerning the sale of two lots in St. Petersburg, Florida) was followed by the residuary clause which, though it was not mentioned, concerns the Saint Paul Street property.  That clause, designated as the second item in the will, provides as follows:
"All the rest, residue and remainder of my Estate and Property, Real, Personal, Mixed, of whatsoever kind and wheresoever situate, I give, devise and bequeath unto my two Sons, William H. Hardgrove and Lyle W. Hardgrove, in equal shares subject, however, to the directions and limitations herein set out and defined."

 [*638]  The first "limitation" with respect to the property in question was stated in the third item, which reads:
"It is my desire that my said two Sons do not sell my Rooming House Property, 330 Saint Paul Street, Baltimore, Maryland, until at least Twenty Years after my death."

The testatrix reiterated her desire with respect to this property in a part of the seventeenth item, when, in elaborating on this "limitation," she said:
"In the Third Item of this my last Will and Testament, I have directed that my property 330 Saint Paul Street, Baltimore, Maryland, be not sold [***7]  until at least twenty years after my death and I now direct that none of the contents of said property are to be sold until at least twenty years after my death, same to be used in the conduct of the rooming and apartment house business therein.  * * *."
The fourth item provided that William and Virginia (from and after the death of the testatrix) should have, free of rent, the right to occupy and use the rooms and facilities formerly occupied and used by the testatrix in the Saint Paul Street property.  But the right so given was revoked by the eighteenth item in the event that William (after completion of administration of estate) should refuse, or for any reason should thereafter fail, to manage and continue the conduct of the rooming and apartment house business.
The fifth item (upon completion of administration of estate) bequeathed William one-half of the net income from the property.  The sixth item directed that the remaining one-half of net income should be divided into three parts: one-third thereof was bequeathed to Lyle; one-third was to be deposited in a savings bank in the name of Bud "to be used as far as it may be necessary to do so for his education";  [***8]  and the remaining one-third was to be deposited in the name of Bertha Ann with an identical restriction as to its use for her education.  The last clause of the fourteenth item directed the executor to also distribute the unexpended balance of the rent money collected during administration 

 [*639]  "to the persons and in the proportions named and designated in the fifth and sixth items" of the will.
As to all moneys deposited in the name of the grandson and granddaughter, the testatrix stated in the tenth and eleventh items that:

"*** it is my desire and I so direct that the same may be drawn to  [**186]  be used for his [her] education, but that the balance of principal standing to his [her] credit, any additions thereto and accruing interest thereupon cannot be withdrawn from Bank by the said Bud [Bertha Ann] until he [she] attains the age of twenty-five years."
The seventh item provided that no improvements should be made to the property without the approval of both William and Lyle and the last clause of the sixteenth item directed that such improvements as were made should be paid for out of the rent money.
The sixteenth item [***9]  named and designated William "to manage and look after" the rooming and apartment house business after the administration of the personal estate had been completed, and, besides specifying in detail how he was to manage the business and what was to be paid out of the receipts from rent and what was not to be deducted therefrom, stipulated that William, in addition to the rent free accommodations provided in the fourth item, should receive a commission of not more than two per cent of the gross rents as extra compensation for services rendered in operating the business.  The last clause of the seventeenth item further provided that title to all articles which were replaced pursuant to directions in the sixteenth item, as well as the replacements of mattresses, furniture, et cetera, in the rented rooms should be taken in the name of William and Lyle.
The eighth item provided that in the event William should predecease Virginia (and the property had not been sold), the interest therein of William, as set out in the second and fifth items, should be divided into two equal parts (both as to income and principal): one part was bequeathed and devised to Virginia.  The remaining part [***10]  was further divided into three 

 [*640]  parts: one-third was bequeathed and devised to Lyle; one-third was devised to Bud with the income therefrom to be deposited in bank subject to the same restrictions as to withdrawal set forth in the sixth and tenth items; and the remaining one-third was devised to Bertha Ann with the income therefrom to be deposited in bank subject to the same restrictions as to withdrawal set forth in the sixth and eleventh items.  It was further provided that if the property were sold prior to the death of William the eighth item was to be null and void and of no effect; and that if Virginia should predecease William the item was to be null and void as to her.
The ninth item provided that upon the death of Lyle, provided the property had not been sold, then, and in that event, the interest therein of Lyle as set out in the second and sixth items, should be divided into three equal parts (both as to income and principal): one-third was bequeathed and devised to his widow; one-third was devised to Bud with the income therefrom to be deposited in bank subject to the same restrictions as to withdrawal set forth in the sixth and tenth items; and the remaining [***11]  one-third was devised to Bertha Ann with the income therefrom to be deposited in bank subject to the same restrictions as to withdrawal set forth in the sixth and eleventh items.  It was further provided that if the property had been sold prior to the death of Lyle the ninth item was to be null and void and of no effect.
Of the remaining items, none of which have any bearing on the questions presented by this appeal, the first item directed the sale of the Florida lots (at a price of not less than $ 4500 as directed by the first clause of the fourteenth item), and the payment of $ 1000 to each of two named brothers.  The twelfth item expressed the desire of the testatrix that Lyle give her stepdaughter (daughter of Lyle's first wife) a business course or send her to some school of higher learning.  The fifteenth item appointed the attorney who prepared the will as her executor. And the thirteenth item revoked all prior wills and codicils.
The bill for construction of the will sought the opinion of the court as to whether the third and seventeenth items created restrictions  [**187]  on the alienation of the fee simple estate in the property which were void as restraints [***12]  on alienation; as to 

 [*641]  whether such items (the third and seventeenth) created a trust of the property for twenty years after the death of the testatrix; as to whether William was required to deposit portions of the net income from the property for the education of Bud and Bertha Ann until they respectively reached twenty-five years of age; and as to such other matters as might come before the court at the hearing.
Both William and Lyle contended that the provisions of the will restricting a sale of the property for at least twenty years was a restraint on alienation and contrary to public policy and was also repugnant to the absolute estate devised to them by the second item of the will.  Lyle and his wife Edna contended that a trust of the property was not created, that William should not be required to deposit further moneys to the credit of Lyle's children and that the property should be sold and the net proceeds divided between William and Lyle.  And Bud and Bertha Ann, by their guardian, contended that the restraint on alienation was not void, that a valid trust in their favor was created for twenty years and that the deposits to their credit should be continued [***13]  until they reach twenty-five years of age when the balance in the respective accounts should be distributed to them.
The testimony taken at the hearing of the case by the chancellor n1 showed that William, with the assistance of his wife Virginia, has managed the property and operated the business and distributed the net income in accordance with the directions and desires expressed in the will of his mother.  Apart from these managerial and operational duties William is employed as a civil engineer.  His wife is not well and he was not certain how long he would be able to continue looking after the property and business.  He expressed a belief that if a good offer were made for the property it would be to the advantage of himself and his brother to sell it.  There was testimony that the divorced wife of Lyle (who is the mother of Bud and Bertha Ann) and her daughter by another marriage would be able to manage the property and operate the business if William was 

 [*642]  unable to do so or wanted to stop.  There was other testimony that Lyle had taken little interest in his children and that the testatrix was concerned about their welfare.  There was also other testimony that the [***14]  shares of net income belonging to Bud and Bertha Ann were deposited in bank regularly.  The amount to the credit of Bud was more than that in the account of Bertha Ann because some of it had been spent for her education.  Neither of them finished high school.  Bertha Ann completed the seventh grade, had taken music lessons and was interested in taking a course in beauty salon management.  The record is silent as to the desires of Bud with respect to further education.  He is now in the United States Army.  Bertha Ann, who was married in her middle teens, has one child and is now separated from her husband.  There was also testimony that twenty years after the death of their grandmother Bud and Bertha Ann would be thirty and twenty-eight years of age respectively.

n1 The chancellor, Wilson K. Barnes, is now an associate judge of this Court.

As to whether the third and seventeenth items created restrictions on the alienation of the Saint Paul Street property which were void or otherwise repugnant to the [***15]  devise of the property by the second item, the chancellor, who was of the opinion that the restraints imposed on the sale of the property did not contravene any positive rule of law, concluded that this contention was not tenable because the intention of the testatrix, as expressed in her will, was to the contrary.
As to whether the third and seventeenth items created a trust of the property in favor of the grandchildren of the testatrix for twenty years, the chancellor, after noting at the outset that the words "trust" or "trustee" were not used in the will, concluded  [**188]  that the testatrix did not intend to create a trust.  Instead, the chancellor, having decided that the use of the words "it is my desire" (in the third item) in connection with the direction that the property be not sold for at least twenty years were precatory and that the use of the words "I have directed" (in the seventeenth item) that the property be not sold within the time specified had not changed the meaning of the words used in the third item, was of the opinion that the testatrix did not intend to mandatorily restrain a sale of the property during the twenty year period.  The [***16]  holding of the chancellor is based 

 [*643]  on his finding that while the testatrix intended that the property should ultimately be for the benefit of William and Lyle in possession, she wanted to project her rooming and apartment house business for a time into the future -- a period of twenty years having been estimated as a practical period of time within which the projection should reasonably continue -- in order to provide a home for William, income for him and for Lyle, and funds for the education of Bud and Bertha Ann; and that as a means to such ends, the testatrix created a home charge (by the fourth item) in favor of William (and his wife) until he died or ceased to operate the business or until the property was sold and also created executory devises (by the seventh and ninth items) in the event William or Lyle should die prior to a sale of the property before the expiration of twenty years.  As a result of his conclusions, the chancellor further found that William and Lyle, acting together, could sell the fee in the property at any time free and clear of the right of William to occupy and use the premises and (inferentially) the right of Bud and Bertha Ann [***17]  to receive further shares of income from the property; that if William did not wish to sell and desired to continue to operate the business in compliance with the directions imposed by the will, he could do so until his death since "the decision was William's [and] Lyle could not force a sale"; and that if Lyle died prior to William, the executory bequest and devise to his widow and children was still subject to the home charge in favor of William and any sale of their interests would be subject to the charge.
As to whether William was required to deposit portions of the net income from the property for the education of Bud and Bertha Ann until they respectively reached the age of twenty-five years, the chancellor concluded that William, so long as he managed the property, had to continue depositing the shares of net income due the grandchildren in their respective bank accounts until each of them became twenty-five; that no part of the money in the respective accounts could be withdrawn for any purpose other than to pay the expenses for their education until they respectively arrived at the age stipulated; and that it made no difference that the further education of either of them [***18]  seemed remote.  The holding of the chancellor that the 

 [*644]  directions of the sixth item, as amplified by the explicit provisions of the tenth and eleventh items, are effective and must be complied with, was based on his finding that the intention of the testatrix in requiring the making of such deposits was clear and unmistakable.
In concluding his opinion, the chancellor briefly summarized the effect of his interpretation of the will as follows:
"William may, if he desires, continue to manage the subject property in accordance with the directions in his mother's will so long as he lives.  He may cease to manage it at any time, in which event, the home charge and its obligations cease and William and Lyle own the subject property and its contents, as tenants in common, in fee simple, absolute, free of the home charge.  When the home charge ceases, either William or Lyle may file a bill to partition the subject property. William and Virginia and Lyle and Edna may at any time convey the full and complete fee simple title to the subject property. If William dies prior to a sale of the subject property and is survived  [**189]  by Virginia, there then is an [***19]  executory devise in favor of Virginia as to one-half and as to Lyle and his two children as provided in Item Eighth.  This executory devise will not arise if the subject property has been sold, and if Virginia has predeceased William.  The same comments apply as to Lyle's one-half interest if he dies prior to a sale of the subject property, as provided in Item Ninth.  There will be no intestacy, in any event, in view of the provisions of Item Second of the Will."
As summarized below, the chancellor construed the will to mean:
First
(a) That the testatrix devised the Saint Paul Street property to William and Lyle, as tenants in common, in fee simple, subject to a charge in favor of William, during his life, or so long as he continued to manage the property and operate the business conducted thereon in accordance with the testamentary directions of 

 [*645]  the testatrix, to occupy and use the rooms and facilities formerly occupied and used by the testatrix, the charge to cease upon the death of William or at such time as he stops or fails to manage the property and operate the business;
(b) That William, in addition to rent free accommodations in the property for himself [***20]  and wife and a commission of two per cent of the gross rents as extra compensation for his services in managing the property and operating the business, was bequeathed one-half of the net income from the property and business; and
(c) That Lyle was bequeathed one-third of the remaining net income; Bud was bequeathed one-third thereof to be deposited in a savings bank in his name to be used only for his education until he attains the age of twenty-five years when the balance (plus additions and accrued interest) may be withdrawn by him at will; and Bertha Ann was bequeathed the remaining one-third to be deposited in a savings bank in her name to be used only for her education until she attains the age of twenty-five years when the balance (plus additions and accrued interest) may be withdrawn by her at will.
Second
(a) That the testatrix did not create a trust of the property for a period of twenty years or more in favor of Bud and Bertha Ann; and
(b) That, subject to the home charge in favor of William, the testatrix did not suspend the power of William and Lyle to sell and convey the property whenever they agreed to do so free and clear of the rights of Bud and Bertha Ann [***21]  to thereafter receive a part of the income therefrom.
Third
(a) That if William should die prior to a sale of the property, there is an executory devise in favor of Virginia (provided she survives William) as to William's one-half interest in the property and in favor of Lyle 

 [*646]  and his children, Bud and Bertha Ann, as to the other one-half interest; and
(b) That if Lyle should die prior to a sale of the property, there is an executory devise in favor of his widow as to one-third of his one-half interest; in favor of Bud as to a one-third; and in favor of Bertha Ann as to the remaining one-third.
The solution of the problem presented by this appeal is not an easy one.  Was it the intention of the testatrix to create a trust, a charge or neither?  We agree with the chancellor that the third and seventeenth items of the will did not create a trust of the property.  We think, however, that it was the intention of the testatrix,  [**190]  expressed throughout the will, to create a charge on Lyle's interest in the property in favor of Bud and Bertha Ann for at least twenty years.
While technical words, such as "trust" or "trustee," are not required in order [***22]  to create a trust under the terms of a will, the intention to create a trust must nevertheless be apparent.  Waesche v. Rizzuto, 224 Md. 573, 168 A. 2d 871 (1961). But in a case such as this, where there are no words in the will indicating the creation of a trust or the designation of a trustee and where the only income received by the beneficiaries is derived from property devised to a person who exercises no authority over it other than the right to approve or disapprove the making of improvements, the gift of the income did not portend the creation of a trust.  See Boutelle v. Boutelle, 231 Md. 69, 188 A. 2d 559 (1963).
On the other hand, while it is true that a charge on land is never presumed and the intention to create a charge must be clear or no charge will be created, Fogle v. Stitely, 186 Md. 28, 45 A. 2d 630 (1946), it was nevertheless suggested in Johns v. Stoops, 5 H. & J. 430 (1822), that when the intention of the testator is clearly implied, a direction that grandchildren be educated out of profits from real property under the direction of his executors is regarded as a charge.  See also Miller, Construction of Wills, §  302, footnote 10; Page  [***23]   on Wills (Bowe-Parker Edition) §  51.6.  In Cain v. Miller, 117 Md. 45, 82 Atl. 1055 (1911), a charge was said to be a responsibility or liability 

 [*647]  imposed by a testator upon a devisee personally or upon the land devised to him.  And whether a bequest is a charge on land is said to be a matter of intention in Ogle v. Tayloe, 49 Md. 158 (1878). See also Page on Wills, op. cit., §  51.9, where it is said that a bequest may be charged on real property without express words in a will which shows the intention of a testator to make the charge if it is clear from the will taken as a whole and in the light of surrounding circumstances that it was his intention to make such charge.  To the same effect, see Miller, op. cit., § §  302, 304 and Sykes, Probate Law and Practice, §  114.
Although neither the direction as to making the deposits in bank (which in reality were bequests of a share of the income to her grandchildren for a term of years) nor the bequest of the right of her son to occupy and use the devised property were referred to in the will as charges on the property, we think that the bequests of income to Bud and Bertha Ann created a charge on Lyle's [***24]  interest in the property in their favor as fully and as effectively as the bequest of the right to occupancy and use created a charge on the property as a whole in favor of William, as to which there is no controversy.
As we read them, the provisions of the will as a whole clearly indicate that it was the intention of the testatrix to charge a bequest on real property. It may be that the desire expressed by the testatrix in the third item of her will that the property be not sold for at least twenty years would not, standing alone, suffice to create a charge on real property, but when the request in the third item is read with the positive declaration of the testatrix in the seventeenth item that she had directed that her property (including the contents thereof) be not sold until at least twenty years after her death, it is apparent that it was the intention of the testatrix to charge Lyle's interest in the property with the bequests (in the form of bank deposits) made in the sixth item of the will.  Buchanan v. Lloyd, 88 Md. 642, 652, 41 Atl. 1075 (1898). Other than this, further evidence of the creation of a charge is found in the sixth item which,  [***25]  after dividing one-half of the income from the property into three parts, bequeathed a one-third part to Lyle and directed that the other two-thirds be deposited in bank to the credit of Bud and Bertha 

 [*648]  Ann.  And, as hereinbefore stated, evidence that the charge was to endure for at least twenty years is found in the third and seventeenth items of the will.
 [**191]  The circumstances surrounding a testator at the time a will is executed are also important in showing, not what the testator meant apart from what the words express, but what the words really mean.  To that end, it is always proper to consider and weigh the words used in the light of the surrounding circumstances for the purpose of ascertaining the intention of the testator as expressed in his words and not as an independent fact. n2 Applying this permissible rule of construction to the testamentary expressions in the will of Berta Hardgrove, it is evident that the testatrix, who was concerned about the welfare of her grandchildren because her son had theretofore taken little interest in his children, by directing that two-thirds of Lyle's one-half of the net income from the property should [***26]  be deposited in bank in equal proportions to the credit of Bud and Bertha Ann, intended to charge Lyle's one-half interest in the property with the payment of the bequests to her grandchildren for at least twenty years in order to provide them with an education or, in the alternative, with the beginning of a fund they could use as a reserve upon attaining the age of twenty-five years.  See Owens v. Claytor, 56 Md. 129, 135 (1881); Miller, op.cit., §  304, supra.

n2 See Littig v. Hance, 81 Md. 416, a leading case on this point, and the numerous subsequent cases to the same effect.

Finally, we find nothing in the will indicating that William and Lyle have power to sell and convey the property whenever they choose to do so free and clear of the charges in favor of Bud and Bertha Ann.  Furthermore, since the devise of the property to William and Lyle in the second item of the will was "subject to the directions and limitations [thereinafter] set out and defined," the restrictions on alienation imposed [***27]  on the property by the third and seventeenth items of the will were neither void nor repugnant to the devise made in the second item.  Nor were such restrictions violative of the rule against perpetuities.
As a result of our interpretation of the will, the construction 

 [*649]  placed thereon by the chancellor must be modified in the following particulars:
1. The devise to Lyle of a one-half interest in the Saint Paul Street property is subject to a charge in favor of Bud and Bertha Ann for at least twenty years regardless of whether or not William continues to manage the property and operate the rooming and apartment house business.
2. While the will did not create a trust on the property it did create a charge in favor of Bud and Bertha Ann on the one-half interest of Lyle in the property as above stated.
3. The statement of the chancellor as to the meaning and effect of the executory devises seems to be correct, but we see no reason to make a determination now with respect to the contingencies that may hereafter arise, either as to "income [or] principal," in the event of the death of any of the parties to this proceeding.  See In Re Clarke's Will [Clarke  [***28]   v. Clarke], 198 Md. 266, 81 A. 2d 640 (1951).
So long as William (or a successor to him) continues to manage the property and operate the business conducted thereon, the respective shares of the net income due Bud and Bertha Ann should be deposited to their credit in bank as heretofore.  If, however, William for any cause should cease to "look after" the property and business (thereby forfeiting his right to the home charge), we see no reason why the property may not be sold at any time thereafter for the purpose of partition.  In that event one-half of the net proceeds of sale would be payable to William forthwith.  One-third of the other one-half of the net proceeds would be payable to Lyle forthwith.  But the remaining two-thirds of one-half of the net proceeds of sale realized as a result of commuting the real property into money should be deposited in a savings bank selected by  [**192]  Lyle under an order of the court decreeing the sale which shall provide that one-half of the interest accruing on the commuted fund shall be deposited at regular intervals in the separate savings bank accounts of Bud and Bertha Ann until March 9, 1975, when the period of twenty years fixed [***29]  by the testatrix for the duration of the charge in favor of Bud and Bertha Ann will expire.  On that 

 [*650]  date Lyle will have the right to withdraw the principal of the commuted fund.
Decree modified, and as modified, affirmed; costs to be paid by William H. Hardgrove and Lyle W. Hardgrove in equal proportions.  

5 of 138 DOCUMENTS 

CORRELLI ROOFING CO., INC. v. NATIONAL INSTRUMENT CO., INC. 

No. 30, September Term, 1965 

Court of Appeals of Maryland 

240 Md. 627; 214 A.2d 919; 1965 Md. LEXIS 480 

December 14, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed January 11, 1966, Denied January 18, 1966.  

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

DISPOSITION:
Judgment affirmed as to liability but case remanded without affirmance or reversal for a new trial as to damages.  Costs on this appeal to be paid by appellee.  

HEADNOTES:

Contracts -- Suit For Breach Of An Express Warranty On A New Roof -- Evidence Was Sufficient To Prove.  In the instant case the appellee brought suit against the appellant for breach of an express warranty on a new roof installed by appellant contending that the new roof leaked. It was held that the testimony was sufficient for the trial judge to find that the roof did leak.  And, it was further held that there was sufficient evidence from which the trial judge could have found that the leakage was caused by defects within the roof rather than the building's supposed settlement and that the appellant was thereby liable.
Damages -- Measure Of, In Suit To Enforce An Express Warranty -- Appellee Here Did Not Adequately Prove Damages -- Case Remanded.  In the instant suit for breach of an express warranty on a new roof, the trial court awarded the appellee [***2]  $ 2,466, the exact cost of a new roof, which was being put on at the time of trial. The appellant contended, on appeal, that the appellee did not adequately prove damages to justify the trial court's award and the Court agreed.  The Court stated that where the appellee seeks to enforce an express warranty, the measure of damages is that amount of money which will render that which is guaranteed to be as warranted.  However, it was held that in this case the appellee did not adequately prove what that dollar figure was, and as a consequence there was nothing on which the trial judge could have properly based his award of damages.  And since neither of the parties requested the trial judge to reduce to writing a memorandum stating the grounds for his decision and the method of determining the damages which he awarded, there was no way of knowing what the trial judge included in his damage figure.  The Court stated that even if it were assumed that the judge used as his measure of damages, the price for the new roof, there was no legally competent evidence to justify his so doing.  There was no evidence to show what type of new roof was being installed by appellee, what type of warranty [***3]  it carried, or how it was in any way comparable to the original roof. And, further, there was no evidence to show that a new roof was needed as opposed to additional repairs to the defective roof. Therefore, since the appelle did not adequately prove what the damages were, the case was remanded for further proceedings.  

SYLLABUS:

Suit by National Instrument Co., Inc., against Correlli Roofing Co., Inc., for breach of an express warranty and for damages.  From an award in favor of the plaintiff and the judgment entered thereon, defendant appeals.  

COUNSEL:
Hyman K. Cohen, with whom was Jay Fred Cohen on the brief, for appellant.
Alexander Stark and Victor H. Savadow, for appellee.  

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

OPINIONBY:
MARBURY 

OPINION:

 [*629]   [**919]  National Instrument Company, Inc., plaintiff-appellee, was the owner of a thirteen year old building when, during the year 1961, it contracted to have an addition constructed to the existing building.  The general contractor was Mr. Charles DiPangrazio who sub-contracted the installation of the roof to Correlli Roofing Company, Inc.,  [***4]  defendant-appellant.  The approximate cost of the entire new masonry building was $ 24,000, including the price of the flat roof, which was $ 1,300.  The appellant, when the new roof was completed, delivered  [**920]  to the appellee a written guarantee, dated July 10, 1961, which guaranteed the roof "to be Leakproof and to wear 15 years under natural wearing conditions." It further stated that the appellant assumed no liability for damage to buildings or contents thereof.
Suit was instituted on December 27, 1963, and the case was tried before Judge Sodaro without a jury, on November 18, 1964.  The plaintiff's theory of recovery was that there was a breach of an express warranty in that there was considerable leakage through the guaranteed roof of the new addition which required the replacement of the entire roof. This leakage, in addition, was also the basis for a claim for compensation for alleged damages to interior contents.
At the conclusion of the trial the case was held sub curia, but on the same day Judge Sodaro wrote a letter to the defendant's attorney, with a copy to the plaintiff's attorney, advising them that he had concluded to render a judgment in 

 [*630]  favor [***5]  of the plaintiff in the amount of $ 2,466, the exact amount testified by Mr. Rosen, president of the appellee, to be the cost of a new roof which was being put on the addition at the time of trial by the Edward G. Fick Roofing Company, the lowest of three bidders on the job.  The judge, however, gave no basis for his award of damages and neither of the parties requested him to do so, as they might have done pursuant to Maryland Rules 18 c and 564 b 2.  From the judgment subsequently entered in accordance with the letter of Judge Sodaro, the appellant has entered this appeal, which raises three questions: (1) did the appellee prove that the roof leaked, (2) if the appellee did in fact show that the roof leaked, was the appellant liable therefor under the guarantee, and (3) did the appellee prove damages sufficient to justify the award by the trial judge.
According to the testimony of Mr. Rosen, the roof leaked and had done so from the first time it rained after its completion.  He also testified that Correlli sent its men out in response to his complaints approximately eighteen times, but they were uniformly unsuccessful in abating the leakage and, in fact, the leakage appeared to [***6]  him to get progressively worse, despite the repairs. Rosen admitted that the appellant never refused to continue to make repairs on the roof but that they did refuse to construct a new roof, which he finally had requested.  Six photographs were introduced into evidence by the appellee to show that the roof leaked, and one photograph showed a droplet of water actually striking a puddle upon the floor.  The plant manager of the appellee company, who worked in the building, also testified that the roof leaked. Mr. Rosen was allowed to testify, over appellant's objection, to damages to the interior contents of the building.
The plaintiff below also called Mr. DiPangrazio, who had been a building contractor for some twenty-nine years, but, according to his own testimony was not a roofing expert.  DiPangrazio testified that he had received a complaint that the roof leaked about "a month or so" after the building was completed and that he had many subsequent complaints from National Instrument Company about leakage, and that he had seen leakage especially where the flashing had been torn loose.  Mr. 

 [*631]  DiPangrazio explained that the flashing had to be replaced because it was warped [***7]  and twisted due to the heat of the sun and because the roofers had not used the best type of flashing. He did not testify specifically that he thought a new roof was required but he did recall a conversation with Herman Correlli in which he (DiPangrazio) questioned the efficacy of appellant's continued patching.  He testified, however, that if a new roof were to be built it was necessary to scrape down to the gypsum pouring deck, as was done by the Fick Company, instead of merely building a new roof atop the old, and that this required about two and one-half times more work than the original construction done by appellant.
The Roofing Company called John F. Detorie, who had been in the roofing business for some twenty-nine years and who  [**921]  had made a personal inspection of the allegedly defective roof. He testified that the apparent source of the entry of the water was through the flashing which was torn and cracked, and that the only thing which would cause this was the settlement of the building.  He further testified that normally the builder, and not the roofer, was responsible for damage done by settlement. He admitted, however, that he had not inspected this building [***8]  to see if it had in fact settled, and opined that a completely new roof was not necessary because the only defect which he saw in the roof was the torn flashing, which could be repaired. Moreover, he testified that if a new roof were to be constructed it would not be necessary to scrape down to the pouring deck, as Mr. DiPangrazio had testified and as the Fick Company was doing at the time of the trial.
The appellant did not call as a witness Herman Correlli, the person who supervised construction of the roof, but instead called Henry Correlli, its president, who had supervised some of the repair work.  He testified that he had repaired the flashing which was twisted due to settlement of the building.  Since the flashing had been repaired, he stated that it was "a possibility" that the present leakage was due to entrance of water through the wall which separated the old building from the new and that the water then followed a structural beam to the new part of the building where it fell through to the floor, instead of through the roof built by Correlli.  However, Mr. DiPangrazio, 

 [*632]  who had constructed the addition, testified that it was his opinion that the water could [***9]  not have so traveled in this particular building.
In regard to the appellant's first contention, the testimony of Mr. Rosen, of the plant manager, and of Mr. DiPangrazio, all to the effect that the roof leaked, toegther with the photographs of the water in the building, could properly have led the trial judge to believe that the roof did leak.  The only testimony that the water did not, in fact, come through the guaranteed leakproof roof, was the speculation by Henry Correlli that the water could have crossed by way of the structural beam beneath the roof of the addition.  Balancing the mere speculation as to what might be an alternative cause against the testimony of the general contractor negating the possibility of that alternative, we can not say that the trial judge was clearly in error.
Appellant's next contention appears to be, although it is not specifically so stated, that the guarantee that the roof would be leakproof should not be enforced against it due to the fact that the leakage, if any, was caused by the settlement of the building, which in turn caused the flashing placed on the roof by it to crack and tear, and that the general contractor, not the roofer, is responsible [***10]  for damages caused by the settlement. Assuming that the roofer is not responsible, under the written guarantee, for damages due to settlement, we feel that there was sufficient evidence from which the trial judge could have found that the leakage was caused by defects within the roof rather than the building's supposed settlement and that the appellant was thereby liable.
Lastly, the appellant's argument is that the appellee did not adequately prove damages which would justify the trial court's award.  We agree.  The measure of damages in a case such as this, where the appellee seeks to enforce an express warranty, is that amount of money which will render that which is guaranteed to be as warranted.  From the testimony that some eighteen attempts had been made at repair by the appellant the trial court could have properly found that future attempts by appellant, at least, would be similarly ineffective and would not accomplish the purpose of the guarantee.  Thus, it was proper to award money damages which would allow another firm to 

 [*633]  correct the roof's leakage instead of making the appellee suffer further inadequate repairs to its roof by Correlli.  However, we do not [***11]  feel that the  [**922]  appellee has adequately proven what that dollar figure would be, and as a consequence there was nothing on which the trial court could have properly based his award of damages.
The trial court improperly allowed some testimony, over objection, as to what were the appellee's damages to contents of the building.  This was improper because the guarantee upon which the suit was instituted specifically precluded liability on the part of the roofer for such damages.  Since the dollar figure of damages ascertained by the trial court is the same as the cost of a new roof then being placed on the building, it seems likely that the trial court did not include in his award of damages compensation for the harm done to interior contents.  But since neither of the parties requested the trial judge to reduce to writing a memorandum stating the grounds for his decision and the method of determining the damages which he awarded, pursuant to the Rules, we have no means of knowing what the trial judge included in his damage figure.
Even if we assume that Judge Sodaro used as his measure of damages Fick's price for the new roof, there was no legally competent evidence to justify [***12]  his so doing.  First, there was no evidence to show what type of new roof was being put on by Fick, what type of warranty it carried, or how it was in any way comparable to the original roof. There was testimony that another bidder on the roof, Wallace and Gale Company, would guarantee its roof for twenty years, and for all that appears in the record the Fick roof could be similarly guaranteed, which would of course give appellee more than the initial warranty required.  Secondly, even if we assume that the Fick roof was of the same type and carries the same guarantee, there was no evidence to show that a new roof was needed as opposed to additional repairs to the defective roof. The president of the appellee testified that he desired a new roof and had contracted for its construction, but there was no testimony, expert or otherwise, to show that it was necessary in order for the warranty to be fulfilled, but on the contrary there was the testimony of Mr. Detorie, who said emphatically that a completely new roof was not needed.

 [*634]  We conclude that the appellee did prove that the appellant had breached its express warranty and that under this particular guarantee it was [***13]  entitled to the amount of money needed to make the roof as warranted, i.e., leakproof for a period of fifteen years under normal wearing conditions, but since the appellee did not adequately prove what those damages were, the case should be remanded pursuant to Rule 871 a so that additional evidence may be presented to determine the amount of damages.
Appellee should then be allowed, if it can, to introduce evidence to show that a new roof was needed and what would be the total cost of installing a new roof similar to the one Correlli contracted to install and carrying a similar fifteen year warranty. If the appellee is unable to prove that a new roof was needed to effectuate the guarantee, the appellee may then produce evidence as to what would have been the cost of making repairs on the first roof so that the guarantee could be fulfilled.
Judgment affirmed as to liability but case remanded without affirmance or reversal for a new trial as to damages.  Costs on this appeal to be paid by appellee.  

6 of 138 DOCUMENTS 

BOWERS v. EASTERN ALUMINUM CORPORATION 

No. 481, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 625; 214 A.2d 924; 1965 Md. LEXIS 479 

December 13, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Sodaro, J.  

DISPOSITION:
Finding affirmed, appellant to pay the costs.  

HEADNOTES:

Workmen's Compensation -- Finding Of Trial Judge That Claimant Was Independent Contractor Performing Work For Appellee Held Not Clearly Erroneous And Justified By Evidence -- Independent Contractor Is Not "Employee" Under Code (1957), Art. 101, Sec. 67 (3).  

SYLLABUS:

Proceeding by George Bowers to obtain workmen's compensation benefits as the alleged employee of the Eastern Aluminum Corporation.  The Workmen's Compensation Commission made an award for temporary total disability and hospital expenses, and from a decision of the trial court, sitting without a jury, which reversed this award, the claimant appeals.  

COUNSEL:
Herbert L. Grymes for the appellant.
No brief and no appearance for the appellee.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*626]   [**924]  This is an appeal from a decision of a judge of the Baltimore City Court, sitting without a jury, which reversed an award by the Workmen's Compensation Commission in favor of appellant, George Bowers,  [***2]  compensating him for temporary total disability and hospital expenses, resulting from an injury sustained during the course of his work.
In May of 1961, appellant was injured when a scaffold, upon which he was working with one Franklin Moyer, collapsed while the two were engaged in performing certain tasks "sublet" to them by appellee, a company active in the business of making home improvements.
The issue presented to the Court read: "Was the Eastern Aluminum Corporation, or its sub-contractor, the employer of George Bowers, claimant-appellee, at the time of the accidental injury under the terms of the Workmen's Compensation Act?" The trial court answered this issue "No," finding that at the time of Bowers' injury, Bowers and Moyer were working on a job given them by appellee as independent-contractor joint venturers.  The appellant argues that the court was clearly in error in this finding, but further contends that even if Bowers were a partner in a joint venture at the time of his injury, he was still entitled to compensation under the Maryland statute as a "working partner."
The first portion of appellant's contention turns entirely upon mixed questions of law and fact.  Nothing [***3]  will be gained if 

 [*627]  we set forth in detail the evidence supporting the court's findings of fact, and the evidence to the contrary.  Suffice it to say that there was substantial direct testimony, which was confirmed in several of its aspects, to support the findings.  We cannot say they were clearly erroneous, but, in fact, find ourselves in accord with them.  And we find no error in the application of the law  [**925]  to the facts.  When this situation develops, we must affirm.  Maryland Rule 886 a.
Turning to the latter contention of appellant, we held above that the trial judge was justified in finding that the relationship between Bowers and Moyer and the appellee was that Bowers and Moyer were independent contractors performing work for appellee.  This is dispositive of the appeal.  It is established law in Maryland that an independent contractor is not an "employee" under Code (1957), Article 101, §  67 (3).  Board of Sup'rs of Elections v. Balser, 172 Md. 187; Williams Constr. Co. v. Bohlen, 189 Md. 576; Snider v. Gaultney, 218 Md. 332.
Finding affirmed, appellant to pay the costs.  

7 of 138 DOCUMENTS 

SMITH v. STATE ROADS COMMISSION AND STATE ACCIDENT FUND 

No. 438, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 525; 214 A.2d 792; 1965 Md. LEXIS 469 

December 1, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Foster, J.  

DISPOSITION:
Judgment affirmed.  Costs to be paid by appellant.  

HEADNOTES:

Workmen's Compensation -- Intoxication Held To Have Been Sole Cause Of Employee's Death In This Case -- No Evidence Of Any Active Or Moving Cause Contributing To The Accident Aside From The Intoxication.  In the instant workmen's compensation case the lower court's finding that the employee's death resulted solely from his intoxication was affirmed.  The record showed that the employee, while driving his truck, crashed into a telephone pole and was killed. A specimen of his blood showed a concentration of alcohol amounting to 0.27%, indicating intoxication. The Court stated that where the employment does no more than supply the setting, the stage or the situation in which the injury occurs, and is no more than an inactive condition and not a moving cause, compensation must be denied.  Concurrence of intoxication and the setting, alone, is not enough.  There must be in addition, if compensation is to be awarded, some active or moving or contributing cause.  However, after reviewing all of the evidence in the case at bar, the Court concluded that the record was devoid [***2]  of any evidence, or inference, that there was present, besides intoxication, some active, moving cause contributing to the happening of the accident.
Workmen's Compensation -- Appeals From The Commission Are Tried De Novo.
Workmen's Compensation -- Exclusion Of Transcript Of Testimony Produced At The Commission Hearing And Of Certain Testimony At The Trial Held Not Prejudicial Where It Had Little Or No Bearing On The Issue Here.
Evidence -- Of Experiments Performed Out Of Court -- To Be Admissible, They Must Have Been Made Under Similar Conditions And Like Circumstances To Those Existing In The Case At Issue -- Trial Judge Here Held Not To Have Abused His Discretion When He Struck Out Testimony Of A Witness Concerning Such An Experiment Where The Conditions And Circumstances Were Not The Same As At The Time Of The Accident Here In Question.
Evidence -- Testimony Properly Excluded Here Where It Had No Relevance Or Probative Value.
Pleading -- Non-Jury Cases -- Motion For Directed Verdict Improper -- Should Make Motion To Dismiss At Close Of Opponent's Evidence -- Maryland Rule 535 -- Evidence Here Was Sufficient To Sustain Denial Of The Motion Regardless.  Where [***3]  the appellant, in a non-jury trial moved for a directed verdict at the conclusion of all the evidence, it was held that his motion was properly denied.  The Court pointed out that in non-jury cases, under Maryland Rule 535, the proper procedure is to make a motion for dismissal at the close of the opponent's evidence.  If the party waits until the close of all of the evidence then the motion becomes a nugacity because all of the evidence is then before the trier of facts and the determination of its legal sufficiency becomes an inseparable and necessary part of his decision.  In addition, it was held that there was sufficient evidence in this case to support the judge's ruling even if the proper motion had seasonably been made.  

SYLLABUS:

The State Roads Commission, employer, and the State Accident Fund, insurer, appealed from the decision of the Workmen's Compensation Commission in favor of the claimant, Mary Virginia Baltzell Smith, widow of the deceased employee.  From the lower court's finding reversing part of the decision of the Commission, and the judgment entered thereon, the claimant appeals.  

COUNSEL:
Charles L. Carter, Jr., with whom were O'Connor & Preston, Leroy W.  [***4]   Preston and Edwin F. Nikirk on the brief, for appellant.
Charles R. Goldsborough, Jr., Special Assistant 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 appellees.  

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

OPINIONBY:
McWILLIAMS 

OPINION:

 [*528]   [**793]  On 17 September 1962, within a few minutes of 8:00 p.m., Joseph Leo Smith, an employee of the State Roads Commission, on his way home, drove his pickup truck off of Liberty Road and struck a telephone pole. He sustained injuries which caused his death.  A post mortem examination was performed the following morning.  In a specimen of blood taken from the heart there was present a concentration of alcohol amounting to 0.27%, indicating intoxication.
Within sixty days the widow (appellant), on behalf of herself and six minor children, presented her claim to the Workmen's Compensation Commission.  A hearing was held 16 January 1963 on two issues.  Was the deceased in the course of his employment [***5]  when fatally injured?  Was the accident the result of intoxication? The Commission found that the deceased was in the course of his employment and that the accident did not result solely from his intoxication. The employer and its insurer (appellees) noted an appeal to the Baltimore City Court.  By agreement, the case was submitted for determination to the court without a jury on the single issue of intoxication. This appeal is from the court's finding that Smith's death resulted solely from his intoxication.
Not since S. Rosenbloom, Inc. v. Willingham, 190 Md. 552, 59 A. 2d 311 (1948), have we been asked to consider the language of Sections 15 and 45 of Art. 101 of the Maryland Annotated Code (1957), which provides that where injury or death results solely from the intoxication of the injured employee, no compensation shall be paid.  In that case the employee, who during twenty years of married life had never been seen intoxicated by his wife, drove his car off of the Matapeake Ferry at Sandy Point and a few minutes later, after the ferry had left, turned the car around, drove it toward the empty ferry slip and plunged into the Chesapeake Bay.  No bottle was found on his person [***6]  and the police who attempted to revive him by artificial respiration did not detect any odor of alcohol. Judge Henderson, for the Court, said at 558: "No one saw the decedent take a drink.  His conduct may have been due to alcohol or something else.  *** The action of the decedent was more suggestive of dementia than intoxication. We cannot say that the trial court 

 [*529]  was clearly wrong in finding that causes other than intoxication played a part in the accident." Judge Henderson also reviewed the earlier cases, in all of which the evidence of intoxication was either conflicting, minimal or presented situations demonstrating that intoxication was not the sole cause of the death or injury.
In the case before us the fact of intoxication, if not actually admitted, is established, for the first time in Maryland, by evidence which is both overwhelming and unchallenged.  Whether or not the trial judge was clearly erroneous in concluding that the death of Smith resulted solely from his intoxication is the issue raised by appellant's principal contention and the one which we shall consider first.
 [**794]  I.
The evidence produced at the trial shows that Smith, a resident [***7]  of New Windsor, was 40 years old, 6 feet tall, and weighed 214 pounds.  He commuted daily in his 1948 half-ton Ford pickup truck to White Marsh, a distance of about 55 miles, where the construction of the Northeastern Expressway (now Kennedy Expressway) required his services as an inspector.  Because rain fell during most of the last day of his life, Smith and Jack Hartman, another inspector, quit work around 3:30 and went to a tavern nearby.  Smith borrowed five dollars from Hartman and they each had two glasses of draft beer and a barbecue sandwich.  Hartman recalled that Smith had a few dollars besides the five he had loaned him.  They both left around four o'clock, each going his separate way.  Where Smith went or what he did thereafter we do not know.
At 8:08 p.m., Officer Robert Borgmann of the Baltimore County Police received a call directing him to investigate an accident on Liberty Road at a point 8.1 miles north of its intersection with the Beltway.  Upon arrival he found Smith's severely damaged truck lying on the north shoulder of the road just beyond a shallow curve, slightly banked to the left, and 47 feet beyond a telephone pole with which it had collided.  The front [***8]  wheels and the front axle were about half way between the pole and the truck. The pole itself was fractured about four feet above the ground and the impact had pushed it at ground level about a foot away from its normal position.  There were 

 [*530]  no marks on the road or the shoulder to indicate skidding or sliding prior to the collision.  Although it had stopped raining, the surface of the road was damp. Liberty Road at this point is 25 feet wide with a solid double yellow line in the center.  The posted speed limit is 30 miles per hour.
There was no evidence of any mechanical defect in the truck nor any evidence of malfunction in its operation.  There was no evidence of blowout or other tire trouble nor of any defect in the road.
Dr. Russell S. Fisher, the Chief Medical Examiner, testified that both the American Medical Association and the National Safety Council take the position that a person with a concentration of 0.15% alcohol in his blood must be considered under the influence of alcohol insofar as motor vehicle operation is concerned. n1 He said the presence of 0.27% would indicate that the person was highly intoxicated and that he would show this in terms of some [***9]  staggering and a very clear cut and evident decrease in his ability to perform finer motions such as braking or steering an automobile, walking in a straight line, or any activity requiring a high degree of physical coordination, and that many people "pass out" at this level.  He also said that the amount of alcohol in Smith's body at the time of the accident amounted to a pint of one hundred proof whiskey and that he did not drink less than that amount because that was the amount that was present.

n1 In drunken driving prosecutions 0.15% is prima facie evidence that the defendant was under the influence of intoxicating liquor.  Md. Code Ann. Art. 35 §  100 (a) (3) (1957 cum supp. 1965).

It was stipulated that in September of 1962 in the eight mile stretch of Liberty Road between the Baltimore Beltway and the scene of the accident there were located six bars, saloons or cocktail lounges.  It is conceded that Smith habitually used this part of Liberty Road going to and returning from work.
Appellant claims that [***10]  there were other factors besides intoxication which contributed to the accident.  She cites the fact that the road surface was damp; that it was a dark, cloudy day; that illumination was poor; that it was hazy; that excessive speed is indicated; that the telephone pole was 2 feet east of the shoulder; that this was the fifth of a series of curves; 

 [*531]  that some of the curves were double curves. She suggests that any number of things could have happened, such as Smith's having been  [**795]  blinded by on-coming lights; swerving to avoid an animal; being run off the road by an on-coming car; sneezing; falling asleep.  She argues that something else must have contributed to the accident and that a finding that intoxication was the sole cause is pure speculation.
She might, with equal force, have argued that the road ran north and south instead of east and west, that the sun was not shining, that it was September instead of May.  We all know that a road surface is damp after a rain and that tire adhesion may be less precise than it is on a dry road, depending, of course, on the type of tread and its condition, the degree of inflation, the surface of the road, the efficiency [***11]  of the vehicle's suspension and the judgment and skill of the operator.  Every motorist knows that driving on wet, damp roads is one of the facts of life common to all users of the highways.  The day was indeed dark and cloudy.  But what of that?  This accident happened at night.  Perhaps illumination was poor at the scene of the accident but must we not assume that Smith, as the law requires, had turned on his headlights?  Perhaps it was hazy, but there are many degrees of haziness and there is no evidence here that the haze, if any there was, in any way inhibited visibility.  That the pole was 2 feet east of the shoulder has no relevance.  The shoulder was 7 feet wide which would put the pole at least 9 feet from the traveled portion of the road.  It is not suggested that under the circumstances this amounted to a hazard in any way peculiar to Smith's daily travel.  Much is made of the curves and the claim of excessive speed. It is impressed upon us that this is the fifth of a series of curves and that some of them were double curves. What the other four, whether single or double, have to do with this accident has not been demonstrated.  The photographs in evidence show a simple,  [***12]  shallow, slightly banked left-hand curve. One could speculate endlessly on what speed would be too great for its successful negotiation.
Appellant argues that the damage to the truck and the nature of Smith's injuries require a finding that his speed was "excessive" or, in other words, that he was going too fast to get 

 [*532]  safely around the curve. Appellant does not provide us with a definition of "excessive" as used herein.  "Excessive speed" is one side of an equation, the other side of which has many factors which can be arranged in infinite combinations.  What weight, for instance, should be given to the skill and experience of the driver?  Was he a Stirling Moss or a teen-ager just licensed?  Was he drunk or sober and if drunk, how drunk? How shall the vehicle be rated?  Was it a gran turismo or a candidate for the junk yard?  What of the suspension -- simple or sophisticated?  Were the tires sound, balanced, properly inflated, with adequate treads?  Did the vehicle have its engine in the front or in the rear?  Was it driven by the front wheels, rear wheels, or all four wheels? What was the condition of the road -- concrete, smooth blacktop, rough macadam, covered [***13]  with oil, mud, sand, snow, ice?  What of the weather?  Was it light, dark, clear, rainy, foggy?
We know nothing of Smith's driving skill.  We know nothing of the condition of his truck except that it was 14 years old.  We don't know how fast it could safely be driven around the curve either by Smith or by Stirling Moss.  It is entirely possible that a skilled driver could have driven Smith's truck through the curve at speeds greater than his old truck could attain.  We know that the curve was there but in itself this signifies nothing.  We do not believe there is any meaningful connection between the fact of the curve and the accident.
About all that can be said with certainty concerning speed is that Smith was going too fast to be running into telephone poles with safety.  The absence of any evidence of skidding or sliding is some indication that Smith did not or could not reduce his speed, whatever it was, before striking the pole. Nor is there any basis for assuming that Smith could not have brought about the damage to his truck, to the pole, and to  [**796]  himself at a speed of 30 miles per hour or less.
Appellant complains that the trial judge was guilty of speculation [***14]  because he declined to attach any significance to the fact that the road was damp, that the day was dark and that there were curves and indications of "excessive speed." In the next breath she chides him for not speculating about blinding lights, dogs, cats and other animals, sneezing, falling asleep, being 

 [*533]  chased off the road by another car and "countless other possibilities" despite the fact that the record is devoid of any evidence of the things she mentions.  Indeed, to quote from her brief, "The exact factor that caused him to run off the road is a matter of strict conjecture."
Appellant offers in support of her contention decisions n2 of the courts of Arkansas, New York and the District of Columbia.  Since we think these decisions are inapplicable here we shall not undertake a discussion of them.  The Arkansas statute n3 makes the Commission's findings of fact conclusive and binding on the court and restricts the review to questions of law.  Also prohibited is the production on appeal of any additional evidence.  In New York n4 the decision of the Board is final as to all questions of fact and, except in certain cases, as to all questions of law.  In the District [***15]  of Columbia n5 the findings of the Deputy Commissioner are conclusive upon review, if supported by evidence.  Maryland, on the other hand, in common with sixteen other states, authorizes a review of the facts as well as the law.  Our statute contemplates a trial which essentially is de novo.  Richardson v. Home Mutual, 235 Md. 252, 201 A. 2d 340 (1964).

n2 Phoenix Assurance Company of New York v. Britton, 289 F. 2d 784 (D. C. Cir. 1961); Maryland Casualty Co. v. Cardillo, 107 F. 2d 959 (D. C. Cir. 1939); Cox Bros. Lumber Co. v. Jones, 220 Ark. 431, 248 S. W. 2d 91 (1952); Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113 (1944); Van de Water v. Emmandine Farms, Inc., 18 App. Div. 2d 1119, 239 N. Y. S. 2d 182 (1963); Willett v. Irona Milk Haulers, 17 App. Div. 2d 1011, 233 N. Y. S. 2d 822 (1962); Department of Taxation and Finance v. DeParma, 254 App. Div. 615, 3 N. Y. S. 2d 120 (1938).
n3 Ark. Stat. Ann., Tit. 81, §  1325(b) (1957 Repl. Vol. 1960).
n4 N. Y. Workmen's Compensation Law (Consolidated Laws 1962).
n5 Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. 901-50 (1957).

 [***16]  
We are urged to consider two cases from New Jersey n6 where, as in Maryland, appeals are tried de novo.  In O'Reilly v. Roberto Homes, 31 N. J. Super. 387, 107 A. 2d 9 (1954), despite a conflict in the testimony in regard to tire marks and 

 [*534]  the fact of intoxication, the Commission refused to award compensation.  The court reversed the Commission and found in favor of the claimant. Because there was competent believable evidence sufficient to sustain the court's finding it was not disturbed by the appellate court.  Judge Foster, the trier of facts in this case, also reversed the Commission.  If the evidence supporting his findings is legally sufficient then, if we follow the New Jersey court, we should not disturb his findings.

n6 N. J. Rev. Stat., §  34:15-66 (1937).

The other New Jersey case is Olivera v. Hatco Chemical Co., 55 N. J. Super. 336, 150 A. 2d 781 (1959), where the employee, who was killed by a piece of timber thrown from a nearby centrifuge, had 0.163% alcohol in his [***17]  system.  A medical expert testified that there was no evidence to show that the amount of alcohol in his blood had anything to do with his death.  Holding that the employee's death flowed from the operation of the machine, the court, quoting Kulinka v. Flockhart Foundry Co., 9 N. J. Super. 495, 75 A. 2d 557 (1950), said at 789,

"'*** in order to defeat recovery the employer must show by the greater weight of the evidence that the employee's injury was produced solely by  [**797]  his intoxication. In other words, the employment must supply no more than the setting, the stage, the situation in which the fall occurred; it can be no more than an inactive condition as distinguished from a moving cause.  If the hazards or risks which are incidental to the employment concur with the employee's insobriety in producing the fall or if the hazards or risks contribute efficiently to the production of the fall, compensation cannot then be denied.  If the Legislature intended intoxication as a concurrent or contributory cause of an injury to effect a deprivation of the benefits of the statute it would have been a simple matter to have said so.'" (Emphasis supplied.)
Appellant [***18]  argues that where intoxication and the hazards of the employment concur the claimant must prevail; that Smith, even though intoxicated, was in the course of his employment and compensation cannot be denied his widow.  If appellant is 

 [*535]  right, then the Maryland statute is meaningless and we do not agree that it is meaningless.  We agree with the New Jersey court that if the employment does no more than supply the setting, the stage or the situation in which the injury occurs, if it is no more than an inactive condition and not a moving cause, compensation must be denied.  Concurrence of intoxication and the setting, alone, is not enough.  There must be in addition, if compensation is to be awarded, some active or moving or contributing cause.
In Calka v. Mamaroneck Lodge, 285 App. Div. 1093, 139 N. Y. S. 2d 316 (1955), there was no doubt about the employee's intoxication. He drank three or four bottles of beer before leaving a tavern at 5:45 p.m. Where he went or what he did for the next 2 1/2 hours is unknown.  At 8:20 p.m. on a divided highway, a witness heard brakes screeching and saw the employee's car strike an island and then crash into a tree.  The impact [***19]  killed him.  The court's comment is apropos:
"An examination of his blood disclosed an alcoholic content of 0.29 per cent. Section 70, subd. 5 of the Vehicle and Traffic Law declares that evidence of the presence of the 0.15 per cent of alcohol in the blood is prima facie proof of intoxication. A pathologist expressed an opinion that the decedent was intoxicated at the time of his death.  The Board found that the accident was due solely to the decedent's intoxication and, pursuant to the dictate of Section 10 of the Workmen's Compensation Law, disallowed the claim.  The proof of intoxication considered with the manner in which the accident happened constitutes the substantial evidence required to overcome the presumption found in Section 21 of the Workmen's Compensation Law that the accident did not result solely from the intoxication of the employee." Id at 317.
The notion that the claimant must prevail where intoxication and the hazards of employment concur, without more, was rejected by the Court of Appeals of New York in Shearer, et al. v. Niagara Falls Power Co., 242 N. Y. 70, 150 N. E. 604 (1926). The Court said:

 [*536]  "Doubtless many cases [***20]  may be suggested where intoxication has little or no relation to the injury; where the sober and drunk are alike exposed to the risk.  The greater the added danger from intoxication, the greater the duty to keep sober.  If, in a perfectly safe place, the employee falls because he is drunk and injures himself, it is clear that the injury results solely from the intoxication, but it would be unreasonable to deny compensation only in such cases.  Here death was due to the fall from the bridge girder, but if the fall was due solely to the intoxication of the employee the case does not come under the act *** we may state the rule of law as follows: If the Board reaches the conclusion on the  [**798]  evidence that Shearer was drunk at a place where if he fell he would probably be killed, and that he fell owing to his drunkenness, compensation should be denied." Id at 605.
We can not say Judge Foster's finding that intoxication was the sole cause of Smith's unfortunate and untimely death was clearly erroneous and we so hold.  Space Aero Products Co., Inc. v. R. E. Darling Co., Inc., 238 Md. 93, 208 A. 2d 74 (1965). Talley v. Dept. of Correction, 230 Md. 22, 185 A. 2d [***21]  352 (1962). Maryland Rule 886a.
II.
Appellant tells us that the trial judge committed error in failing to admit into evidence the transcript of the testimony produced at the hearing before the Commission, as well as some of the testimony of the same witnesses produced at the trial.  The record is not entirely clear as to whether the questions and answers before the Commission were formally offered in evidence, so while it may be that the judge "failed" to admit the transcript it can not be said that he refused to admit it.  In any event the same witnesses testified at the trial and substantially the same testimony was either produced or proffered.  What was excluded appears to have little or no bearing upon the single issue presented here.  Therefore, even if the trial judge erred, the error was harmless.

 [*537]  III.
Over objection the trial judge allowed Officer Borgmann to testify, as a witness for appellant, concerning an experiment he performed a year or so after the accident.  He said he wanted to see what would happen "if you drove straight out the road, driving within a few feet of the yellow line in the center, and you hold the wheel straight." In the course of his [***22]  experiment he discovered, so he said, that "the road has enough bank in it to the left when it goes around the curve to lead your vehicle right into this pole." As one might expect Judge Foster's natural skepticism rose immediately to the surface. He queried, "But if you hold your wheel straight, quite obviously you'll continue in a straight line?" Undaunted, the officer replied, "It won't continue in a straight line *** the bank in the road pulled the vehicle around." He was careful to state, however, that he did not claim to be an expert in this area, a negligible concession, under the circumstances, as the court would probably have reached a similar conclusion.  Appellant contends that it was error for the judge to strike out this testimony.
For evidence of experiments performed out of court to be admissible they must have been made under similar conditions and like circumstances to those existing in the case at issue.  In Richardson v. State, 90 Md. 109, 118, 44 Atl. 999 (1899) we held that the results of an experiment were admissible because:

"The record shows that the conditions were as nearly identical when the experiments of Unger were made, as it was in human [***23]  care and caution to have them.  The seat at the railroad and the street lamp were the same, and in the same locations; the lamp was burning with the same power and brilliancy; the season of the year, and the atmospheric conditions, were the same; the hour about 35 minutes later only, but at that date the sun set twenty-five minutes later than on May 2nd, and the decline of the natural light must have been about the same; no cause can be suggested for any difference in the diffusion of light from the lamp, and there was no change in any of the surroundings of the place."

 [*538]  And in Keyser v. State, 95 Md. 96, 99, 51 Atl. 1057 (1902), Judge Fowler, for the Court, said:

"For, assuming that the question submitted a case similar to the case the Court  [**799]  was trying, yet unless the witness had actually himself made the experiment 'under precisely similar conditions and circumstances' he was not a competent witness to give his opinion as to whether the prosecuting witness could identify the traverser under the circumstances and conditions testified to by him.  *** But the opinion so held to be admissible must be based upon precisely similar conditions and  [***24]   circumstances."
Except for the fact that Officer Borgmann's experiment was performed at the same curve there are no conditions or circumstances which are the same.  He was driving a police car; Smith was driving a 1948 pickup.  For Smith the road was damp; for the officer it was dry.  The test was performed in daylight; the accident happened at night.  The officer was within a few feet of the yellow center line; we don't know where Smith was.  The speed in the test was 30 to 35 miles per hour; Smith's speed is unknown.  Finally and principally, the officer was sober and alert; Smith's judgment was impaired by his intoxication.
Trial judges are vested with a generous amount of discretion in this area and this discretion will not be disturbed on appeal unless abuse is apparent.  20 Am. Jur. Evidence, § §  758-59 (1939); 5A C.J.S. Appeal & Error, §  1604(a) at 90 (1958).  In our opinion Judge Foster did not abuse his discretion in striking out the officer's testimony.  In any case it is obvious, even if he had admitted it, that he was not going to believe it.  Under the circumstances it is unlikely that appellant was prejudiced by its exclusion.
IV.
Appellant, over objection,  [***25]  was allowed to testify that her husband told her he used Liberty Road to the Beltway in traveling to and from work.  The complaint that the trial judge was guilty of prejudicial error in striking out this testimony borders on 

 [*539]  the frivolous, although it might be noted that no mention of it was made at argument.  Putting aside the question whether such testimony is otherwise inadmissible, see Smart v. Graham, City Comptroller, 179 Md. 476, 20 A. 2d 574 (1941), Mutual Fire Insurance Co. v. Ritter, 113 Md. 163, 77 Atl. 388 (1910), it ceased to have any relevance or probative value after the only issue upon which it might impinge was withdrawn before the trial in the lower court.
V.
When all of the evidence, both claimant's and employer's, had been submitted, counsel for appellant said he "would move for a directed verdict in favor of the claimant * * *." (Emphasis supplied.) No reasons were given.  The court's denial of the motion is alleged to be error.
Rule 535 of the Maryland Rules of Procedure provides, in part, as follows:

"In any action tried by the court without a jury at law or in equity, any party, without waiving his right to offer evidence [***26]  in the event the motion is not granted, may move at the close of the evidence offered by an opponent for a dismissal on the ground that upon the facts and the law he has shown no right to relief.  * * *"
This rule was designed especially for non-jury situations and we have had occasion in the past to observe that a "motion for a directed verdict" is not the proper motion.  M & R Builders v. Michael, 215 Md. 340, 138 A. 2d 350 (1958); Eastern Contractors v. Zinkand, 199 Md. 250, 86 A. 2d 492 (1952). Nor is it proper for the party making the motion to do so at the close of all of the evidence, as did the appellant here, rather than at the close of his opponent's evidence.  The main purpose of the rule is to allow a party to test the legal sufficiency of his opponent's evidence before  [**800]  submitting evidence of his own.  Should he prevail at this point he avoids the necessity of going further and as well the risk that his own evidence may supplement his opponent's evidence enough to provide the missing legal sufficiency. If he waits until the close of all of the evidence then the motion becomes a nugacity because all of the evidence is 

 [*540]  then before the [***27]  trier of facts and the determination of its legal sufficiency becomes an inseparable and necessary part of his decision.  In jury cases, where a different climate prevails, a motion for a directed verdict offered at the close of all of the evidence gives the trial judge an opportunity to make a quantitative evaluation of the evidence, not to inform any decision to be made by him, but only to assess the propriety of allowing the jury to make findings of fact.  The jury does the deciding; the judge simply sees to it that they have enough material to work with.  We are of the opinion, under the circumstances here presented, that the rule alone provides sufficient reason for the denial of appellant's motion.
There is, however, another and perhaps more obvious reason which supports the ruling of the trial court.  It seems very clear to us that, even if the proper motion had seasonably been made, the court, in order to grant the motion, would have been obliged to close his mind to the testimony of Dr. Fisher, the absence of any evidence of defect or malfunction in the truck, the fact that Smith's whereabouts and activities are unaccounted for during the four hours before the accident and [***28]  the fact that the record is utterly devoid of any evidence, or indeed any inference, that there was present, besides intoxication, some active, moving cause contributing to the happening of the accident.  Talley v. Dept. of Correction, supra. But appellant contends she was not given the benefit of the presumption embodied in Sec. 64 of Art. 101 of the Maryland Code Annotated. n7 The short answer to this contention is that there was "substantial evidence to the contrary." She contends also that she was denied the benefit of the statutory presumption in favor of the correctness of the decision of the Commission.  Md. Code Ann. Art. 101, §  56(c).  This contention was fully answered in Greenwalt v. Brauns Bldg. Specialties Corp., 203 Md. 313, 100 A. 2d 804 

 [*541]  (1953) and any further discussion would serve no useful purpose.

n7 "In any proceeding for the enforcement of a claim for compensation under this Article, it shall be presumed in the absence of substantial evidence to the contrary:
***"(d) That the injury did not result solely from the intoxication of the injured employee while on duty * * *"

 [***29]  
For the reasons set forth above the judgment will be affirmed, the costs to be paid by the appellant.
Judgment affirmed.  Costs to be paid by appellant.  

8 of 138 DOCUMENTS 

LERCH v. MARYLAND PORT AUTHORITY, et al.  

No. 268, September Term, 1965 

Court of Appeals of Maryland 

240 Md. 438; 214 A.2d 761; 1965 Md. LEXIS 465 

November 26, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Prendergast, J.  

DISPOSITION:
Decree affirmed; costs to be paid by appellant.  

HEADNOTES:

Municipal Corporations -- Act Authorizing Maryland Port Authority To Issue Bonds To Finance An International Trade Center Held Constitutional -- Center Held To Be For A Public Purpose -- Leasing Of Portions Of Center To Produce Incidental Revenues Held Not To Defeat The Public Purpose.  In the instant case it was held that the proposed development and construction of an International Trade Center by the Maryland Port Authority was for a public purpose, not a private one, and therefore, Chapter 603 of the Laws of Maryland of 1965 and the Resolution of the Port Authority authorizing the Authority to issue bonds to finance the Center and to take other steps to carry out its program were not unconstitutional.  It was pointed out that because Baltimore is a city built around a seaport, the development of its harbor so as to encourage the growth of commerce is of distinct public interest and purpose.  It was also noted that the enabling act of the General Assembly (Chapter 602 of the Laws of 1965), which authorized the Port Authority to issue bonds [***2]  to finance the Center, contained a strong declaration of public policy.  The preamble to Chapter 602 set forth legislative findings that the unification at a single, centrally located site of servicing functions and activities connected with water-borne commerce and trade has the single object of preserving the economic well-being of the State and is in the public interest. The Court stated that such legislative findings are entitled to substantial weight.  In addition, the Court did not feel that the fact that the proposed plan was concerned with the centralization of office operations, as opposed to the development of wharves, docks, piers, etc., and the fact that it was not proven that the Center will necessarily cause more trade in Baltimore were sufficient reasons to hold that the Center was not for a public purpose. It was also held that the plan to lease portions of the Center to tenants wholly unrelated to the maritime industry for the production of incidental revenues did not defeat any public purpose. The Court noted that the use of portions of the Center for the production of incidental revenue was expressly made auxiliary to the accomplishment of the main purpose [***3]  of the Center, which is public.
Municipal Corporations -- Constitutional Prohibition Against Creation Of A Debt Of The State Held Not Violated Here Where The Maryland Port Authority Was To Use Cash From Its General Funds To Construct An International Trade Center And The Center Was To Be Pledged As Security For Revenue Bonds To Be Issued.  In the instant case it was held that the use of the Maryland Port Authority's general funds to construct an International Trade Center and the conveyance or assignment of the Center to a trustee as additional security for bonds would not be the contracting of a debt by the State or the pledging of its faith and credit in violation of Section 34 of Article III of the Maryland Constitution.  The Court pointed out that when existing valuable, income-producing property of a political subdivision is mortgaged as security for the payment of bonds used to finance the construction of a facility, a debt is created.  Here, however, there was no pledge of existing property, but only the use of cash for the construction of the proposed facility from the Authority's general funds.  No burden of taxation on future generations by the future sale of existing [***4]  property was involved.  The pledge of the Center, when built, as security for the Authority's bonds would not jeopardize any property of the State which now exists.  If there is default in the bonds and the Center is sold for the benefit of the bondholders, the State will lose nothing which it now has.  The future burden on the taxpayers will be no greater than if the Center had never been built. Thus, the Court concluded that the constitutional prohibition had not been violated.
Municipal Corporations -- The Issuance Of Revenue Bonds By The Maryland Port Authority For The Construction Of An International Trade Center Coupled With The Leasing Of A Portion Of The Center For The Production Of Incidental Revenues Held Not To Violate The Constitutional Provisions Against Giving Or Lending The Credit Of The State To Or In Aid Of Any Individual, Association Or Corporation, Or Involve The State In The Construction Of Works Of Internal Improvement.  

SYLLABUS:

Petition by Richard H. Lerch against the Maryland Port Authority, and others, for injunctive and declaratory relief.  From a decree dismissing the bill, plaintiff appeals.  

COUNSEL:
Edward O. Clarke, Jr., with whom were Richard W.  [***5]   Case and Smith, Somerville & Case on the brief, for appellant.
Lewis A. Noonberg and Charles C. G. Evans, with whom were Piper & Marbury on the brief, for appellees.  

JUDGES:
Prescott, C. J., and Horney, Marbury, Oppenheimer and Barnes, JJ.  Oppenheimer, J., delivered the majority opinion of the Court, in which Prescott, C. J., concurs.  Concurring opinion at page 463, infra.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*441]   [**762]  This appeal involves the validity of a proposed issue of revenue bonds by the Maryland Port Authority for the acquisition and construction of an International Trade Center in the port of Baltimore.  Under the proposed issue, the Authority may be required to deposit with the trustee under the trust agreement monies which, with the proceeds of the bonds, shall be used to pay the cost of the Center, and the Center is to be conveyed to the trustee as security for the payment of the principal of and interest on the bonds.  The trust agreement is to provide that the Authority may make arrangements for the leasing of portions of the Center which may not be devoted to purposes of the Center other than for the production of incidental revenue for expenses [***6]  and financial obligations of the Authority in connection with the Center.  The appellant, a resident, taxpayer, voter, and property owner in Baltimore City, brought a petition in the Circuit Court No. 2 of Baltimore City for an injunction and declaratory relief against the Authority and its members, on the ground that the act of the General Assembly and the Authority's resolution under which the bonds are to be issued, are unconstitutional, null and void.  The appellees answered and a hearing was held at which testimony was taken.  The Chancellor filed an opinion holding the statute valid and the Authority's contemplated action lawful.  This appeal is taken from the decree dismissing the bill.
The Authority is an instrumentality of the State of Maryland; it was created by Chapter 2 of the Laws of Maryland of 1956 (March Special Session), as amended, now codified as Sections 1-25, inclusive, of Article 62B of the Annotated Code of Maryland (1964 Replacement Volume), as amended (the Act).
Section 10 of the Act authorizes and empowers the Authority to issue bonds for the purpose of providing funds for paying the cost of any "port facilities", which are defined in Section 4 of the Act.  [***7]  Section 10(d) states that bonds issued under its provisions shall not be deemed to constitute a debt of the State or of any political subdivision thereof or a pledge of the faith 

 [*442]  and credit of the State or of any such political subdivision. Section 10 also provides that  [**763]  such bonds "shall be stated to mature at such time or times, not exceeding forty (40) years from their date, as may be determined by the Authority."
Section 12 provides that bonds issued under the Act "shall be secured by a trust agreement by and between the Authority and a corporate trustee, which may be any trust company, or bank having the powers of a trust company, within or without the state."
Chapter 602 of the Laws of Maryland of 1965 (Chapter 602) authorized the financing of an international trade center by amending Section 4 of the Act to include an "international trade center" within the definition of the term "port facility" for which bonds might be issued by the Authority under Section 10.  Chapter 602, which recited that it took effect from the date of its passage, was signed by the Governor on April 8, 1965; it added the following language to Section 4:

"The term 'port [***8]  facility' also shall mean and shall include an international trade center constituting a facility of commerce and consisting of one or more buildings, structures, improvements and areas necessary, convenient or desirable in the opinion of the Authority for the centralized accommodation of functions, activities and services for or incidental to the transportation of persons by water, the exchange, buying, selling and transportation of commodities and other property in international and national water-borne trade and commerce, the promotion and protection of such trade and commerce, and governmental services related to the foregoing and other Federal, State and municipal agencies and services, including but not limited to foreign trade zones, offices, marketing and exhibition facilities, terminal and transportation facilities, custom houses, customs stores, inspection and appraisal facilities, parking areas, commodity and security exchanges, and, in the case of buildings, structures, improvements and areas in which such accommodation is afforded, shall include 

 [*443]  all of such buildings, structures, improvements and areas, notwithstanding that other portions of such buildings,  [***9]  structures, improvements and areas may not be devoted to purposes of the international trade center other than the production of incidental revenue available for the expenses and financial obligations of the Authority in connection with the international trade center."
On April 8, 1965, the Governor also signed Senate Bill No. 457, which was designated Chapter 603 of the Laws of Maryland of 1965 (Chapter 603).  Chapter 603 similarly recited that it would take effect from the date of its passage; it amended Sections 10 and 12 of the Act to provide that the trust agreement securing bonds issued under the Act "in the event that such bonds are issued for the purpose of providing funds for paying the cost of any port facility, may convey or assign such port facility as security for the payment of the principal of and the interest on such bonds."
On April 9, 1965, the members of the Authority adopted the Resolution which provided for the Authority to proceed with its plan and program for developing an international trade center as contained in a report approved by the Authority on March 24, 1965.  The Resolution authorized the following steps, if necessary to make the plan and program [***10]  feasible:

1. The Authority will issue bonds pursuant to the Act, as amended by Chapters 602 and 603.  The Resolution contemplated that the trust agreement securing such bonds may contain
(i) "a provision requiring the Authority to deposit with the trustee under the trust agreement monies in a specified amount simultaneously with the execution and delivery of the trust agreement, which monies, together with the proceeds of the bonds, shall be  [**764]  used to pay the cost of an international trade center in the port of Baltimore," and
(ii) "a provision conveying or assigning the international trade center to said trustee as security for the payment of the principal of and interest on the bonds 

 [*444]  and authorizing said trustee to sell such international trade center upon default in the payment of principal of or interest on the bonds and to apply the proceeds of sale to the payment of the principal of and interest on said bonds."

2. The Authority will make arrangements for the leasing of portions of the international trade center "which may not be devoted to purposes of the international trade center other than the production of incidental revenue available [***11]  for the expenses and financial obligations of the Authority in connection with the international trade center."
The Resolution provided that the bonds should contain a statement on the face thereof that neither the Authority nor the State nor any subdivision thereof shall be obligated to pay the same or the interest thereon except from revenues and from the proceeds of any security held by the trustee and that neither the faith and credit nor the taxing-power of the State or any political subdivision thereof is pledged to the payment of the principal of or interest on such bonds.
Mr. W. Gregory Halpin, Deputy Director of the Maryland Port Authority, was the only witness at the hearing below.  His testimony was uncontradicted.  He testified regarding the Authority's plans for the Center.  The Authority has already spent approximately $ 7,000 of public funds in the planning and development of the Center, and $ 100,000 has been budgeted for the fiscal year which commenced July 1, 1965.
The Authority has selected a site for the Center, an area south of the present Authority facilities at Pier No. 2, Pratt Street, in the inner harbor itself.  At present there are no defined limits [***12]  to the size of the Center.  The Center will be part of Baltimore City's planned redevelopment of the inner harbor and City Hall plaza which calls for extensive changes in the area surrounding the inner harbor. Pratt Street will be widened still further than its present six lanes, and the Center will be connected by a pedestrian bridge or overpass to the City Hall plaza or mall which will lead to a complex of municipal government buildings and adjacent commercial buildings.  The Center is planned to be one of the first, if not the first, major project 

 [*445]  completed in the redevelopment of the inner harbor. Other portions of Mr. Halpin's testimony will be referred to in the discussion which follows.
The appellant, to support his conclusion that Chapter 603 and the Authority's Resolution are unconstitutional, null and void, makes three contentions, several of which are double-pronged.  The same contentions were made below.  For the purposes of this opinion, we have re-arranged the order in which they were presented.  They are as follows: I -- The development and construction of the Center is not a public purpose; and, in any event, the leasing of portions of the Center for [***13]  the production of incidental revenues would defeat any public purpose. II -- The use of the Authority's general funds to construct the Center and the conveyance or assignment of the Center to a trustee as additional security for bonds as proposed by the Authority would be the contracting of a debt in violation of Section 34 of Article III of the Maryland Constitution.  III -- The construction of the Center, coupled with leasing of a portion of the Center for the production of incidental revenues, would give or lend the credit of the State in aid of individuals, associations or corporations and would involve the State in the construction of works of internal improvement, all in violation of Section 34 of Article III of the Maryland Constitution.
 [**765]  I
The first part of the appellant's contention, under this heading, is that the development of the Center is not a public purpose. In his able opinion, Judge Prendergast stated certain uncontrovertible facts.  He said:
"Baltimore is a city built around a seaport.  Without the port there would be little reason for the existence of the city in its particular location, and Baltimore might have encountered long ago the fate of [***14]  its rival in Colonial days, Joppa.  With the growth of the port, the City has become a large metropolis so that it is a matter of grave public concern that the port at all times be maintained at peak size and efficiency.  In recent years strong competition has arisen with the building of the St. Lawrence Seaway and certain 

 [*446]  modifications of tariff rates favorable to northern ports."
In Marchant v. Mayor and City Council of Baltimore, 146 Md. 513, 126 Atl. 884 (1924), we held valid an act of the General Assembly authorizing the Port Development Commission of Baltimore to condemn property for the comprehensive development of the city's port. It was urged that the condemnation of private property under the act violated the constitutional limitation of the power of eminent domain to the taking of property solely for a public use.  We said:

"In view of the objects to which the act is directed, and of the important public service which it was designed to promote, we are of the opinion that the objection to its validity should not prevail.  The development of the harbor of Baltimore according to a comprehensive plan, by which the commerce of the port will be most [***15]  advantageously served, and its future growth encouraged, is a project of distinctively public interest and purpose.  It is concerned with the improvement and extension of a harbor service which constitutes an essential part of a system of water transportation connecting the port of Baltimore with the markets of the world." 146 Md. at 521.
In Frostburg v. Jenkins, 215 Md. 9, 136 A. 2d 852 (1957), we held constitutional an enabling act of the General Assembly which authorized the City of Frostburg to issue municipal bonds to acquire a site and contribute to the cost of constructing a building to be used by a privately owned manufacturing company.  The Court (Prescott, J. dissenting) found that the legislation had a substantial relation to the public welfare and could fairly be said to have a public purpose. Judge Henderson, for the Court, said:
"The only declaration of public policy in the enabling act before us is the statement that the power is granted 'in order to encourage industrial development'.  The legislative purpose, however, is somewhat amplified in the allegations of the answer, which are 

 [*447]  admitted for the purpose of this case, and we might, indeed,  [***16]  take judicial notice of the fact that the location of new industry in a municipality furnishes employment and measurably increases the resources of the community and its financial well-being." 215 Md. at 16.
Here, the declaration of public policy in the enabling act is far stronger than it was in Frostburg.  The preamble to Chapter 602 sets forth legislative findings that the unification at a single, centrally located site of servicing functions and activities connected with water-borne commerce and trade has the single object of preserving the economic well-being of the State and is in the public interest. n1 Such  [**766]  legislative findings are entitled 

 [*448]  to substantial weight.  Geisendaffer v. Mayor and City Council of Baltimore, 176 Md. 150, 152-53, 3 A. 2d 860 (1939), cf. Washington Suburban Sanitary Comm'n. v. Buckley, 197 Md. 203, 209-10, 78 A. 2d 638 (1951).

n1 The preamble to Chapter 602 is as follows:
"WHEREAS, The General Assembly hereby finds and determines:
"(1) that the servicing functions and activities connected with the water-borne commerce and trade of the ports and harbors of the State of Maryland, including customs clearance, shipping negotiations, cargo routing, freight forwarding, financing, insurance agreements and other similar transactions which are presently performed in various scattered locations, should be centralized to provide more efficient and economical facilities for the exchange and buying, selling and transportation of commodities and other property in international and domestic water-borne trade and commerce and for making arrangements for and handling passenger service by water, and matters incidental thereto; and
"(2) that unification, at a single, centrally located site, of a facility of commerce accommodating the said functions and activities described in paragraph (1) above and the appropriate governmental, administrative and other services connected with or incidental to the transportation of persons and property by water and the promotion and protection of port commerce, and providing a central locale for exchanging and otherwise promoting the exchange and buying and selling of commodities and property in water-borne trade and commerce, will materially assist in preserving for the State of Maryland and the residents of all parts of the State the material and other benefits of prosperous port communities; and
"(3) that the undertaking of the aforesaid unified facility of commerce by Maryland Port Authority has the single object of preserving, and is part of a unified plan to aid in the preservation of, the economic well-being of the State of Maryland and its residents and is found and determined to be in the public interest."

 [***17]  
In Courtesy Sandwich Shop v. Port of N. Y. Authority, 12 N. Y. 2d 379, 190 N. E. 2d 402, appeal dismissed, 375 U.S. 78 (1963), the New York Court of Appeals had before it the validity of a law authorizing the Port of New York Authority to condemn land for a development to be known as the "World Trade Center" in lower Manhattan. n2 One of the grounds of attack was that the Center concept did not represent a public purpose. The court held it did, saying:

"The history of western civilization demonstrates the cause and effect relationship between a great port and a great city.  (See Pirenne, Economic and Social History of Medieval Europe, [Harcourt, Brace & Co., N. Y.].) Fostering harbor facilities has long been recognized by this court as the legitimate concern of government.  (Matter of Mayor of City of N. Y., 135 N. Y. 253.) *** No further demonstration is required that improvement of the Port of New York by facilitating the flow of commerce and centralizing all activity incident thereto is a public purpose supporting the condemnation of property for any activity functionally related to that purpose." 12 N. Y. 2d at 389.

n2 Laws of N. Y., 1962, ch. 209, §  2 defined "World Trade Center" as "a facility of commerce consisting of one or more buildings, structures, improvements and areas necessary, convenient or desirable in the opinion of the port authority for the centralized accommodation of functions, activities and services for or incidental to the transportation of persons" and commodities in world trade and commerce.

 [***18]  
The appellant argues that, in Marchant, the authority to condemn was in connection with the development of wharves, docks, 

 [*449]  piers and warehouses, and not, as here, offices, restaurant and banks.  He points out that the Port Development Act there involved related to port facilities, whereas, in the present case, it is the centralization of office operations which is involved.  The short answer to this contention is that the methods by which a public purpose is served change with the times; in the world of today, services are often more important than edifices.  As  [**767]  Judge Henderson said for the Court in Frostburg, what is a public purpose for which public funds may be expended is not a matter of exact definition, but almost entirely a question of general acceptance.  "[T]he line of demarcation is not immutable or incapable of adjustment to changing social and economic conditions that are properly of public and governmental concern." 215 Md. at 16.
As to Frostburg, the appellant argues that there the public purpose of encouraging industrial development could only be accomplished if the city constructed the plant, while here it is not possible to say [***19]  that the Center will necessarily cause more trade in Baltimore.  But the validity of the means chosen to carry out a public purpose does not depend upon proof that the means will be successful.  The favorable outcome of economic measures can no more be demonstrated in advance than can the postulates of social legislation.  It is for the legislature, not the courts, to make the determination.  "So long as the legislation has a substantial relation to the public welfare and can fairly be said to serve a public purpose, it is not the court's function to strike it down, merely because we fear it may lead to unwise or unfortunate results." Frostburg, supra, at 19.
The second prong of the appellant's contention as to the purpose of the Center not being a public one rests for its thrust upon the contention that the plan to lease portions of the building to tenants wholly unrelated to the maritime industry defeats any public purpose. Chapter 602 permits the leasing of portions of the Center not leased for maritime purposes other than for the production of incidental revenue for the Authority's expenses and financial obligations.  Mr. Halpin testified that the Authority planners are of [***20]  the view that the Center may consist of a building of 200,000 square feet divided into twenty stories of 10,000 square feet each.  It is reasonably certain that 

 [*450]  the building will include at least twelve or thirteen stories each of 10,000 square feet.  Of the total floor space available, the Authority will occupy up to 30,000 square feet which will represent an expansion of up to 18,000 square feet from its present 12,000 square feet.  This expansion will be made to accommodate present and future increases in personnel as well as to provide additional facilities such as meeting rooms.  Within the range of economically feasible size, the Authority "intends" to lease to tenants whose businesses are maritime oriented, including the Authority, and to maritime oriented governmental agencies such as the Customs Bureau.  Although the tenants are not known, it is certain that portions of the trade center will be leased to "service" businesses, which would be patronized by non-tenants of the Center.  Such "service" tenants could include a bank and a cafeteria, or even a laundry.  The Authority presently intends to provide for a restaurant on the top floor.  This restaurant would [***21]  be operated by private business and is planned to be of such a size and quality that it will become a focal point for dignitaries as a prime reception facility.  It will serve persons from all over the City of Baltimore, particularly from the downtown area.  It is probable that some portions of the Center will be leased to other non-maritime tenants. The Department of Transit and Traffic of the City of Baltimore may be a tenant, to the extent of about 25,000 square feet.
In Marchant, we said:
"The public character of the use to which the harbor structures are devoted is not affected by the fact that they may not all be made available for the indiscriminate use of the public.  By the allocation or lease of certain docks for the separate use of persons or corporations having a regular or continuous need of such conveniences, the city does not convert into a private use the public port service which is thus in part provided." 146 Md. at 521.

 [**768]  In Frostburg, we said:
"In the instant case there are obvious benefits passing to the private corporation, and enuring to the benefit of its stockholders *** But whether these 

 [*451]  private benefits outweigh [***22]  the public benefits accruing from the location of the plant within the municipality seems to us to be primarily a legislative rather than a judicial problem." 215 Md. at 17.
The New York statute before the court in Courtesy Sandwich Shop is virtually identical in its provision as to leasing of portions of the structure for incidental revenue with the portion of the Maryland act here considered.  As to this provision, the New York Court of Appeals said:

"Nor can it be said that the use of property to produce revenue to help finance the operation of those activities that tend to achieve the purpose of the project does not itself perform such a function, provided, of course, that there are in fact such other activities to be supported by incidental revenue production (Bush Term. Co. v. City of New York, 282 N. Y. 306, supra)." 12 N. Y. 2d at 389.
We agree with the reasoning of the New York court.  That parts of the Center are to be used for maritime purposes connected with the Port is clear.  We cannot assume that the portion of the structure to be used by the Authority itself will not, in the future, be materially larger.  Mr. Halpin testified that he had [***23]  studied the development of trade centers in other ports; it was his conclusion, which was uncontroverted, that the Center would substantially increase port business.  Such an increase, presumably, would attract other maritime oriented business to the Center.  The Act is not invalid because it does not freeze future use to present circumstance.  Nor does it violate the constitutional prohibition because it authorizes the use of space not needed for the purpose of the Center other than for the production of incidental revenue, when, as here, that authorization is a reasonable concomitant of a project based on a public purpose.
The appellant argues that Courtesy Sandwich Shop is not here in point because the high land costs in Manhattan may make some self-supporting public facilities impossible, without incidental revenue.  He contends that New York is faced with 

 [*452]  a unique situation and that, because land costs are lower in Baltimore, incidental revenues do not come within the meaning of public purpose in Maryland.  We have found that the development of the Center is a public purpose. Land values are relative.  What is the best economic use of public land for a public [***24]  purpose is a question for legislative, or, if authorized, administrative determination.  In Chapter 602, the Legislature evidenced its awareness of the multiple purposes the Center could properly serve, and expressly provided for space devoted only to the production of incidental revenue.  The Act, as amended, incorporates not only the legislative determination of the broad scope of the Center, but, at least by implication, looks to the eventual expansion of the immediate use to which the Center is to be put.  No separate edifice is authorized for the purpose of raising revenues to offset the expenses of the Center.  The authorized use of portions of the Center for the production of incidental revenue is not its primary purpose, but is expressly made auxiliary to the accomplishment of the main purpose, which is public.
II
Section 34 of Article III of the Maryland Constitution provides in part as follows:
"No debt shall be hereafter contracted by the General Assembly unless such debt shall be authorized by a law providing for the collection of an annual tax or taxes sufficient to pay the interest on such debt as it falls due,  [**769]  and also to discharge the principal thereof [***25]  within fifteen years from the time of contracting the same; *** The credit of the State shall not in any manner be given, or loaned to, or in aid of any individual association or corporation; nor shall the General Assembly have the power in any mode to involve the State in the construction of works of internal improvement, nor in granting any aid thereto which shall involve the faith or credit of the State; * * *"

The Act makes no provision for the levy and collection of taxes to pay the principal of and interest on bonds issued by the Authority, nor does it require the payment of bonds within fifteen 

 [*453]  years.  If the proposed bonds would constitute a debt in the constitutional sense, the debt cannot be contracted by the General Assembly or by the Authority as an instrumentality of the State.  The appellant contends that a debt would be created, first, because under the Authority's Resolution, monies in a specified amount from the Authority's general funds are to be used, with the proceeds of the bonds, to pay the cost of the Center; and, second, because, under the Act, the Center is to be conveyed to the trustee under the trust agreement as security for the payment [***26]  of the principal of and interest on the bonds, with authority to sell the Center upon default.
The history of the credit clause in our Constitution was set forth by Chief Judge Marbury, for the Court, in Johns Hopkins Univ. v. Williams, 199 Md. 382, 388-94, 86 A. 2d 892 (1952). He summarized his discussion in these words:
"The unquestionable historical reason for the proposal of the constitutional section, both in New York and in Maryland, was to curb the reckless and improvident investment of public funds in aid of railroads and canals, promoted by private corporations, organized primarily for profit to their stockholders, although they might eventually serve a public purpose. That was the evil that had impaired or threatened the credit of these and other states, and that was the evil primarily in the minds of the framers of our constitution of a hundred years ago.  Whatever they said in that instrument must be considered in the light of what they were trying to prevent in the future.  Now, a century later, we must decide whether, by what they then said, they foreclosed something which was not and could not have been envisioned by them, and which had no relation whatever [***27]  to the problems they were facing." 199 Md. at 398-99.

See also, Bonsal v. Yellott, 100 Md. 481, 498-99, 60 Atl. 593 (1905) and Hanna, Financial History of Maryland, 1789-1848, 70-104 (1907).
We have had occasion to consider the meaning and application of the clause in prior decisions.  Mayor and City Council 

 [*454]  of Baltimore v. Gill, 31 Md. 375 (1869) involved the validity of an ordinance of the Mayor and City Council of Baltimore.  Section 7 of Article XI of the Constitution of 1867 prohibited Baltimore from creating a debt, in language substantially similar to that of Section 34 of Article III, unless the debt was authorized by the General Assembly and by an ordinance of the City approved by a majority of the voters.  Gill and other taxpayers filed a bill of complaint.  The bill alleged that the ordinance provided for the raising of $ 1,000,000 by the City by the hypothecation of such number of shares of the Baltimore and Ohio Railroad Company owned by the City as might be necessary, the proceeds to be invested in the bonds of the Western Maryland Railroad Company, with a provision that those who advanced the money were to look only to the stock pledged [***28]  for security.  The Baltimore and Ohio stock, it was alleged, paid regular dividends of eight per cent. and was selling at about twenty per cent. above par; the proceeds of the loan were to be used for the completion  [**770]  of the Western Maryland road, and the bonds of that railroad had no market value.  The bill charged that the ordinance was not in good faith, and that its real purpose was to borrow funds to be expended in the construction and equipment of the Western Maryland Railroad.  The City demurred, the demurrer was overruled, and, on appeal, we affirmed.  We held that the plain intent of the transaction was to create a debt of the City within the meaning of the Constitution by the pledge of valuable assets.  The provisions of the ordinance that the parties loaning the money shall look only for its repayment to the stock pledged and that in no event was the City to be liable for the repayment were ineffectual to avoid the restrictions imposed by the Constitution; the pledge of the stock might result in imposing additional burdens upon the citizens which might directly or indirectly involve increased taxation.
Wyatt v. State Roads Comm'n., 175 Md. 258, 1 A. 2d 619 [***29]  (1938) involved the constitutionality of revenue bonds to be issued by the Commission.  As in the present case, both the statute and the form of bonds provided they shall not constitute a debt or obligation of the State.  We held that a debt was not created in violation of the constitutional provision by the issuance 

 [*455]  of revenue bonds by the Commission for financing the cost of the Susquehanna River bridge, when it was expressly provided that the bondholders were to look solely to the revenues of the bridge for the payment of principal and interest.  We held, further, that a debt was not created by the Commission's covenant in the trust agreement securing the bonds to maintain the bridge. Chief Judge Bond, for the Court, said:
"It has been argued that resort to the device [of revenue bonds] is a circumvention of the constitutional purpose, but the courts are not warranted in adding prohibitions to constitutional provisions, beyond those formulated and adopted by the framers.  Only the one specific restriction on the Legislature was adopted to guard against improvidence and bad financing, and restraint beyond that was left to the General Assembly itself.  The Assembly [***30]  was given the chief part of the task of deciding questions of financial policy, and if the courts should govern their decisions on constitutional questions by their views of what was and what was not wise beyond the limitations expressed, they would be usurping functions ***
"The Constitution does not prohibit all burdens, or require all contracts of the State, to be accompanied by laws for levies of taxes to meet them.  It deals with burdens of a kind.  And an undertaking to pay undetermined, undeterminable, amounts of the cost of maintenance, repair, and operation in the future from day to day, month to month, and year to year, as need arises, if it can be classed as containing an element of debt at all, is not one for which taxes to pay interest and principal, and to pay the principal completely in fifteen years, might be provided in a tax law." 175 Md. at 267-68.
In Castle Farms Dairy Stores, Inc. v. Lexington Mkt. Authority, 193 Md. 472, 67 A. 2d 490 (1949) we held constitutional the statute creating the Lexington Market Authority.  The statute provided for the issuance by that Authority of revenue bonds which were not to constitute a debt of the City or 

 [*456]   [***31]  a pledge of its faith and credit.  A substantial part of the old market had been destroyed by fire; before the fire, it had yielded the City no net income but was operated at a loss.  Under the statute, the Market Authority had power to acquire from the City the whole or any part of the existing market, but the City stated it intended to incorporate in the deeds conveying the lands a provision that they should not be subject to execution or attachment for the debt of the Market Authority, and that if a receiver or trustee were appointed, he could use the land conveyed, but would not have power to alienate the land or  [**771]  divert it from use as a market.  We held that the statute did not authorize creation of a debt by the City.  The appellants contended and the Authority disputed that, on the authority of Gill, a pledge of existing revenue-producing property is undistinguishable from creation of a debt.  Judge Markell, for the Court, said, as to this argument:

"We need not decide between these opposing contentions.  For present purposes we shall assume that plaintiffs' contention is correct.  On this assumption plaintiffs' contention is not in point, because (a) the [***32]  existing market has not been revenue-producing but has been operated at a loss, and (b) it is not to be turned over to the Authority without compensation, but is to be sold for a presumably fair price." 193 Md. at 483-84.
In Johns Hopkins Univ. v. Williams, supra, suit was brought against the members of the Board of Public Works of Maryland for a declaratory decree that a statute providing for a State loan of $ 1,500,000, the net proceeds of which were to be paid to the University for the construction of a new engineering building, was unconstitutional because it was in violation of the constitutional provision that the credit of the State shall not be given or loaned to any individual association or corporation.  We reversed the decree of the lower court which held the statute void.  Chief Judge Marbury, for the Court, said:

"If the State should have a balance of a million and a half in its treasury from annual receipts, there could be no constitutional objection to its giving this amount 

 [*457]  to the Johns Hopkins University for the purpose of constructing an engineering building.  If the State does not have this amount available, but borrows it and then gives [***33]  the cash to the University, which is what it is attempting to do, it is not giving or loaning its credit to, or in aid of, the University -- it is using its credit with banking institutions to borrow the money, and it is giving the University its cash." 199 Md. at 401.
The provisions of the Act and the Resolution here under attack are to be considered in the perspective of the historical and decisional background.  We shall first consider the application of some of the Authority's general funds to the construction of the Center, and then the pledging of the Center itself.
The Authority has spent $ 7,000 of its general funds and budgeted $ 100,000 more for the fiscal year which commenced July 1, 1965 for the development of the Center.  The Resolution does not state the total amount which the Authority may be required to deposit with the trustee.  Mr. Halpin testified that the amount might be as much as $ 1,000,000 under the present plan.  However, consent of the Authority to such a commitment would be necessary.  The Authority's annual report for the fiscal year ending June 30, 1964 shows an operating fund balance of over $ 5,600,000.
The amount actually spent and budgeted by [***34]  the Authority is an insignificant part of its general funds.  While additional funds may be committed by the Authority to be turned over to the trustee towards the planning and construction of the Center, the Court cannot assume that any such additional commitment will not bear a reasonable relationship to the Authority's available cash resources.  There is a strong presumption that public officers properly perform their duties.  Fidelity & Casualty Co. v. Riley, 168 Md. 430, 433, 178 Atl. 250 (1935); Union Trust Co. v. State, 116 Md. 368, 372, 81 Atl. 873 (1911).
As was pointed out in Johns Hopkins, supra, cash is not credit and the use of cash does not create a debt. Cash is property, but the present expenditure of cash from current revenues 

 [*458]  does not create a situation such as existed in Gill whereby valuable  [**772]  existing property of the State may be lost.  In Gill, the pledging of the City's valuable and income-producing stock was an obvious subterfuge whereby, in effect, although not in terms, the City's credit was involved.  A sale of the stock, on default, could have resulted in increased taxation.  In Wyatt, there was no provision [***35]  for the assignment or conveyance of any State property for the revenue bonds, but, in discussing Gill, we referred to the fact that, there, valuable stock owned by the City was to be pledged for securities of a railroad under construction.  In Castle Farms, the land on which the old market stood was to be conveyed to the Market Authority, but we pointed out, inter alia, that the existing market had not been revenue-producing and had been operated at a loss.
The majority view in other jurisdictions is in accord with Gill, that when existing valuable, income-producing property of the political subdivision is mortgaged as security for the payment of bonds used to finance the construction of a facility, a debt is created.  See Annots.  Pledge or appropriation of revenue from utility or other property in payment therefor, as indebtedness within constitutional or statutory limitation of indebtedness of municipality or other political subdivision, 146 A.L.R. 328, 344; 96 A.L.R. 1385, 1393; 72 A.L.R. 687, 697 and cases therein discussed.  Here, however, we have, not the pledge of existing property, but only the use of cash for the construction of the proposed facility [***36]  from the Authority's general funds.  As in Castle Farms, no burden of taxation on future generations by the future sale of existing property is involved.  "There is no prohibition in the Constitution against making appropriations to private institutions, provided the purpose is public, or semi-public, and thousands and thousands of dollars are appropriated out of the annual receipts every year." Johns Hopkins Univ. v. Williams, supra, 197 Md. at 401.
The present use of cash from current funds is essentially different from the pledge of valuable property the income from which, as in Gill, may have a direct bearing on the tax rate.  Here, the situation is analogous to the appropriation of current funds of the State in the construction of access highways to bridges of the State Roads Commission.  While it is true that 

 [*459]  the highways, when built, remain the property of the State, they are valueless without the bridge to which they lead, as was the old market in Castle Farms.  For example, without the construction of the Chesapeake Bay Bridge, the dual highway which was built with State money as access to the bridge would lead only to empty shore.
The pledge [***37]  of the Center, when built, as security for the Authority's bonds will not jeopardize any property of the State which now exists.  If there is default in the bonds and the Center is sold for the benefit of the bondholders, the State will lose nothing which it now has.  The future burden on the taxpayers will be no greater than if the Center had never been built.
In the thorough annotation in 146 A.L.R. 328 (1943) it is stated:
"Although there is some authority to the contrary, the majority view, that the acquisition of property by a municipality under an arrangement whereby the cost thereof is to be paid out of the revenue from the property itself does not give rise to a debt or liability of the municipality within the meaning of a constitutional or statutory limitation of indebtedness, although the property so acquired is encumbered by a mortgage or lien to secure the payment of the cost thereof, where the encumbrance does not attach to any other property of the municipality (see the annotation in 72 ALR 697), has been approved in a number of recent decisions." at 352-53.

2 Antieau, Municipal Corporation Law §  15.17 (1965) is to the same effect.  See also 15 McQuillin,  [***38]  Municipal Corporations §  41.34 (3rd ed. 1950).  In addition to the cases cited and analyzed in 146 A.L.R. and  [**773]  in the previous annotations on the subject, there are subsequent decisions in accord with the majority view.  In Opinion of Justices No. 108, 252 Ala. 583, 42 So. 2d 348 (1949), Phoenix City proposed to finance the building of an amusement park by revenue bonds and to give as security a mortgage upon the park which would be subject to sale in event of default; the Justices pointed out that no existing property of the city would be pledged and advised that, 

 [*460]  in their opinion, the pledge of the park, when built, did not create an obligation under the state constitution.  Loomis v. Keehn, 400 Ill. 337, 80 N. E. 2d 368 (1948) held that a statute authorizing the State Armory Board to issue its revenue bonds for the building of armories and to pledge the property acquired or received as security did not create a debt against the state and was constitutional; the court said, "the pledge of the property partakes of the nature of the purchase-money mortgage." (400 Ill. at 341). In State v. Rhodes, 156 Ohio St. 81, 100 N. E. 2d 225 (1951), the [***39]  City of Columbus had passed an ordinance for the issuance of mortgage revenue bonds for the acquisition and creation of off-street parking facilities, with a mortgage upon the properties and facilities, when acquired or built, as security; it was held the ordinance did not create an indebtedness within the constitutional limitation.
Some respected courts have held to the contrary, e.g., McNichols v. City & County of Denver, 123 Colo. 132, 230 P. 2d 591 (1950); Brash v. State Tuberculosis Bd., 124 Fla. 167, 167 So. 827 (1936); and Lesser v. Warren Borough, 237 Pa. 501, 85 Atl. 839 (1912). These decisions are based on the conclusion that a debt is created when any municipal or state property is made subject to foreclosure proceedings even though the property was not owned at the time the bonds were issued.  With deference, we believe this reasoning, if applied to the Maryland constitutional provision, takes too narrow a view of the purpose of the prohibition.
The distinction between the effect of pledging previously existing and valuable property of the political subdivision as security for the revenue bonds and the pledging only of property to be constructed or acquired [***40]  out of the bonds' proceeds is illustrated by several Wisconsin cases.  In State v. Giessel, 267 Wis. 331, 65 N. W. 2d 529 (1954) cited by the appellant, the State Building Commission was authorized to borrow money for the construction of a new state office building and to secure the loan by a mortgage on the existing state office building.  Even though it was provided that no state debt was to be created, the Court held the pledge of the existing property would create a debt in violation of the constitutional prohibition. However, in Meier v. City of Madison, 257 Wis. 174, 

 [*461]  42 N. W. 2d 914 (1950), it was held that hospital revenue bonds of a city to be secured by the pledge of the hospital which was to be built did not constitute an indebtedness of the city within the constitutional debt limitation.  While a 1932 constitutional amendment provided that an indebtedness of a municipality created for the purpose of acquiring a public utility and secured solely by the property and income of the utility should not be included in arriving at the debt limitation if no municipal liability is created, the court held no indebtedness was created apart from the provisions of [***41]  the constitutional amendment.
In Burnham v. City of Milwaukee, 98 Wis. 128, 73 N. W. 1018 (1897), decided long before the constitutional amendment, Milwaukee had contracted to purchase certain lands on an installment basis.  A taxpayer sought to enjoin the city from issuing bonds to finance the construction of a garbage reduction plant on the ground that the city had already exceeded its constitutional limit of indebtedness. The court held that the land purchase contracts did not create a debt within the meaning of the constitutional limitation since the city was not obligated to pay the balance of the price of the land purchased.  In arriving at this  [**774]  conclusion, the Wisconsin court considered our decision in Gill, saying:
"We are cited to cases holding, in effect, that a borrowing of money upon a pledge of existing public property, or a charge upon the public revenue, constitutes a debt, within the meaning of such an inhibition as the one here involved, although no promise of payment is in terms made.  Baltimore v. Gill, 31 Md. 375; Newell v. People ex rel. Phelps, 7 N. Y. 9-87. The reasoning on which these decisions rest is that it is a manifest [***42]  evasion of the law, and that the lender has power to demand and collect the entire amount loaned out of the corporate property; that, while there may be no promise to pay by the corporation, there is a power to enforce out of the corporate property by reason of the pledge or hypothecation thereof.  Thus it is construed to be a debt because the 

 [*462]  payment of the amount due may be enforced out of the city funds or property.  Such is not the case here." 98 Wis. at 133.
In a comprehensive analysis of the Wisconsin cases, there is the following comment on Burnham and decisions which follow it: "These cases *** are based on the rationale that the municipality can walk away from the obligation none the poorer.  From the point of view of assets and revenues available for expenditure it is in the same position after entering into these obligations as it was before." Kiernan, Wisconsin Municipal Indebtedness, 1964 Wis. L. Rev. 173, 208-09.
The import of our prior opinions on the purpose and interpretation of Section 34 of Article III of our Constitution, the analysis of the limited effect of the provisions of the Act and Resolution respecting the use of the Authority's [***43]  current funds in the construction of the Center and its pledge of the Center as security for the bonds, and the weight of authority in other jurisdictions in which similar questions have been considered, lead us to conclude that the constitutional prohibition has not been violated.
III
That the issuance of the revenue bonds by the Authority will not violate the constitutional provisions against giving or lending the credit of the State to or in aid of any individual, association or corporation, or involve the State in the construction of works of internal improvement, is clearly shown by Bonsal v. Yellott, supra; Wyatt v. State Roads Comm'n, supra; Castle Farms Dairy Stores, Inc. v. Lexington Mkt. Authority, supra, and Johns Hopkins Univ. v. Williams, supra.  The holdings of these cases in respect of the meaning of the "credit" provision is discussed in Part I of this opinion.  In each of them, the particular facility involved (a public road, a public bridge, a market and an educational institution) was held not to be a work of internal improvement, within the meaning of the constitutional prohibition. Melvin v. Board of County Comm'rs of Anne Arundel County, 199 Md.  [***44]  402, 86 A. 2d 902 (1952) so holds as to a general hospital.
In Bonsal, Judge Boyd for the Court, said that the several 

 [*463]  provisions of the Constitution "show conclusively that the 'works of internal improvement' intended were such as the State had been connected with or interested in as 'stockholder,' or 'creditor' -- such as had driven it to the very verge of bankruptcy and repudiation -- and not such as every State government must have, either in its own name or in the names of its 'political agencies, created for the better government of the affairs of the State,' * * *" 100 Md. at 505.
In Courtesy Sandwich Shop v. Port of N. Y. Authority, supra, it was held that the statute providing for the World Trade Center was enacted for a public purpose, even though portions of the Center were to be leased to private persons.  Rogers v. City of Mobile, 277 Ala. 261, 169 So. 282 (1964) held valid a statute providing for the construction and operation  [**775]  of a wharf facility in Mobile for the refining and processing of sugar.  The Alabama court determined, inter alia, that the proposed action of the city under which the State Docks Department would enter [***45]  into service and employment agreements with private corporations from which they would presumably derive benefits did not constitute an unconstitutional lending of credit to the corporation by the city or the department.
The Act and the Resolution under which the Authority's revenue bonds are to be issued in no way violate Section 34 of Article III of the Maryland Constitution.
Decree affirmed; costs to be paid by appellant.  

CONCURBY:
PRESCOTT 

CONCUR:

Prescott, C. J., filed the following concurring opinion.
I fully concur in the able opinion of Judge Oppenheimer.  Several times therein it refers to the Frostburg case.  My only reason for filing this short opinion is to state that I still have the convictions set forth in my dissent filed in that case, but feel, under the doctrine of stare decisis, bound by the opinion of the majority therein.  The same result would be reached herein, if Frostburg had never been decided.  

9 of 138 DOCUMENTS 

MOTHERSHEAD, et al v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY, et al.  

No. 411, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 365; 214 A.2d 326; 1965 Md. LEXIS 462 

November 18, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order affirmed, appellants to pay the costs.  

HEADNOTES:

Zoning -- Test Of Whether Zoning Authority's Refusal To Rezone Is Proper Is Not Whether Applicants Adduced Substantial Evidence On Behalf Of Their Request For Change, But Rather Whether Or Not All Evidence Made Issues Fairly Debatable -- In Instant Case Court Held There Was Sufficient Evidence To Support District Council's Refusal To Rezone.
Zoning -- Prince George's County -- Request For Rezoning From I-1 To I-2 Denied -- Property Used For Retail Fuel Sales at Time Of Comprehensive Zoning Now Sought To Be Used For Metal Fabrication -- Allegations Of Mistake And Change.  Appellants contended that their property presently zoned I-1 (light industrial) should be reclassified to I-2 (heavy industrial) so as to permit them to continue to conduct thereon a metal fabricating business.  In support of their request for rezoning appellants offered evidence as to error in original comprehensive zoning or change in conditions so as to warrant rezoning, admitting, however, that the testimony of appellee's expert witnesses did contain "possible creditable [***2]  evidence" in opposition to the request for rezoning. The Court found that the facts presented not merely "possible creditable evidence," but rather sufficient evidence to make the issue of mistake or change fairly debatable. Appellants further argued that the I-2 zoning should be granted on equitable grounds because in their opinion the fabrication of steel is not nearly as offensive as are most other I-2 uses.  On the point of mistake, appellants contended that the property at the time of the adoption of the comprehensive zoning map, in 1949, was actually burdened by an I-2 use and therefore should have been so classified then.  In upholding the denial of rezoning, the Court stated that first, there is a strong presumption of the correctness of the comprehensive rezoning; secondly, there was considerable doubt that the retail sale of fuel oil, engaged in by the appellants at the time the 1949 map was adopted, required an I-2 classification; and thirdly, even assuming that the fuel oil business required I-2 zoning there was no evidence that the existence of such business when the 1949 map was adopted would have brought about an I-2 classification for the portion of the property now [***3]  to be used for the fabrication of steel. Appellants contended that if the Park and Planning Commission had known of the existence of the fuel tanks it would have recommended an I-2 classification. This, however, was only speculation.  Although a witness testified that the Commission sought to avoid recognizing non-conforming uses, there was no evidence that one might not have been recognized if required.  The weight to be attached to testimony of a witness not charged with the responsibility of any final decision must be reviewed in the light of the prior holding of this Court that even the statement of a member of the legislative body which adopted the map, "that he thought an error had been made was not conclusive of that fact." Furthermore, the assumed need for I-2 zoning was based in part on the witness' belief that the fuel oil business involved was "wholesale storage of petroleum products", such use being prohibited in an I-1 zone, when in fact the Court found that the operation was a retail oil sales business.
Zoning -- Assertion That District Council Based Denial Of Rezoning On "Plebiscite" Of Opposing Neighboring Property Owners Was Unsupported.
Zoning -- Prince  [***4]   George's County -- Ordinance Provisions As To Industrial Zones Valid As Applied To Subject Property -- Change Sought From I-1 To I-2 Classification To Permit Continuance Of Metal Fabrication.  Appellants seeking reclassification of their property from I-1 (light industrial) to I-2 (heavy industrial) so as to permit them to continue thereon a metal fabricating business, questioned the validity of the zoning ordinance as applied to the subject property. They contended that "the uses permitted in the Industrial Zones are so restricted when applied to the facts of this rezoning as to amount to an unlawful taking." The Court, however, found this charge void of any substance in light of the lawful uses presently being made by the appellants of their property and the vast number of additional uses permitted and feasible under the existing zone. In answer to appellants' contention that their type of fabrication is not seriously objectionable and should not be prohibited in the I-1 classification, the Court stated that what uses are to be included in a classification under a zoning ordinance is a question for the legislative wisdom of the Board of County Commissioners and is not subject [***5]  to judicial review unless obviously unreasonable or arbitrary.  The facts here did not demonstrate any unreasonable or arbitrary exclusion of metal fabrication from an I-1 zone. 

SYLLABUS:

Andrew A. Mothershead, et al., applied for zoning reclassification of their property and from an order affirming the refusal of the Board of County Commissioners for Prince George's County, sitting as a District Council for the County, to grant the reclassification, plaintiffs appeal.  

COUNSEL:
Hervey G. Machen for appellants.
Harry L. Durity, with whom were Robert B. Mathias and Lionell M. Lockhart, on the brief, for Board of County Commissioners; Bill L. Yoho, with whom were Robert S. Hoyert and Roy W. Hooten, Hoyert & Yoho, on the brief, for Stanley H. Maier, Thomas G. Morgan and Arthur F. Lakin, other appellees.  

JUDGES:
Prescott, C. J., and Hammond, Horney, Marbury and Oppenheimer, JJ., and Foster and Jones, JJ., Associate Judges of the Eighth Judicial Circuit, specially assigned.  Foster, J., by special assignment, delivered the opinion of the Court.  

OPINIONBY:
FOSTER 

OPINION:

 [*368]   [**327]  The appellants, Andrew A. Mothershead and Andrew O. Mothershead, father and son, contending [***6]  that their property presently zoned I-1 (light industrial) should be reclassified to I-2 (heavy industrial) so as to permit them to continue to conduct thereon a metal fabricating business, appeal from an order of the Circuit Court for Prince George's County affirming the refusal of the Board of County Commissioners for Prince George's County, sitting as a District Council for the County, to grant the reclassification. They state that the questions presented on this appeal are whether or not the decision of the District Council was fairly debatable and whether or not the zoning ordinance otherwise valid was as applied to their property unreasonable, discriminatory, capricious and arbitrary.

 [*369]  The parcel of land for which the rezoning is sought contains 4.002 acres, being the major portion of a 5.035 acre tract owned by the appellants and located in the City of College Park, Prince George's County, Maryland, with a frontage of 68 feet on the south side of Berwyn Road, an easterly border of 539.83 feet lying contiguous to the main line of the Baltimore and Ohio Railroad, a southerly edge abutting property zoned for light industrial use and a westerly side adjacent to lots [***7]  (zoned R-55,  [**328]  one-family, detached, residential) improved by single family dwellings.  A bird's eye view of the vicinity in which the parcel is situated would reveal in every direction an expanse of residentially zoned property with a major railroad line cutting through the middle, north to south, and a principal highway, Greenbelt Road, (a four lane divided highway) running east to west, just south of center.  Nestled along the railroad are numerous plots zoned for commercial use and some zoned for light and heavy industrial, but none of those of the heavy industrial category is south of Greenbelt Road which forms a natural barrier, cutting them off from the subject property. The evolution of this pattern is one common to many rural communities where, before the advent of the automobile, the railroad was the only adequate mode of transportation.  Businesses tended to cluster by the railroad tracks and remained there while the residences of the commuters sprawled on either side.
Upon a portion of the subject property for a span of over forty years Andrew A. Mothershead has operated a retail coal and feed business to which he added during this period a building materials [***8]  department.  Early in 1940, the grade crossing at Berwyn Road and the railroad tracks was closed and a new road with an overpass bridging the track was located somewhat to the north.  With the elimination of the crossing and the shutting off of the flow of traffic past the store and other commercial enterprises in the neighborhood, the business activity in the area gradually declined.  Then, in 1944, Andrew O. Mothershead, the son, came to work with his father and further additions were made to the business, including the sale and delivery of fuel oil. The growth of this latter adjunct induced the installation of two 20,000 gallon oil storage tanks in August, 1948.  Moreover, to meet the demands of their customers and 

 [*370]  competition, they, in violation of the zoning ordinance, expanded their building supply division in 1957 to include the sale of steel beams which were cut to size pursuant to purchase orders, in some instances welded and delivered.  Late in the 1950's the steel fabricating operation was incorporated under the name of College Park Fabricators, Inc.  By the fall of 1960, the fabricating business had grown to such an extent that it became desirable to erect [***9]  a shop to house the operation.  An application for the building permit was approved, but subsequently rescinded when it was determined that the fabricating of steel fell within the zoning classification of Industrial 2.  There followed, in September 1961, a petition by appellants for a zoning map amendment as to the 4.002 acres from I-1 to I-2.
An investigation of this petition was undertaken by the Technical Staff of the Maryland National Capital Park and Planning Commission which recommended that the request for I-2 classification be denied.  The Planning Board of the Maryland National Capital Park and Planning Commission, thereafter, contrary to their Technical Staff's conclusion, suggested that the petition be approved.  A public hearing before the Board of County Commissioners of Prince George's County, sitting as a District Council, was then held in January 1962.  After receiving all the evidence, the District Council denied the petition.  The appellants sought review of the District Council's action in the Circuit Court for Prince George's County, Maryland, which affirmed, through Judge Loveless, the action of the District Council on the grounds that the conclusions from the [***10]  evidence were fairly debatable and the Court could not substitute its judgment for that of the legislative body. Stanley H. Maier, Thomas G. Morgan, and Arthur F. Larkin were parties to the proceedings by virtue of their Motion for Leave to Intervene made and granted on July 12, 1962.
The subject property, leased to the corporate manufacturer at the time the change in zoning was sought, was I-1 by virtue of the northern portion thereof having been so  [**329]  classified pursuant to the comprehensive zoning map of the county adopted in 1949 and the southern portion pursuant to petition No. A-1787 approved November 21, 1951.  However, it should be noted that a part of the northern sector, running through the 

 [*371]  center of the tract and originally zoned C-2, was placed in the Industrial E zone under petition No. 760, approved June 25, 1946, prior to being included in the I-1 zone established through the 1949 map. The land along Berwyn Road where the store and office are located and running for a distance of about 200 feet toward the rear of the property, or southerly, (not included in the petition for reclassification) is zoned C-2 (general commercial).
The somewhat diffuse [***11]  attack of the appellants under the initial question posed by them has as its first prong the contention that they did present substantial evidence to the District Council that reclassification was in the public interest and that such evidence is all that is required to sustain their position.  They cite Board v. Oak Hill Farms, 232 Md. 274, 192 A. 2d 761, and quote from the opinion by Judge Hammond to the effect that where the testimony of experts in behalf of the applicants for change, to which no answer was given by the objectors, left no doubt that the public interests (as well as that of the owners of the land) would be best served by the rezoning, the petition should be granted.  This placing by the appellants of reliance solely on the strength of their case and the citing of Oak Hill Farms, supra, as authority for justification in so doing cannot carry them successfully forward to a reversal here.  Oak Hill Farms, supra, the only authority quoted by appellants for this first proposition, carefully points out that there was "no" answer by the objectors to the expert testimony, which absence decisively distinguishes it from the case before us where many answers are [***12]  made.  The test is not whether the appellants adduced substantial evidence on behalf of their request for the change, but rather whether or not all the evidence made the issues fairly debatable, there being no denial that appellees did produce evidence in opposition to the rezoning.
Quite contrary to appellants' view of Oak Hill Farms, supra, the Court concluded at p. 283 that:

"*** the courts have exercised restraint so as not to substitute their judgments for that of the agency and not to choose between equally permissible inferences or make independent determinations of fact, because to do so would be exercising a non-judicial role.  

 [*372]  Rather, they have attempted to decide whether a reasoning mind could reasonably have reached the result the agency reached upon a fair consideration of the fact picture painted by the entire record.
In the cases dealing with consideration of the weight of the evidence, the matter seems to have come down to whether, all that was before the agency considered, its action was clearly erroneous or, to use the phrase which has become standard in Maryland zoning cases, not fairly debatable."
When commenting on Oak Hill Farms,  [***13]   supra, in MacDonald v. County Board, 238 Md. 549, 210 A. 2d 325, the Court said that it affirmed the order of the lower court, in Oak Hill Farms, supra, reversing the Council's action denying the petition because it found that there was no evidence to support the Council's order.  The proper question then is whether there was sufficient evidence to support the District Council's decision.  We think there was.
After their original thrust, the appellants turn to a broader front and take up the subjects of error in original comprehensive zoning or change in conditions so as to warrant rezoning. However, they very frankly admit that "[t]he record clearly  [**330]  shows by competent evidence of mistake and change the only possible creditable evidence submitted in opposition to the request for rezoning would be contained in the staff report and the testimony of Bernard M. Willemain, an expert called by the appellees." The Technical Staff reported that the comprehensive zoning was "based upon the existing industrial uses, the relationship of available vacant land to the railroad and to the location and extent of existing residential areas"; that "industrial areas were located [***14]  to minimize any adverse effect upon the existing residential development adjacent thereto"; that heavy industrial zoning was located north of Greenbelt Road; that on the west side of the railroad (appellants' side) heavy industrial development has been limited by public opposition and by the construction of single family dwellings; that the 1948 plan and the 1949 zoning map showed a consistent application and use of the I-1 and I-2 zones of lands adjacent to the railroad and both indicate that the application of the two classifications 

 [*373]  were reasonable and took into consideration the existing conditions prevailing; that in 1947 and 1948 any tract of land located between the railroad and an existing subdivision was recommended for inclusion in I-1 zoning since it was thought that this was more compatible with residential areas than I-2; that in 1948 homes were being constructed and occupied on lots immediately adjacent to the west of the subject property; that although appellants have expanded their businesses the residential area to the west and south has continued to develop; that no pronounced trend in the neighborhood indicated decay or transition which would justify [***15]  reclassification; that the original zoning (1949) was not in error; and that the rezoning, if granted, would be spot zoning.
Mr. Bernard T. Willemain, a city planner, appeared as a witness for the Mayor and City Council of College Park at the proceedings before the District Council.  He testified that there were no changes in circumstances which would warrant the reclassification requested.  In his opinion the appellants were engaged in retailing, not refining or wholesale storage of fuel oil, which only required I-1 zoning for fuel oil storage. The only significant change in the area, he said, was the reclassification from residential to light industrial of nearby property.  Of particular importance, he reported that the only heavy industry in the area was over half a mile away, set apart by an effective barrier, Greenbelt Road.
These facts do not leave us with the negative feeling that they are mere "possible creditable evidence," but rather they seem quite substantial, sufficient to make the issue of mistake or change fairly debatable.
Appellants, while conceding that there can be no conditional zoning, continue to urge that they should be granted I-2 zoning on equitable grounds [***16]  because in their opinion the fabrication of steel is not nearly as offensive as are most other uses permitted under an I-2 classification. They attack the court's decision on the ground that there was a mistake when their property was classified for the 1949 map and claim that changes in the area have taken place since that date.  On the point of mistake, they rely on the contention that the property at the time of the adoption of the 1949 map was actually burdened 

 [*374]  by an I-2 use and therefore should have been so classified then.  There are several answers to this.
First, there is a strong presumption of the correctness of the comprehensive rezoning; secondly, there is considerable doubt that the retail sale of fuel oil requires an I-2 classificacation; and thirdly, even assuming that the fuel oil business requires I-2 zoning there is no evidence that the existence of such business when the 1949 map was adopted would have brought about an I-2 classification for the entire 4.002 acres or even a part thereof.
In Reese v. Mandel, 224 Md. 121, 167 A. 2d 111, at p. 128, this Court said: "In testing the action of the Board of Appeals  [**331]  herein, we start off with [***17]  a strong presumption of the validity of the classifications made when the comprehensive map was adopted." Also, see MacDonald v. County Board, supra, and Miller v. Abrahams, 239 Md. 263, 211 A. 2d 309.
When the studies, under the supervision of Mr. Fred W. Tuemmler, who was Director of Planning for the Maryland National Capital Park and Planning Commission, from 1941 to 1952, were made in preparation of the zoning ordinance that was ultimately adopted in November, 1949, the center section of appellants' property was zoned Industrial E (the sole industrial classification then in existence) and the two 20,000 gallon oil storage tanks had not then been installed.  Between the time of the studies and the adoption of the 1949 map a permit was obtained for the installation of the tanks and their erection above ground was completed.  Appellants argue that if the Park and Planning Commission had known of the existence of the tanks they would have recommended placing the property in the I-2 classification. This is only speculation.  Although there was testimony that the Commission sought to avoid recognizing non-conforming uses, there is no evidence in the record that one might not [***18]  have been recognized here, if it were actually required.  And so, even though Tuemmler, as Director of Planning, might have opposed a non-conforming use and thought it reasonable to establish under the circumstances an I-2 classification if requested by the owners, the record offers no more than his present conjecture of what might then have been done.  Further, this assumed need for I-2 zoning is based in part on 

 [*375]  his belief that the fuel oil business involved was, as he stated "wholesale storage of petroleum products," to which additional reference will be made.  The weight to be attached to this testimony furnished by a witness not charged with the responsibility of any final decision must be reviewed in the light of the prior holding of this Court that even the statement of a member of the legislative body which adopted the map, "that he thought an error had been made was not conclusive of that fact." See Reese v. Mandel, supra, p. 128.
Appellants persist in maintaining that the fuel oil business conducted by them falls within an I-2 classification. The forerunner of this enterprise was a retail coal business and the evidence points to a replacement of the retail [***19]  coal sales with retail oil sales in accordance with modern trends and the present popularity of oil fired furnaces.  It scarcely can be seriously argued, we think, that this operation, serviced from only two oil storage tanks with a limited capacity of forty thousand gallons, was other than retail. Petroleum Refining or Wholesale Storage is prohibited in an I-1 zone by Section 22.11 of the Zoning Ordinance for the Maryland-Washington Regional District in Prince George's County, Maryland, but since Fuel Storage Plant or Yard (coal, coke, gasoline, oil, wood, etc.) is only specifically prohibited from the higher classification C-2 (general commercial) it would seem (although we make no such finding) that such a use is permitted in an I-1 zone, the ordinance being of the exclusionary character.  The tanks occupy a minute part of the tract under consideration so that even if the Board of County Commissioners had been aware of their existence in 1949 there is little reason to assume that the entire property would have been included in an I-2 zone. This is particularly true when considered in connection with the fact that the appellant sought and later received on November 21, 1951, subject [***20]  to certain restriction, under Petition No. 1787, Class I-1 zoning for the extreme southerly section of the property.  It must be assumed that the authorities then knew of the installation of the tanks.
The almost complete lack of reference to facts which would establish a sufficient change in the character of the neighborhood to require a reclassification or any argument on the issue 

 [*376]  leads us to the conclusion that this contention has been abandoned.  Certainly, the testimony produced by the  [**332]  appellees of increased residential construction in the area and that there had been no I-2 zoning granted would make the issue, at least, fairly debatable.
There are no facts in the record which support the appellants' assertion that the District Council based its decision on a "plebiscite" of the opposing neighboring property owners.  This contention rests on the bare conjecture of the appellants.
Similar charges of "plebiscite" were made, or the Court had occasion to comment upon the unlawful restricting of individual rights by a legislative body, allegedly based on the exercise of the police power, where the determination was made solely on the ground that property [***21]  owners objected, in Benner v. Tribbitt, 190 Md. 6, 57 A. 2d 346, Montgomery County Council v. Scrimgeour, 211 Md. 306, 127 A. 2d 528, Mettee v. County Commissioners of Howard County, 212 Md. 357, 129 A. 2d 136, and Sampson Brothers (Md.), Inc. v. Board of County Commissioners of Prince George's County, 240 Md. 116, 213 A. 2d 289. A most appropriate observation on the subject was made by Judge Henderson when he said in Mettee v. County Commissioners of Howard County, supra, at p. 364:
"Obviously, an exercise of the police power cannot be made to depend upon a count of noses, but, on the other hand, the very fact that a public hearing is required before the adoption or reconsideration of a master plan indicates that public sentiment on the proposal is not wholly irrelevant.  The zoning authorities are by no means bound to regard the wishes of property owners, but their decision is not to be condemned simply because it adopts the views advocated by a majority of the persons primarily affected."
A public hearing is required on zoning petitions in Prince George's County.  Zoning Ordinance, Prince George's County, Maryland, Section 29.3.
As pointed out [***22]  by the appellees, if they have legitimate grounds for attacking the zoning petition at the hearing they will be penalized, under the appellants' theory, for so doing and 

 [*377]  on the other hand if they sit idly by their arguments against reclassification will never be known; in either event they lose.  This is not the law.
The second question, the validity of the zoning ordinance as applied to the subject property under the evidence, according to the appellants, raises several issues.  Initially, they say and cite N. W. Merchants Term. v. O'Rourke, 191 Md. 171, 60 A. 2d 743, as authority for this proposition, that "[i]n order to impose restrictions some valid exercise of the police power must be proven, but such power is invoked for the protection of the property restricted and not to give protection to surrounding property," p. 187.  The facts in Terminal were diametrical to those here; there the neighbors endeavored to upgrade zoning from commercial to residential while in the instant case the appellants seek to expand from limited industrial use to almost unlimited uses.
Next, they submit that "the uses permitted in the Industrial Zones are so restricted when applied [***23]  to the facts of this rezoning as to amount to an unlawful taking." In the light of the lawful uses presently being made by the appellants of their property and the vast number of additional uses permitted and feasible under existing zoning, this charge is void of any substance.  Cf. Frankel v. City of Baltimore, 223 Md. 97, 162 A. 2d 447; Sapero v. M. & C. C., 235 Md. 1, 200 A. 2d 74, and Baltimore City v. Borinsky, 239 Md. 611, 212 A. 2d 508.
Following this they contend "that to prohibit the cutting and welding together of finished steel beams to form part of a finished beam is not a type of metal fabrication that should be prohibited, in light of all the types of industrial usages permitted in the I-1 classification." What uses are to be included in a classification under a zoning ordinance is a question for the legislative wisdom of the Board of County Commissioners  [**333]  and is not subject to judicial review unless obviously unreasonable or arbitrary.  See Wakefield v. Kraft, 202 Md. 136, 96 A. 2d 27. The facts here do not demonstrate any unreasonable or arbitrary exclusion of metal fabrication from an I-1 zone. Appellants' witness, Mr. Walcroft, and others,  [***24]  testified that the noise of a railroad train passing appellants' property "almost drowned out the noise" coming from the fabrication 

 [*378]  shop.  If the sound created by a passing railroad train does not mask the racket emitted from a metal shop there can hardly be any doubt that at least the Board of County Commissioners' decision to include metal fabrication in an I-2 zone was fairly debatable. The testimony of several of appellees' witnesses and tape recordings of the noise further establish the extent and volume of the noise and its objectionable character.  But, of even more important consideration, is what may be expected from operations generally carried on within a classification, not by just one particular fabricator, and it strikes us as reasonable that generally a metal fabrication plant should be excluded from an I-1 (light industrial) zone. Again, appellants unrealistically argue that their special "type" of fabrication is not seriously objectionable and that a whole new classification should be established for them.  This is not consistent with zoning law practices.
The facts of City of Amarillo v. Stapf, 109 S. W. 2d 258, (Texas), referred to by appellants [***25]  vary so greatly from those presented here that it totally fails of applicability.
Order affirmed, appellants to pay the costs. 

10 of 138 DOCUMENTS 

MADDOX et al. v. SHANKS (Three Appeals in One Record) 

No. 455, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 348; 214 A.2d 323; 1965 Md. LEXIS 459 

November 15, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order modified, and as modified, affirmed; appellants to pay the costs.  

HEADNOTES:

Unsatisfied Claim And Judgment Fund Law -- Claimant Held Entitled To Payment Of Judgment From Fund Under Circumstances Here -- Requirement Of Statute Not Satisfied In Every Case By Showing That Insurer Has Disclaimed Liability -- Subsequent Proceeding Against Alleged Insurer.  A claimant for payment from the Unsatisfied Claim and Judgment Fund of a judgment obtained must show, under Code (1957), Art. 66 1/2, sec. 159 (e), that the judgment debtor was not insured at the time of the accident.  In the present case an insurance company had denied liability, and the lower court had found that the judgment debtor was not covered by an automobile liability policy which would be liable for the payment of the judgment against him.  This Court held that the claimant was entitled to payment of her judgment (with interest and costs from the date of the order below) upon its assignment to the Commissioner of Motor Vehicles.  However, the Court further stated that the requirement of sec. 159 (e) is not satisfied in every case by showing [***2]  that an insurer, if there is one, has disclaimed liability.  Such a showing does no more than satisfy the requirements of the statute where the Fund is unable to disprove, by evidence to the contrary, the presumption of a legal right to disclaim. And the lower court's ruling upon the question of insurance coverage does not preclude the bringing of subsequent litigation to determine the liability of an alleged insurer, where there has been no agreement among the interested parties, including the insurer, to litigate this question at the summary hearing. Having paid the judgment and taken an assignment thereof, the Commissioner of Motor Vehicles may, as subrogee, seek reimbursement from the insurance company in a subsequent adversary proceeding. 

SYLLABUS:

Petition by Vera Shanks for payment of a judgment obtained against William H. Maddox from the Unsatisfied Claim and Judgment Fund.  From an order directing payment of the judgment, the judgment debtor, as nominal appellant, and the Fund, appeal, and the petitioner cross-appeals.  

COUNSEL:
William R. Hymes and William E. Brannan for the appellants.
Norman F. Summers, with whom was Julian S. Brewer, Jr., on the brief, for the [***3]  appellee and cross-appellant.  

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

OPINIONBY:
HORNEY 

OPINION:

 [*350]   [**324]  This is an appeal by the Unsatisfied Claim and Judgment Fund (the Fund) from a lower court order directing payment from the Fund of a judgment obtained by Vera Shanks (judgment creditor), the injured party, against William H. Maddox (judgment debtor and nominal appellant), an alleged insured.
 [**325]  The appeal turns on the question as to whether the lower court erred in ordering payment of the judgment from the Fund even though there was a possibility that the judgment debtor was an insured under an automobile liability policy issued to Elsie Mae Farrow (named insured) by the Maryland Indemnity Insurance Company (insurance company or insurer).
At the time of the accident, the judgment debtor was operating a truck owned by the named insured, which, with her permission, he was using to tow a merry-go-round mounted on a trailer she had previously sold, but had not delivered, to a third party.  While the merry-go-round was being towed from one location to another, the trailer broke loose [***4]  from the truck and struck the automobile in which the judgment creditor was riding and seriously injured her.
When the insurance company was notified of the accident, it denied coverage and the injured party filed notice of an intention to make a claim against the Fund and subsequently filed suit against both the owner and the operator of the truck. At the trial of the case, the jury found in favor of the injured party against the operator but not the owner of the truck and judgment was entered in accordance with the verdict.  And when the judgment creditor was unable to obtain satisfaction of her judgment from the judgment debtor, she applied to the lower court for an order directing payment from the Fund.  The application was opposed and at the hearing thereon it was stipulated that the sole issue was whether or not there was a possibility that the judgment debtor was "an insured" under the policy issued to the named insured.
At the hearing on the application, a representative of the insurance company, testifying on behalf of the judgment creditor, stated that the truck was insured but that the trailer was 

 [*351]  not covered, that the use of the trailer was not within the [***5]  terms of the policy, that the parties had been so advised, and that the Fund had not indicated that it disagreed with the position taken by the company following the notice of disclaimer. On the contrary, a representative of the Fund, claiming that it had not seen a copy of the insurance policy until after the filing of the application for payment of judgment, disputed the insurance company's interpretation of the coverage afforded by the policy, and further testified, among other things, that the trailer exclusion clause was not applicable to the facts of this case because the operator of the truck was an insured by virtue of using the truck with the permission of the owner.  The lower court concluded that the judgment debtor was not covered by an automobile liability insurance policy which would be liable for the payment of the judgment against him.
Since, as a prerequisite to the passage of an order requiring the Fund to pay a judgment, Code (1957), Art. 66 1/2, §  159(e) requires an application for payment to show that "the judgment debtor at the time of the accident was not insured under a policy of automobile insurance under the terms of which the insurer is liable to pay the [***6]  amount of the judgment," the Fund, claiming that the judgment debtor was such an insured person as is defined in the statute and that there is a possibility of insurance coverage being available to him, contends that the judgment creditor has not satisfied the requirement of §  159(e).  While we agree, as the judgment creditor apparently concedes, that the Fund had a right to raise a question as to the possibility that the judgment debtor was an insured under the policy in question, that is a matter which is not reached under the circumstances of this case.  Rather, we think the judgment creditor is entitled to payment of her judgment without further delay upon the assignment of it to the Commissioner of Motor Vehicles, for, as we see it, this case is indistinguishable on the facts from the decision of this Court in Honeywell v. Roberson, 239 Md. 430, 212 A. 2d 245 (1965). In any event, the Fund, as assignee  [**326]  of the judgment, will have all the rights of the judgment creditor under the judgment and be entitled to enforce the same.  See Code (1957), Art. 66 1/2, §  166.

 [*352]  In the Honeywell case, where the judgment creditor had been awarded damages which she [***7]  could not collect from the judgment debtor and as a result had applied for an order directing payment from the Fund, and where the judgment debtor had filed suit (which had not been tried) to compel an insurance company to provide him with coverage under a liability policy that had been issued to him but as to which the company had disclaimed any liability and the validity of the disclaimer was not contested by the Fund, it was held that the requirements of §  159(e) had been met.  We think therefore that the holding in that case, to the effect that a disclaimer of liability by an insurer constitutes a prima facie showing by the applicant that the judgment debtor was uninsured, compels a holding in this case that the judgment creditor was entitled to payment of her judgment from the Fund.  But this does not mean that the requirement of §  159(e), supra, is satisfied in every case by a showing that an insurer, if there be one, had made a disclaimer of liability. A showing of disclaimer does no more than satisfy the requirements of the statute where the Fund is unable to disprove, by evidence to the contrary, the presumption that the insurer had a legal right to disclaim. Nor [***8]  does it mean that the ruling of the lower court on the question of insurance coverage at the hearing on the application for payment of judgment will preclude the bringing of subsequent litigation to determine the liability of an alleged insurer, where there has been no agreement among the interested parties, including the insurer, to litigate this question at the summary hearing. There is no reason why the Commissioner of Motor Vehicles, having paid the judgment and taken an assignment thereof from the judgment creditor pursuant to §  166, supra, may not, as a subrogee, seek reimbursement from the insurance company in a subsequent adversary proceeding.
The holding of the lower court was proper, but the order directing payment of $ 7400 with interest and costs should be modified to include interest and costs from October 21, 1964, the date of the order.
Order modified, and as modified, affirmed; appellants to pay the costs. 

11 of 138 DOCUMENTS 

CLAYTON, et ux. v. JENSEN, et ux.  

No. 470, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 337; 214 A.2d 154; 1965 Md. LEXIS 457 

November 12, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Baltimore County; Turnbull, J.  

DISPOSITION:
Judgment reversed and a new trial awarded, the costs to be paid by the appellees.  

HEADNOTES:

Easements -- By Prescription -- Action For Damages For Obstruction Of -- Elements Of An Easement By Prescription Were Established By Evidence.  In an action for damages allegedly resulting from the obstruction by the defendants of an easement of way (used as a driveway) obtained by prescription across the land of the defendants to the garage of the plaintiffs, the lower court found that there was no evidence of hostile possession prior to the erection of the obstruction and that use of the driveway was not exclusive, hence it dismissed the plaintiffs' action.  This Court found the lower court's findings to be clearly erroneous.  The evidence indicated that the use was an adverse use -- a use without either license or permission. "Hostility" for purposes of determining whether possession is adverse does not require a heated controversy or unpleasant manifestation of force.  The use is "hostile" when there is possession and use under a claim of right, such as the owner himself would exercise without permission. The [***2]  evidence here indicated an actual use by the prior owners of the dominant tenement and this was sufficient to make the use visible and notorious.  The garage could only be entered by use of the driveway. Substantially the same garage and the same driveway had been in the same location for over 40 years.  The driveway had been maintained exclusively by the prior owners of the dominant tenement. As to the lower court's view that the use was not exclusive, the evidence that neighbors occasionally using the driveway took care not to block it so as not to deprive the prior dominant tenement owners of its use, confirmed the exclusive use by the prior owners.  The evidence also indicated that by tacking possession of the successive predecessors in title, the adverse use continued without interruption for approximately 40 years.
Easements -- By Prescription -- Tacking Possession Under Color Of Title Of Predecessors In Title -- Use Is Continuous As Long As Cessation Of Use For Period Does Not Indicate Voluntary Abandonment.  Possession under color of title of the successive predecessors in title may be tacked to complete the 20 year statutory period. Daily use of the right of way is [***3]  not required, but only that use normally resulting from the nature of the use itself.  It is only required that a cessation of use not indicate a voluntary abandonment of the use by the person claiming it.  Hence, in the instant case, the one year period prior to the purchase of the dominant tenement in 1943 by plaintiffs' predecessor, when the prior owner did not use the easement of way in question (a driveway) to park an automobile, not having owned one at the time, did not result in a lack of continuity of the use.
Easements -- By Prescription -- Adverse Possession For Statutory Period -- Possession Taken Prior To Deed, Under Contract Of Sale, May Be Tacked To Possession After Delivery Of Deed To Establish Necessary Period Of Adverse Possession To Perfect Title In Contract Vendee.  

SYLLABUS:

Action by John D. Clayton, Jr., et ux., against Lyder H. Jensen, et ux., and Elwood Roy Campbell, et ux., for damages allegedly resulting from obstruction by defendants of an easement of way obtained by prescription across the land of the defendants.  From a judgment in favor of the defendants for costs, the plaintiffs appeal.  

COUNSEL:
Samuel J. Friedman for appellants.
R. Taylor  [***4]   McLean, with whom were Royston, Mueller, Thomas & McLean on the brief, for appellees.  

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

OPINIONBY:
BARNES 

OPINION:

 [*339]   [**156]  This appeal involves an action at law in the Circuit Court for Baltimore County brought by John D. Clayton, Jr. and Dorothy M. Clayton, his wife (the Claytons) against Lyder H. Jensen and Mary Dale Jensen, his wife (the Jensens) and Ellwood Roy Campbell and Catherine Margaret Campbell, his wife (the Campbells) for damages allegedly resulting from the obstruction by the Jensens and Campbells of an easement of way obtained by prescription across the land of the Jensens and Campbells to the garage of the Claytons.  Judge Turnbull, sitting without a jury, granted a motion of the defendants (the Jensens and the Campbells) for a dismissal of the action at the end of the plaintiffs' (the Claytons') case pursuant to Maryland Rule 535 and entered judgment in favor of the defendants for costs.  This appeal followed from that judgment.
The evidence, which is uncontradicted, established the following: The Claytons acquired the property 6209 Elmbank [***5]  Road in Baltimore County (the Clayton property or the dominant tenement) on August 30, 1963 from Mr. and Mrs. Charles Schwarz, the father and mother of Mrs. Clayton.  This property appears to front on Elmbank Road approximately 190 feet and the dwelling fronts on that road.  The property is triangular in shape.  The northeasterly side of the triangle is a broken line with distances of 51 feet and 235 feet respectively.  The southeasterly side of the triangle, which adjoins the Campbell property is 231 feet. There is a steep grade running from Elmbank Road to the southeast.  A garage was built some distance to the rear of the dwelling sometime prior to November 5, 1925 when a Miss Corrie Smith owned and lived in the Clayton property.  Because of the steep grade it is impossible to get to the garage from Elmbank Road.  Miss Smith used the garage for parking her automobile and had ingress and egress to it by a driveway which led only from the garage in a southeasterly direction on the Clayton property, then across the entire rear of the Campbell property and over a portion of the Jensen property (which adjoins the Campbell property at the southeast) to reach Smith 

 [*340]  Avenue.  [***6]  There is a "cut-out" in the curb of Smith Avenue on the Jensen property to permit ingress and egress.  When first used by Miss Smith the Campbell and Jensen properties were unimproved by dwellings but there was a barn on the Jensen property, also used as a garage, access to which was given by the driveway to the garage on the Clayton property.  This barn was in bad condition and was demolished some years ago.  The driveway leads only to the garage on the Clayton property and has a width of a "car and a half".  It is defined by wheel ruts and in part is improved by gravel.
Mr. and Mrs. Schwarz purchased the Clayton property from Miss Smith.  They entered into a contract of sale on June 19, 1943 and immediately took possession of the property.  At that time the driveway was clearly visible, there being wheel ruts in the driveway. Mr. Schwarz, who was employed in Baltimore City, went to the Clayton property daily after working hours and on week-ends to work around the house and grounds.  He used the driveway continuously from June 19, 1943 until the Campbells and Jensens erected a barrier across the driveway sometime between July 3 and July 13, 1963.  The use by Mr. Schwarz was an [***7]  active one.  His hobby was building sailing boats. He used the garage for building and storing the sail boats he built and he used the driveway to bring in the building materials for building the boats as well as for taking the boats and his automobile in and out of the garage. After June 19, 1943, the only person who maintained the driveway was Mr. Schwarz.  No one objected to his use of the driveway and no permission or license was requested by anyone nor was any permission or license given for the use of the driveway. The  [**157]  children of Mr. and Mrs. Schwarz (one is Mrs. Clayton, one of the appellants and one of the plaintiffs below) used the driveway as a path to reach Smith Avenue on their way to school.  After she moved into the dwelling, Mrs. Schwarz used it everyday to walk to the store and used the driveway to drive her automobile to the back of the lot where she frequently parked.
Two neighbors, who lived near the Clayton property for over 40 years, testified that the driveway had been in continuous use for approximately 40 years and a third witness testified that he knew of the existence and use for approximately 30 years.  In 

 [*341]  snowy weather when these [***8]  witnesses could not drive their automobiles up and down the steep grade of the only street leading to Elmbank Road, they would park their automobiles on the then vacant Campbell and Jensen lots.  The driveway was clearly visible and these witnesses testified that they exercised care to avoid using or blocking the driveway as this would prevent the use of the driveway by Miss Smith and later by Mr. Schwarz.
The original floor of the garage is still in its original location as are some of the original walls.
When Baltimore County widened and raised the grade of Smith Avenue, the County officials observed the driveway, replaced the cut-out in the curb and placed gravel on the driveway to bring it up to the new grade of Smith Avenue.  This gravel extended over the portion of the driveway which crosses the Jensen and Campbell properties and there is an insignificant amount of gravel on the portion of the driveway which is on the Clayton property.
The Campbells built their dwelling on the Campbell property in 1958.  This dwelling faces Elmbank Road and the Campbell property is known as 6207 Elmbank Road.  The Jensens erected their dwelling on the Jensen property in 1962.  This dwelling [***9]  faces Smith Avenue and the Jensen property is known as 6204 Smith Avenue.  When the Jensen house was erected, the lumber, equipment and cement blocks were placed along side the driveway, but never blocked it.
Sometime in June 1963, Mr. Jensen sought to purchase from Mr. Schwarz the rear of the Clayton property but Mr. Schwarz indicated that he was not interested in selling the garage separately from the house.
On August 30, 1963, Mr. and Mrs. Schwarz conveyed the Clayton property to the Claytons by a deed in usual form which in the "Being" clause indicated that the property was acquired from Corrie E. Smith and which also contained the usual provision that the property was conveyed "Together with *** the rights, ways, waters, privileges, appurtenances and advantages to the same belonging or anywise appertaining."
As already indicated, the barrier was erected by the Campbells and Jensens in July 1963.  The action for damages was filed by the Claytons against them on November 15, 1963.

 [*342]  The trial judge in granting the motion of the defendants to dismiss the action at the conclusion of the plaintiffs' case rendered an oral opinion in which he indicated that he found that [***10]  there was no evidence of hostile possession prior to the erection of the barrier and that the use of the driveway was not exclusive, and hence a right of way by prescription was not established by the plaintiffs.  In our opinion, these findings were clearly erroneous and the judgment for the defendants for costs must be reversed and a new trial awarded.
The Maryland law is well established in regard to the elements of an easement by prescription. Judge Markell, for the Court, in Potomac Edison Co. v. Routzahn, 192 Md. 449, 461, 65 A. 2d 580, 585 (1949) quoted with approval from this Court's opinion in Condry v. Laurie, 184 Md. 317, 321, 41 A. 2d 66, 68 (1945) as follows:
"In order to establish an easement by prescription, it is necessary to prove an  [**158]  adverse, exclusive and uninterrupted use of the way for twenty years.  Adverse use means use without license or permission. Where a person has used a right of way for twenty years unexplained, it is fair to presume that the use has been under a claim of right, unless it appears to have been by permission. Cox v. Forrest, 60 Md. 74, 79; Smith v. Shiebeck, 180 Md. 412, 24 A. 2d 795."

See Dalton  [***11]   v. Real Estate & Improvement Co., 201 Md. 34, 92 A. 2d 585 (1952) citing with approval and following Potomac Edison Co. v. Routzahn, supra. See also a most interesting and informative discussion of the development of easements by prescription in Judge Delaplaine's opinion for the Court in Wilson v. Waters, 192 Md. 221, 225-226, 64 A. 2d 135, 137 (1949) and the application of the Statute of 21 James 1, Ch. 16, 2 Alexander's British Statutes (Coe's Ed.) 599, enacted by Parliament in 1623 and made applicable in Maryland by virtue of Article 5 of the Declaration of Rights of the Maryland Constitution. n1

n1 There is a helpful analysis of the Wilson case in 10 Md. Law Rev. 272 entitled "Elements of an Adverse User Sufficient to Start the Statute of Limitations Running-Prescriptive Easement" in which the author traces the application of the Statute of 21 James 1, Ch. 16 to incorporeal rights and the development of the original fiction of an implied grant to be irrebuttable and conclusive, thus becoming a positive rule of substantive law, in some courts, while other courts (including Maryland) allow the presumption to be rebutted by a showing of express permission and perhaps by other excusatory facts generally available in interrupting the application of the Statute of Limitations.

 [***12]  

 [*343]  We have no doubt that the use of the driveway by both Miss Smith and Mr. and Mrs. Schwarz was an adverse use. As has already been stated, adverse use means use without either license or permission. Not only is there no evidence whatsoever that any license or permission was given to either Miss Smith or to Mr. and Mrs. Schwarz to use the driveway, but Mr. Schwarz testified that none had been given.  The presumption which arises from the unexplained use of the right of way for twenty years that the use was under a claim of right, has in no way been rebutted by any evidence.  See Cox v. Forrest, 60 Md. 74 (1883) at pages 79-80.
The trial court was under the impression that the possession was not "hostile" and hence was not "adverse." "Hostility" for the purposes of determining whether possession is adverse, however, does not require a heated controversy or unpleasant manifestation of force.  The use is "hostile" when there is possession and use under the claim of right. It is such a use as the owner himself would exercise without permission. See 17A Am. Jur. Easements, §  76, pages 689-691 (1957); 3 American Law of Property, §  15.4, page 776 (1952); cf.  [***13]  Hungerford v. Hungerford, 234 Md. 338, 340, 199 A. 2d 209, 211 (1964). The evidence indicates an actual use by the prior owners of the dominant tenement (the Clayton property) and this is sufficient to make the use visible and notorious.  Bishop v. Stackus, 206 Md. 493, 112 A. 2d 472 (1955). The prior owners erected the garage so that it faced Smith Avenue and from that public road the driveway led directly to the garage. The driveway led only to the garage and to nowhere else.  The garage could only be entered by the use of the driveway and by no other means of ingress and egress.  Substantially the same garage and the same driveway have been in the same location for over 40 years.  The driveway has been maintained exclusively by the prior owners 

 [*344]  of the Clayton property.  The facts indicate an adverse use and, in similar cases we have so held.  Lichtenberg v. Sachs, 200 Md. 145, 88 A. 2d 450 (1952); Bishop v. Stackus, supra.
The trial judge indicated that in his opinion the use was not exclusive because the driveway was used at times by others than the predecessors in title of the Claytons.  We do not agree.  In Wilson v.  [**159]  Waters,  [***14]   supra, Judge Delaplaine, for the Court, stated:
"We adopt the rule that if a road led at its start only to the premises of the persons using it, such circumstance is sufficient to prove their user under a claim of exclusive right, in the absence of proof to the contrary.  If a road, which was started in such manner as to make the user adverse and exclusive, is afterwards enjoyed in common with the public, the user does not lose its exclusive character as the result of the joinder of the public therein." (p. 229 of 192 Md.; p. 138 of 64 A. 2d).

See also Cox v. Forrest, supra, 17A Am. Jur. Easements, §  82, pages 698-699 (1957).
In the case at bar, the evidence is clear that when some of the neighbors used the driveway to park their automobiles on the Jensen or Campbell properties during snowy weather, they were careful not to block the driveway so that the predecessors in title of the Claytons would not be deprived of their use of the driveway. This evidence confirms the exclusive use by the prior owners of the dominant tenement rather than the contrary.
The evidence also indicates that the adverse user of the driveway continued without interruption for approximately [***15]  40 years if the use of Miss Smith is tacked to that of Mr. and Mrs. Schwarz.  It is clear that the possessions under color of title of the successive predecessors in title may be tacked to complete the 20 year statutory period. Wilson v. Waters, supra; Cox v. Forrest, supra. Daily use of the right of way is not required, but only that use normally resulting from the nature of the use itself.  It is only required that a cessation of use not indicate a voluntary abandonment of the use by the person claiming 

 [*345]  it.  Cox v. Forrest, supra. Indeed we have held that the absence of the person seeking to establish the easement from the dominant tenement for "a few years" during which time the right of way was not used by that person, who, however, resumed the use upon her return, did not prevent the use from being continuous or indicate an abandonment of the use.  Stuart v. Johnson, 181 Md. 145, 28 A. 2d 837 (1942). Hence, the one year period prior to the purchase of the dominant tenement by Mr. and Mrs. Schwarz when it appeared that Miss Smith did not own an automobile or use the driveway to park an automobile would not result in a lack of continuity in the use in view [***16]  of our decision in Stuart.  Even apart from the question of tacking Miss Smith's possession to that of Mr. and Mrs. Schwarz it is clear that the use by Mr. Schwarz immediately after the execution of the contract of sale for the dominant tenement on June 19, 1943 and thereafter until the erection of the barrier in July 1963 was sufficient in itself to establish the adverse and continuous use necessary to create an easement of way by prescription. When the contract of sale was signed, equitable title to the dominant tenement passed to Mr. and Mrs. Schwarz.  They took immediate possession.  Mr. Schwarz testified that he was at the Clayton property "practically every night, Saturday and Sunday, except when I visited Baltimore or when my Mrs. came up from Baltimore." He used his automobile to get to the property, drove it over the driveway and parked it on the driveway. The deed from Miss Smith to Mr. and Mrs. Schwarz was dated August 2, 1943 and was recorded among the Land Records of Baltimore County on August 10, 1943.  It is clear that the possession taken prior to the deed under the contract of sale may be tacked to the possession after the delivery of the deed to establish the [***17]  necessary period of adverse possession to perfect title in the contract vendee.  See 2 C.J.S. Adverse Possession, §  130(b), page 688 (1936) where it is stated:
"Nevertheless, a vendee who had possession under an executory contract and subsequently acquired a deed may tack his possession before to his possession after the receipt of his deed to perfect title in himself."

 [*346]   [**160]  See also Conaway v. Daly, 106 N. J. Law 207, 148 Atl. 719 (1930). Cf. Wilson v. Waters, supra where the record (but not the opinion) indicates that two of the plaintiffs, Joseph Burley, Jr. and his wife Hattie, held their property for 6 years under a contract of sale prior to obtaining a deed but this fact was not raised to prevent recovery of damages resulting from the blocking of the easement obtained by prescription.
The easement by prescription having been established by the testimony to have existed for the 20 year period prior to the delivery of the deed of August 30, 1963 on the dominant tenement from Mr. and Mrs. Schwarz to the Claytons, this appurtenant right passed to the Claytons and they were entitled to bring the action for damages against the Jensens and [***18]  Campbells.  Barry v. Edlavitch, 84 Md. 95, 115-116, 35 Atl. 170, 173 (1896).
Judgment reversed and a new trial awarded, the costs to be paid by the appellees. 

12 of 138 DOCUMENTS 

WADE v. WARDEN OF THE MARYLAND PENITENTIARY 

App. No. 68, September Term, 1965 

Court of Appeals of Maryland 

240 Md. 346; 214 A.2d 161; 1965 Md. LEXIS 458 

November 12, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Application for leave to appeal from the Criminal Court of Baltimore City; Prendergast, J.  

DISPOSITION:
Application denied.  

HEADNOTES:

Post Conviction Procedure Act -- An Illegal Arrest Does Not Of Itself Afford Ground For Relief Under -- Applicant Here Was Legally Arrested So That Claim Of Illegally Obtained Evidence Was Held To Be Without Significance -- Applicant Failed To Show What Evidence, If Any, Was Obtained At The Time Of His Arrest.
Post Conviction Procedure Act -- Request For Free Transcript Of Original Trial Is Denied Where There Is No Showing That It Would Serve A Useful Purpose -- Applicant Here Failed To State An Adequate Reason.  

SYLLABUS:

L. V. Wade instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*347]   [**161]  In this application for leave to appeal from the denial of post conviction relief, the petitioner makes eight contentions, several of which are substantially the same.  Judge Prendergast considered six of them, in addition to one not [***2]  in the written petition but presumably raised at the hearing, but did not deal explicitly with the allegations of illegal arrest and illegal search and seizure.
In the lower court the petitioner did not produce any facts to substantiate either of these latter contentions.
If it be assumed that petitioner's allegation of illegal arrest is true, the fact that his arrest was illegal would of itself afford him no ground for post conviction relief.  Ogle v. Warden, 236 Md. 425; Jackson v. Warden, 235 Md. 689; Duff v. Warden, 234 Md. 646. However, the findings of fact by Judge Prendergast reveal that the contention was not true.  The petitioner was apprehended in Chicago ten days after the commission of the crime when agents of the Federal Bureau of Investigation arrested him on a warrant charging unlawful flight from prosecution.
While the mere fact that an arrest was illegal affords no grounds for post conviction relief, an illegal arrest plus the use of evidence obtained through the arrest may afford such grounds.  Shefton v. Warden, 234 Md. 627. Here the contention of illegally obtained evidence is without significance because the arrest was not illegal.  Petitioner [***3]  offered nothing, other than the bare claim that an illegal search and seizure is ground for post 

 [*348]  conviction relief, to indicate that any evidence was obtained at the time of the arrest, and it seems highly improbable that ten days after and almost a thousand miles from the commission of the crime the petitioner would have with him, when arrested, any incriminating evidence of the murder or robbery.
Another matter which Judge Prendergast did not mention concerns petitioner's  [**162]  request for a free transcript of the original trial. Petitioner stated no reasons why he should be furnished the transcript except that he needed it "*** in order to support his allegations of denial of due process of law * * *." The Post Conviction Procedure Act is silent as to the furnishing of a transcript of the original trial, and without a showing that the transcript would serve a useful purpose, the request is denied.  Bauerlien v. Warden, 236 Md. 346; Gamble v. Warden, 223 Md. 633. The vague "fishing expedition" reason furnished by petitioner is not adequate.
For the reasons assigned by the lower court in its opinion, as supplemented herein, the application is denied.  [***4]  
Application denied.  

13 of 138 DOCUMENTS 

DEEN, et al. v. BALTIMORE GAS AND ELECTRIC COMPANY 

No. 264, September Term, 1965 

Court of Appeals of Maryland 

240 Md. 317; 214 A.2d 146; 1965 Md. LEXIS 455 

November 11, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order of June 17, 1965 reversed in part and modified so as to conform to the order of the County Board of Appeals of Baltimore County, of January 14, 1965, and as modified affirmed.  Costs to be paid one-half by each side.  

HEADNOTES:

Zoning -- Baltimore County -- Special Exception For Above Ground High Tension Wires -- Denial Of By Board For Area In Question Upheld -- Review Of Board's Finding By Lower Court -- Test Used.  In the instant zoning case the appellee requested a special exception to permit construction of its high tension transmission lines above ground along its entire right-of-way. It was held that the decision of the Baltimore County Board of Appeals requiring that the transmission lines be placed underground for that portion of the right-of-way which runs through the Metropolitan District of Baltimore County, except in manufacturing zones, was not arbitrary or capricious and that the Circuit Court should not have reversed this decision.  The Court stated that when a lower court reviews the decision of this quasi legislative body, the test is "whether a reasoning mind could reasonably have reached,  [***2]  after a fair consideration of the entire record, the conclusion that the Board did, or, in other words, was its action clearly erroneous and therefore not fairly debatable." It was then pointed out that when the Board is determining whether transmission lines shall be placed underground it may properly consider matters material to the public health, safety or general welfare, as well as economic consequences.  Thus, the Court held that under the above stated test, the Board was not clearly erroneous when it ordered the wires underground, because of the evidence before the Board tending to show that under the circumstances of this case, the high tension wires above ground in this area could present a safety hazard, coupled with the conclusions which reasonable men could have gleaned from the conflicting testimony as to the effect of the above ground wires on nearby property values. Therefore, it was held that the Board's finding on this matter was supported by competent, material and substantial evidence upon the whole record and was not arbitrary and capricious.
Zoning -- Baltimore County -- Special Exception For Above Ground High Tension Wires In Manufacturing Area Properly  [***3]   Granted By Board Here -- Secs. 255.1 and 243.4 Of The Regulations Construed By Court -- Buffer Zone Between Manufacturing And Residential Areas Held Not Applicable To Utility Poles.  In the instant zoning case it was held that the Baltimore County Board of Appeals was correct in not ordering the appellee to place underground its high tension transmission lines which would pass through the manufacturing zones within the Cromwell Heights to East Towson substation portion of the appellee's right-of-way. After considering Sec. 411.3 of the Baltimore County Zoning Regulations, the Court concluded that the Board was given no power to order a public utility to place its high tension wires underground within that part of the Metropolitan District which is zoned for manufacturing. However, the appellants contended that Secs. 255.1 and 243.4 of the Regulations, when read together, impose a 100 to 125 feet buffer zone between residential and manufacturing areas which would be violated if the appellee were allowed to construct the wires above ground.  In answer to this, the Court stated that, in a case such as this, they construed these regulations to mean that the residential areas were [***4]  to be protected from manufacturing buildings and manufacturing structures and that utility poles are not in a true sense manufacturing structures.  It was held that to apply these area regulations in the manufacturing zones to structures such as utility poles which are permitted uses, by special exception, in residential areas could not be sensibly supported.
Zoning -- Baltimore County -- Special Exception For Above Ground High Tension Wires Upheld Here -- Lines Crossing Heavily Traveled Highways -- Board Found That Danger To Public Was Outweighed By Inconvenience Of Repairing Underground Lines -- Evidence Held Sufficient To Support Board's Finding.  In the instant zoning case it was held that the lower court was correct in affirming the decision of the Baltimore County Board of Appeals granting the appellee's petition for a special exception for above ground construction of high voltage lines, i.e., from Cromwell Heights to the easternmost terminus of the Metropolitan line.  Although this meant that the line would cross two heavily traveled highways, the Board concluded that the relative chance of one of these poles, or of the wires strung on them, falling and [***5]  injuring a traveler upon the highway was outweighed by the possibility of inconvenience to the public which might be occasioned by the disruption necessitated in repairing the lines if they were underground. It was held that there was ample evidence in the record to support the Board's finding on this point and the conclusions drawn therefrom.
Zoning -- Baltimore County -- Special Exception For Above Ground High Tension Wires In Rural Area Upheld Here -- Evidence Insufficient To Show Unique Detriment To Public Health, Safety Or Welfare -- No Showing Of Serious Impairment Of The Use Of Neighboring Property.  In the instant zoning case the Court upheld the decision of the Baltimore County Board of Appeals to grant the appellee's petition for a special exception to construct above ground high voltage lines in a rural area.  The Court stated that Sec. 502 of the Baltimore County Zoning Regulations, which provides that special exceptions may be granted if the use requested will not "be detrimental to the health, safety or general welfare of the locality involved", implies that the effect on health, safety or general welfare must be in some sense unique or else a special exception [***6]  could never be granted in such an area for the above ground location of high tension wires. However, there was no evidence in this case to show that the effect of high tension wires on the future health, safety and welfare of this area would be in any respect different than its effect on any other rural areas.  The only evidence as to future conditions was testimony revealing the possibility of future residential development of this land but it was held that such a possibility alone did not come close to showing a future deleterious effect upon the public health, safety or general welfare. Further, it was held that the Board was not arbitrary and capricious in failing to find that there would be a serious impairment of the use of neighboring property if the special exception was granted.
Appeal -- Contention Raised By Appellee On Appeal Held Not Properly Before This Court Where Appellee Did Not File A Cross-Appeal From The Lower Court's Order.  

SYLLABUS:

Appeal by the Baltimore Gas and Electric Company from that portion of the order of the Baltimore County Board of Appeals denying the special exception to construct high tension wires above ground in a certain area.  From [***7]  an order of the Circuit Court granting the special exception in all requested areas, Albert L. Deen, Jr. and others, appeal.  

COUNSEL:
Richard A. Reid, with whom were Royston, Mueller, Thomas & McLean on the brief, for appellants.
James H. Cook, with whom were William Baxter and Paul S. Clarkson on the brief, for appellee.
Brief Amicus Curiae filed by Baltimore County, Maryland.  E. Scott Moore, County Solicitor, Walter R. Haile, Deputy County Solicitor and Harris James George, Assistant County Solicitor, on the brief.  

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

OPINIONBY:
MARBURY 

OPINION:

 [*321]   [**148]  The issue involved in this case is whether or not the Baltimore Gas and Electric Company, appellee, will be allowed to place its 115,000 volt (115-kv) transmission line above ground on dodecahedral steel poles throughout its right-of-way from Summerfield to the East Towson substation in Baltimore County.  The right-of-way runs for a distance of 5.1 miles and is, with a few exceptions, that property formerly used by the Maryland and Pennsylvania Railroad.  Under the zoning ordinances [***8]  of Baltimore County the Company was required to apply for a special exception in order to construct its high voltage transmission lines above ground.  No special exception was needed to place such lines below the surface of the ground.  Pursuant to the Baltimore County Zoning Regulations, the Company filed a petition for a special exception with the County Zoning Commissioner in November 1962 asking for a special exception to permit construction of the lines above ground along the entire right-of-way. The appellants herein, and the protestants before the Zoning Commissioner, are owners of property along the five mile right-of-way. These property owners admit that the new line is needed in order to adequately supply the electric power needs of this part of Baltimore County.  They maintain that the transmission lines should be placed underground because the proposed above ground structures would decrease property values inasmuch as they would be unsightly and also would be inimical to the health and safety of those who live nearby or who would travel on the highways over which the lines would be strung.  On the other hand, the Company does not want to be required to construct the lines [***9]  underground because underground construction is a great deal more expensive and in turn would have to be reflected in their consumer rates.
The right-of-way over which the Company proposed to place the transmission lines can be conveniently divided into three sections.  The first section is from the East Towson substation 

 [*322]  easterly to Lot 34, Section 2 in the Cromwell Heights development.  This section is within the Metropolitan District of Baltimore County, which is a term used to describe the area of the county serviced by sewer and water.  In order for a public utility to obtain a special exception within the Metropolitan District, the Zoning Regulations require that Section 502, and the additional provisions of Section 411, must be met.  Within this first section the right-of-way runs for a distance of 5,385.6 feet and the proposed high tension lines would cross Goucher Boulevard and Joppa Road, which are heavily traveled highways; would pass through a heavily built-up residential section of Towson; and also through areas which are zoned M.L. for light manufacturing. The second segment of this right-of-way for which a special exception was requested runs from Lot 34 [***10]  in Cromwell Heights easterly and then northerly to the easternmost terminus of the Metropolitan District line.  It is 6,177.6 feet in length; would cross over both the Loch Raven Boulevard and the Baltimore County Beltway; and would pass through a suburban area.  The entire length of this second segment lies within the Metropolitan District.  The third section, over which the proposed transmission lines would run, extends from the Metropolitan District line northerly to Summerfield, a distance of 15,364.8 feet. At Summerfield the Company's plan is for the transmission line to connect with a ring line, which is somewhat of an electric power beltway encircling Baltimore City some ten to fifteen miles in radius from the center of the City, a part of which is in Baltimore County.  This last segment of the proposed line runs through an area which is presently rural.
After a hearing, the Zoning Commissioner authorized the special exception the Company requested for the area outside the Metropolitan District, i.e., that area described  [**149]  as section three above.  Within the Metropolitan District the Commissioner ordered that the transmission lines be placed underground "excluding [***11]  that portion of the right-of-way in Towson, subject to the Redevelopment and Rehabilitation Commission (approximately 370 feet) and excluding the Manufacturing Zone, * * *."
The Company appealed so much of the Zoning Commissioner's 

 [*323]  decision as required it to place any of its transmission lines underground to the County Board of Appeals of Baltimore County, and pursuant to Section 501.6 of the Zoning Regulations a hearing was held de novo.  After the hearing, which lasted six days and involved a transcript of 844 pages and nearly 100 exhibits, the Board concluded that a special exception should be granted for the overhead lines along the Company's entire right-of-way except that portion which was from Lot 34 in Cromwell Heights to the East Towson substation, excluding the portions thereof which were zoned for manufacturing. From the Board's decision the Company filed an appeal to the Circuit Court for Baltimore County from that portion of the order which denied the special exception for above ground construction in that area where it ordered the lines to be placed underground, and a cross appeal was filed by the protestants from so much of that order which allowed any [***12]  of the wires to be strung above ground.
In the Circuit Court, Judge Menchine fully reviewed the entire record, together with memoranda filed on behalf of the respective parties and heard argument of counsel on both sides.  He held that the finding of facts by the Board did not support its conclusions of law in regard to that portion of its decision which required the transmission lines to be placed underground, and as a result he ordered that the case be remanded to the Board for the passage of an appropriate order granting the special exception for the construction of the power line upon dodecahedral steel poles for the entire length of the route covered by the Company's petition.  The protestants then noted this appeal.
I
First to be considered on this appeal is whether or not the Circuit Court was correct in reversing that portion of the Board's order which required the transmission lines to be placed underground from Lot 34 in Cromwell Heights to the East Towson substation, except in manufacturing zones. In regard to that portion of the Board's order, Judge Menchine held that its findings of fact did not support its conclusions of law and thus the decision was arbitrary [***13]  and capricious in a legal sense, relying upon Montgomery Co. v. Merlands Club, 202 Md. 279, 

 [*324]  96 A. 2d 261. In fairness to the lower court, it should be pointed out that clarity and internal consistency were not conspicuous attributes of the Board's written opinion.  However, a reading of that entire opinion makes it apparent to us that the Board adopted for its findings of fact the testimony of Mr. Gavrelis, Director of Planning for Baltimore County, which was supported by that of a real estate expert.  Their testimony clearly supported the Board's conclusion of law and for this reason such a conclusion was not arbitrary or capricious.
Although Mr. Gavrelis' testimony was not specifically adopted by the Board, we feel that the Circuit Court, in its review of the decision of this quasi legislative body, should have concerned itself with the question considered in Board v. Meltzer, 239 Md. 144, 153, 210 A. 2d 505, and not with the question of whether the reasons set out in the opinion supported the conclusions of law drawn therefrom.  In Meltzer we found the test to be: "whether a reasoning mind could reasonably have reached, after a fair consideration of the [***14]  entire record, the conclusion that the Council [Board] did, or, in other words, was its action clearly erroneous and therefore not fairly debatable." Thus, the court should  [**150]  have looked at all the facts to see if the conclusion reached by the Board was justified.
Section 411.3 of the Baltimore County Zoning Regulations specifically sets out the seven factors which are proper for the Board's consideration in determining whether transmission lines carrying more than 35,000 volts shall be placed underground. Section 411.3 a (7) states as one of these factors to be considered: "Any other matter or thing deemed by him [Zoning Commissioner] or them [Board] to be material in connection with the public health, safety or general welfare." The Planning Commission report, introduced into evidence by the testimony of Mr. Gavrelis, used the following language in reference to that part of the right-of-way which the Board ordered underground:
"A 100 foot setback is sought between any new residential improvement in new developments and the edge of a high voltage transmission line right of way.  Although arbitrary, the extra setback attempts to temper any adverse effect of the [***15]  power line by extra 

 [*325]  distance. Examination of land use data indicates that all of the houses on the north side of Brook Road in the Greenbrier Subdivisions do not conform to this standard nor do all of the dwellings in the Cromwell Heights Subdivision.  The Planning staff recommends therefore, that in order best to comply with the health, safety or general welfare that that portion of the transmission lines westerly from a point more or less at Lot 34, Section 2 -- Cromwell Heights, be placed underground to the terminus in East Towson."
As to the relationship between safety and the 100 feet setback requirement, Mr. Gavrelis testified that the 100 feet zone was established to insure against the possibility of home damage in the event one of the poles carrying high tension wires should fall.  The proposed poles will vary in height from 60 to 90 feet and will have crossarms extending 11 feet. The uncontroverted evidence before the Board indicated that high voltage lines have, on occasion, come down in other parts of the country.  When the lines fall they remain energized for a fraction of a second after they strike the ground and could thus start a fire if they should [***16]  come in contact with a combustible substance.  In addition, it was undisputed that lines similar to the proposed ones have sagged in close proximity to the ground as the result of an accumulation of ice, snow or sleet, or as the result of a defective tower.  Under such circumstances the circuit breakers would not work, since the line would not be grounded, and would thus present a hazard to any person coming in contact therewith.  Given the height of the proposed poles, and the chance that falling lines could start a fire which might spread to homes, we think that a reasoning mind could have found a substantial connection between the 100 feet setback requirement and the health, safety and welfare of the people living in close proximity to the high tension wires. The Board was duty bound to consider this factor of safety in determining whether to grant a special exception. In addition to his testimony as to safety, Mr. Gavrelis testified that the presence of above ground high tension wires has a tendency to decrease property values in residential areas. As a planning expert Mr. Gavrelis opined that the 100 feet setback requirement minimized 

 [*326]  the deflating effect which [***17]  above ground high tension wires has on land values.  Such economic consequences were properly considered by the Board pursuant to Section 411.3 a (6).  Besides Mr. Gavrelis, other witnesses, including Hugh E. Gelston, a real estate expert, testified before the Board that in their opinion high tension wires in this area would adversely affect property values. To rebut this, the Company produced Mr. Magee and Mr. Heinmuller, both expert real estate appraisers, who testified that in their opinions overhead lines do not have an adverse effect on property values. Because of the evidence  [**151]  as to safety, coupled with the conclusions which reasonable men could have gleaned from the conflicting testimony as to the effect of high tension wires on nearby property values, we conclude that under the test used in Meltzer, the Board was not clearly erroneous when, pursuant to the authority given the Board under Section 411.3, it ordered these high tension wires underground. For that reason this portion of the Board's findings we consider to be supported by competent, material and substantial evidence upon the whole record, and, therefore, was not arbitrary and capricious.
II [***18]  
The protestants next contend that within the manufacturing zones lying between Lot 34, Cromwell Heights and the East Towson substation, the Board should have ordered the lines to be placed underground. Why the Board did not so order becomes apparent from the clear language of Section 411.3:
"Electric light and power transmission lines carrying more than 35,000 volts shall be governed by the following principles, standards, rules, conditions and safeguards (in addition to the aforegoing):
"a. For the purposes of the control of the location and construction of such electric light and power transmission lines, there is hereby created an additional zone which shall conform to the present or future boundaries of the Metropolitan District of Baltimore County and be known as the Metropolitan Zone. Within the said Metropolitan Zone, but excluding Manufacturing Zones therein, the Zoning Commissioner or the 

 [*327]  County Board of Appeals, upon appeal, shall have the power to require that such electric light and power transmission lines or portions thereof be located underground in cables or conduits.
"In the exercise of such power, the Zoning Commissioner and the County [***19]  Board of Appeals, upon appeal, shall consider and be guided by the following factors and standards:" (Emphasis supplied.)

Then follows the list of the seven considerations previously referred to in this opinion.
From the above language it would seem that the Board was given no power to order a public utility to place its high tension wires underground within that part of the Metropolitan District which is zoned for manufacturing. To circumvent this section of the Zoning Regulations, appellants cite Section 255.1 of those regulations dealing with manufacturing zones, which reads in pertinent part as follows:
"M. L. Zone -- Manufacturing, Light
"Whenever an M. L. Zone abuts or lies across the street from a residential zone *** the use, height, and area regulations applicable to any part of the M. L. Zone which is within 100 feet of said residential zone *** shall be those listed in Sections *** 243 of these regulations. * * *"

Section 243.4 of the Zoning Regulations states:
"Proximity of Structures to Residential Zones -- No building or other structure shall be closer than 125 feet at any point to the nearest boundary line of a residential zone." [***20]  

Appellants' position is that these sections read together impose a 100 to 125 feet (depending on how one interprets the statute) buffer zone between residential and manufacturing areas in which no public utility poles may be constructed because such poles fit within the definition of "structure." Appellants assert that these regulations as applied to the instant case preclude above ground construction in the manufacturing zones of the Cromwell Heights to Towson substation portion of the 

 [*328]  right-of-way because  [**152]  in this area there is never the supposedly requisite 100 or 125 feet buffer.  By construing the regulations in this manner the appellants lose sight of the fact that the regulations referred to were designed to protect the adjacent residential areas from being in close proximity to manufacturing-type buildings, or, in other words, uses which are normally permitted only in manufacturing zones of the Metropolitan District.  To apply these area regulations in the manufacturing zones to structures such as utility poles which are permitted uses, by special exception, in residential areas cannot be sensibly supported, as will be demonstrated below.
It is [***21]  admitted by the appellants that the proposed 115-kv overhead line is a permitted use, by special exception, in all residential zones traversed by the line en route to and through a manufacturing zone. Obviously, as the line approaches the manufacturing zone, the engineering design of the line might well require that a pole be erected on residentially zoned land within 10 or 15 feet of an adjacent manufacturing zone boundary.  There can be no logical justification for requiring the next pole, which would be in the manufacturing zone, to be set back a specific distance from the adjacent residential zone from which and through which the poles have been placed.  Such an anomalous result could not have been intended by the legislative body which specifically withheld from the County Board of Appeals the power to order that transmission lines through manufacturing districts be placed underground. Since both Sections 255.1 and 243.4 appear under the title "Manufacturing," we feel justified in avoiding the anomaly which arises from the appellants' construction by finding that the legislative intent was to require that manufacturing buildings or structures be set back 100 or 125 feet [***22]  for the benefit of adjacent residential property owners.  Thus, Section 243.4 should be construed in a situation such as that which presents itself in the instant case as meaning: "*** No [manufacturing] building or other [manufacturing] structure shall be closer than 125 feet at any point to the nearest boundary line of a residential zone." Such a construction gives a logical meaning to all of the cited sections when construed together and we therefore adopt it.  Since utility poles are not in a true sense manufacturing 

 [*329]  structures, we conclude the Board was correct in not ordering underground high voltage transmission lines which pass through manufacturing zones within the Cromwell Heights to East Towson substation portion of the Company's right-of-way.
III
We now consider that portion of the Company's right-of-way which lies within the Metropolitan Zone and which both the Board and the Circuit Court agreed should be constructed above ground, i. e., from Cromwell Heights to the easternmost terminus of the Metropolitan line.  The Board, appellants contend, "ignored the importance of Section 411.3 a (1)" which lists for consideration in the grant of a special [***23]  exception for above ground high tension wires "the crossing of much traveled highways or streets." Within this portion of the Company's right-of-way this factor is said to be of significance since the line will cross "two of the most heavily traveled highways or streets in Baltimore County" (Baltimore County Beltway and Loch Raven Boulevard).  The appellants argue that the failure of the Board to give effect to this factor makes the Board's grant of a special exception arbitrary and capricious and that its affirmance, by the Circuit Court on appeal, constituted reversible error.
In regard to this consideration the Board stated as its finding of fact:
"There is no serious problem involving the crossing of much traveled highways or streets with the exception of the crossing of the major highways at or near the intersection of the Beltway and Loch Raven Boulevard, and we are convinced from testimony in this case that the safest and most practical way  [**153]  of crossing these well traveled highways would be overhead, among other reasons, because it was testified that an underground installation crossing these highways would be as much as twenty-eight (28) feet underground which [***24]  if there were a breakdown or interruption of service would cause a serious disruption of traffic on these highways while repairs were under way, 

 [*330]  as against the comparative ease of repairing any possible breakdown of overhead lines in the same location."

Implicit in the above quoted finding of fact was the conclusion that the relative chance of one of these poles, or of the wires strung on them, falling and injuring a traveler upon the highway was outweighed by the possibility of inconvenience to the general public which might be occasioned by the disruption necessitated in the repairing of underground lines.
The Board did not ignore the importance of Section 411.3 a (1) but instead chose to balance that provision against the equally relevant Section 411.3 a (7) (dealing with matters of public health, safety or general welfare) when it considered the disruptive effect a breakdown of the underground voltage line might have on the flow of highway traffic.  Except for the argument that the testimony indicated that the cables would be a maximum of 16 to 18 feet underground, instead of 28 feet, we conclude that there was ample evidence in the record to support the Board's [***25]  finding on this point and the conclusions drawn therefrom.  This being the case, the lower court was correct in affirming the Board's grant of a special exception for above ground construction of high voltage lines throughout the Company's right-of-way lying between Cromwell Heights and the easternmost terminus of the Metropolitan line.
IV
Lastly, appellants contend that the Board's decision that the line be constructed above ground from the Metropolitan District line to Summerfield was arbitrary and capricious. It will be recalled that this portion of the Company's right-of-way traverses an area which is rural and is not serviced by either public sewer or water facilities.  Sections 502 and 411.1 of the Zoning Regulations apply to the grant of special exceptions in areas such as this which lie outside the Metropolitan District.  Section 502.1 states that a special exception may be granted if the use requested will not "be detrimental to the health, safety, or general welfare of the locality involved." Appellants assert that it was error for the Board to fail to consider the future effects which the high tension wires would have on the 

 [*331]  health, safety and general [***26]  welfare of the locality "which could be reasonably anticipated in the normal course of its development." This factor was without relevance in this case, because there was no evidence produced at the hearing which would show that the effect of high tension wires on the future health, safety and welfare of this area would be in any respect different than its effect on any other rural area.  Section 502.1 implies that the effect on health, safety or general welfare must be in some sense unique or else a special exception could never be granted in such an area for the above ground location of high tension wires. The only evidence as to future conditions was testimony revealing the possibility of future residential development of this land but such a possibility alone does not come close to showing a future deleterious effect upon the public health, safety or general welfare.
The appellant additionally contends that it was arbitrary and capricious for the Board to disregard the serious impairment of the use of neighboring property which would result if the special exception is granted.  Although not specifically cited in appellant's brief, such a factor is proper for the Board's consideration [***27]  under Section 411.1 which states: "The use must be needed for the proper rendition of the public utility service and the location thereof  [**154]  shall not seriously impair the use of neighboring property." In the instant case it was uncontroverted that there is presently a need for a new transmission line to the Towson area and that the proposed line would be less disrupting and less costly than a line constructed elsewhere, since it runs largely along property which was once used as a railroad right-of-way. Moreover, the evidence shows, as found by Judge Menchine in his review of the evidence before the Board, "that the proposed line is of a more harmonious appearance than could be hoped for from any other route, for the reason that, in large part, it lies below the ridge line to the south and is screened from the view of properties lying to the north by trees." While it is true that the appellants did produce an expert, Hugh E. Gelston, who testified that the best use of this rural property would be for prestige type homes in the $ 50,000 category in acre or half acre lots, and that the proposed above ground power lines would impair such a use; there was no 

 [*332]  showing [***28]  that other less pretentious residential uses could not be made of this property.  Thus, the Board was not arbitrary and capricious in failing to find that there would be a serious impairment of the use of this land and we, therefore, have no difficulty in concluding that such part of the order of the lower court sustaining the authorization of construction of the transmission line upon dodecahedral poles from the Metropolitan District line to Summerfield was justified.
In its brief and oral argument before this Court, the Company sought to raise the issue of whether certain provisions of the Zoning Regulations authorize overhead construction throughout that portion of its route ordered underground by the Board, without the necessity of a special exception therefor.  We do not deem it necessary to decide this because the Company did not file a cross appeal from the lower court's grant of a special exception for this area, and thus the question is not properly before us.
For the reasons stated such part of the order of the lower court as differs from the order of the Board of Zoning Appeals dated January 14, 1965, will be reversed and the order of the Board will be reinstated.
 [***29]  Order of June 17, 1965 reversed in part and modified so as to conform to the order of the County Board of Appeals of Baltimore County, of January 14, 1965, and as modified affirmed.  Costs to be paid one-half by each side.  

14 of 138 DOCUMENTS 

EVANS v. WARDEN, MARYLAND PENITENTIARY 

App. No. 36, September Term, 1965 

Court of Appeals of Maryland 

240 Md. 333; 214 A.2d 144; 1965 Md. LEXIS 456 

November 11, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Application for leave to appeal from the Criminal Court of Baltimore; Prendergast, J.  

DISPOSITION:
Application denied.  

HEADNOTES:

Post Conviction Procedure Act -- Lack Of Counsel At Preliminary Hearing And Arraignment -- Petitioner Pleaded Not Guilty At Preliminary Hearing -- Under These Facts Preliminary Hearing Was Not A "Critical" Stage In Proceeding.
Post Conviction Procedure Act -- Lack Of Counsel At Time Of Sentencing -- Petitioner's Claim Was Without Substance.
Post Conviction Procedure Act -- Claim That Court-Appointed Counsel Did An Inadequate Job Of Acquainting Himself With Case Was An Unsupported, Bald Allegation Affording No Basis For Relief.
Post Conviction Procedure Act -- Claim Of Inadequate Representation Because Of Failure To Call Witnesses Is A Ground On Which Relief May Be Granted If The Alleged Error Has Not Been Previously And Finally Litigated -- In This Case Claim Was Raised On Appeal -- However, This Court Did Not Then Decide Question, But Affirmed The Conviction Without Prejudice To Right To Petition For Post Conviction Relief -- However, Lower Court's Determination Of Factual Question At Hearing, That Claim Was Unsupported, Was Not Shown To Be Incorrect [***2]  .
Post Conviction Procedure Act -- Claim Of Lack Of Representation By Counsel In Motion For New Trial Was Not Borne Out By Facts.  

SYLLABUS:

William Evans, Jr., instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief he applied for leave to appeal.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*334]   [**144]  William Evans, Jr. was arrested, indicted and tried on the charge of attempted robbery with a deadly weapon.  He was convicted by the trial court sitting without a jury.  His motion for a new trial was denied by the Supreme Bench of Baltimore City, and he was sentenced to a term of twenty years in the Maryland Penitentiary.  He then caused an appeal to be taken to the Court of Appeals which affirmed the judgment in Evans v. State, 236 Md. 532. At the time of the Court of Appeals decision, Evans had a writ of habeas corpus pending which was eventually denied by Judge Harris in the Baltimore City Court subsequent to the disposition of the appeal.  The petitioner now raises four contentions under the Post Conviction Procedure Act.
The [***3]  first contention is that he was not represented by counsel at his preliminary hearing or when first arraigned.  At the hearing of this application for leave to appeal which was held before Judge Prendergast, petitioner testified that he pleaded not guilty at the preliminary hearing and at his arraignment.  Such circumstances  [**145]  take this case outside the facts of White v. Maryland, 373 U.S. 59, 10 L. Ed. 2d 193 (1963), where the Supreme Court considered the preliminary hearing in Maryland to be a "critical" stage in the proceedings, as defined in Hamilton v. Alabama, 368 U.S. 52, 7 L. Ed. 2d 114 (1961), when a guilty plea is entered by the defendant without aid of counsel and evidence of that plea is introduced at the trial.  This Court has held that the White case does not apply in circumstances 

 [*335]  such as those before us now.  See Mercer v. State, 237 Md. 479, 485, where the defendant made no plea at the preliminary hearing; and Fabian v. State, 235 Md. 306, 319, and Arrington v. Warden, 232 Md. 672, 674, where the defendant pleaded not guilty at the preliminary hearing.
Petitioner's second contention alleges that he was not represented [***4]  by counsel at the time he was sentenced. This claim is without substance.  At the hearing, the petitioner admitted that Mr. James A. Ehrhart, his court-appointed trial counsel, was present but asserted that Mr. Ehrhart did nothing on his behalf and that petitioner had to address the court himself.  The transcript of the proceedings reveals that this was not the case, and Judge Prendergast found his testimony in this respect to be false.
Petitioner's next contention is that Mr. Ehrhart did an inadequate job of acquainting himself with the case and did not endeavor to gather the facts necessary for adequate representation.  In particular, petitioner alleges that Mr. Ehrhart did not comply with his request to summon three alibi witnesses.  In so far as these two contentions are treated as separate grounds for post conviction relief, the former cannot be considered because it amounts to no more than a bald allegation with no specific ground to support it and therefore affords no basis for relief.  McCoy v. Warden, 234 Md. 616.
The specific contention of failure to call witnesses, on the face of it, does present a claim on which relief may be granted.  As pointed out in Hyde v.  [***5]   Warden, 235 Md. 641, 646, the contention of inadequacy of counsel is no longer limited in our post conviction procedure to allegations of fraud or collusion or when objection or complaint has been made in the trial court.  This ground for post conviction relief is, of course, still subject to the provision that the alleged error has not been previously and finally litigated, and this includes the situation where this Court has rendered a decision on the merits of the allegation of error.  Code (1965 Supp.), Art. 27, §  645A (a) and (b).  In petitioner's appeal, reported in 236 Md. 532, the only point raised was the alleged inadequacy of counsel at petitioner's trial and particularly counsel's failure to heed petitioner's request to summon certain alibi witnesses.  The Court 

 [*336]  stated that the allegation of inadequacy of counsel could not be decided on the basis of the record on appeal.  The conviction was affirmed without prejudice to the right to file a petition for post conviction relief in which the factual questions presented could be decided.
At the hearing, Judge Prendergast determined that petitioner had only given the lawyer representing him on appeal the name of [***6]  one person and that person could not be located.  At the hearing, petitioner only furnished the lower court the name of a "Mr. Livingston." Mr. Ehrhart was called to testify at the hearing and he produced his file and all his notes pertaining to the case and testified under oath that when he interviewed petitioner prior to his trial, he did not give him the names of any witnesses to testify on his behalf.  The court believed Mr. Ehrhart and found as a fact that the testimony of petitioner as to giving counsel the names of witnesses was not true, nor was it supported by the circumstances surrounding the handling of the case.  Other than reiterating his version of the facts, petitioner suggests here no  [**146]  reason why Judge Prendergast's determination was not correct.
Petitioner finally claims that he was not represented by counsel in his motion for a new trial. The facts as found at the hearing do not bear this out.  At the conclusion of his trial, petitioner informed the court that he wished to file a motion for a new trial. His court-appointed trial counsel filed the appropriate motion and then withdrew from the case.  Judge Sodaro appointed George H. Rosedom, Esquire, to [***7]  represent him.  Mr. Rosedom interviewed his client and prepared and filed a memorandum before the Supreme Bench of Baltimore City on petitioner's behalf.  Unfortunately, Mr. Rosedom died suddenly in February 1964 before the petition for new trial was heard.  Milton B. Allen, Esquire, in whose office Mr. Rosedom served as a partner, handled the motion for a new trial in place of the deceased.
Application denied.  

15 of 138 DOCUMENTS 

KEYWORTH v. ISRAELSON et al.  

No. 404, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 289; 214 A.2d 168; 1965 Md. LEXIS 453 

November 8, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Harris, J.  

DISPOSITION:
Decree of October 9, 1964 affirmed and so much of order of court of October 14, 1964 as re-enacts the said decree affirmed; remaining issues of case remanded without affirmance or reversal for further proceedings consistent with the views expressed in this opinion; one-half the costs to be paid by appellant, Keyworth, and the other one-half to be paid by appellees Plimack and Israelson.  

HEADNOTES:

Attorneys -- Dismissal Of Appeal -- Finding That Client Had Authorized, Held Not Clearly Erroneous.  After examining the entire record extract in the light of the appellant's contention that his two original attorneys should have received no counsel fee whatever in a third-party case because they dismissed the appeal in the case contrary to his express instructions, this Court held that the trial court was not clearly in error in finding that the second original attorney had properly performed his professional duties in the conduct of the trial and thereafter, and that the appellant had expressly authorized him to dismiss the appeal.
Attorneys -- Claim By Client That Fee Allowed Should Be Reduced Because Of  [***2]   Attorneys' Alleged Failure To Prosecute Workmen's Compensation Remedies To Conclusion Before Trying Third-Party Action, Allegedly Resulting In Loss To Client -- Case Remanded For Taking Of Additional Testimony Proffered By Client's Present Counsel.  The appellant in this case claimed that the amount of the fee allowed to his two original attorneys in a third-party action instituted upon his behalf should have been reduced because they allegedly failed to prosecute his workmen's compensation remedies to a conclusion before trying the third-party action.  The argument was that if the award for compensation for permanent partial disability had been made prior to the third-party litigation, the compensation insurer would have been chargeable with a larger share of the counsel fees and the court costs, thus increasing the appellant's net recovery.  This Court held that in view of the fragmentary state of the record upon this point, and the duty of the courts to insist upon full compliance, in spirit as well as in letter, with the high standards inherent in the carrying on of the legal profession, it would advance the purposes of justice by remanding this phase of the case for further [***3]  proceedings, including testimony proffered by the appellant's present counsel. This testimony was admissible to show the appellant's loss, if any, caused by the first original attorney's failure to obtain a prompt hearing upon the compensation claim.  It was for the trial court to consider the effect of any such loss upon the proper amount of fee to be allowed.  The fact that the second original attorney entered the case at a later date did not necessarily absolve him from any effect that the proffered testimony might have had upon the relationship between the parties.  While the agreement between the appellant and the two attorneys expressly stated that it superseded the original agreement between the appellant and the first attorney, and while a court will not undertake to redraft a contract when its terms are plain and unambiguous, in a confidential relationship such as that of attorney and client, the burden is upon the attorney to show a transaction as to fee to be voluntary and fair.  This rule is applicable when the attorney asserts his claim in an equity court to part of a fund paid into court, as in the case at bar.
Attorneys -- In Determining Whether Attorney Has Met  [***4]   Burden Of Proof Cast Upon Him To Show That Transaction As To Fee Is Voluntary And Fair, Court Must Consider All Of The Facts And Circumstances In Particular Case.
Liens -- Equitable -- Some Rules As To.  An equitable lien is based upon specific enforcement of a contract to assign property as security.  The contract need not stipulate for the lien in express terms; it is enough if that is the fair and reasonable implication of the terms employed.  A mere promise to pay a debt or obligation does not of itself, however, create a lien unless the intention to do so is apparent from the instrument and the circumstances leading up to it.  The same principles apply when the controversy is between only the original creditor and the debtor as are applicable where the rights of other creditors are involved.  The danger that the fund might be dissipated before the creditor is able to prove his right to recover at law does not, of itself, give a court of equity jurisdiction if no lien has been created.
Liens -- Equitable -- Claim Against Settlement Fund By Employer Who Had Advanced Sums To Employee -- Employer Was Given Lien Under Agreement Here, And Was Properly Permitted To Intervene  [***5]   In Pending Litigation.  By agreement in the present case an employer had advanced certain periodic sums to an injured employee whose suit in a third-party action resulted in the creation of a settlement fund. While there was no express provision in the agreement creating an equitable lien, the Court held that it was apparent from all of the circumstances here, as well as the language of the agreement, that the parties intended that if the employee became successful in his third-party action, the employer was to have an equitable lien against the proceeds for the repayment of the sums advanced, and that the agreement in effect assigned any proceeds of the action as security for such repayment. The attorney first employed by the employee was, at least originally, the employer's attorney and was retained by the employee at the employer's insistence. It was this attorney who prepared the agreement between the parties.  The Court held that in the light of these facts, the employee's authorization to this attorney to issue his check to the employer for the repayment of the advances upon the successful conclusion of the third-party litigation was a clear indication that the parties [***6]  to the agreement looked to the creation of a fund consisting of the proceeds of the verdict or a settlement resulting from the third-party action.  Since the employer was given a lien under the agreement, the lower court properly permitted its intervention in the litigation pending here.  The employer had also filed a lawsuit against the employee to recover the sums advanced, and because it was apparent that both parties to the lawsuit wished their rights determined at law rather than in equity, the lower court here committed no error in providing merely for the retention of the sums advanced in the equity proceedings until the final determination of the lawsuit. 

SYLLABUS:

Proceeding in equity to determine the rights of certain parties in a settlement fund.  From a decree of October 9, 1964, directing the retention of the sum of $ 7200 pending the final determination of a lawsuit between Industrial Sales Co., Inc., and Charles E. Keyworth, and from an order of October 14, 1964, making a similar provision and also directing, inter alia the payment of a portion of the fund to Max R. Israelson and Stafford H. Plimack, Charles E. Keyworth appeals.  

COUNSEL:
Paul Berman, with whom was  [***7]  Bayard Z. Hochberg on the brief, for the appellant.
J. Cookman Boyd, Jr., with whom was Walter S. Levin on the brief, for Max R. Israelson and Stafford H. Plimack, two of the appellees.
Delverne A. Dressel, with whom was Emanuel H. Horn on the brief, for Industrial Sales Co., Inc., the other appellee.  

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

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*293]   [**169]  This appeal involves the rights of attorneys and client in a settlement fund under  [**170]  a fee agreement and the right of a creditor of the client to an equitable lien against the fund.  The client, Charles E. Keyworth (Keyworth) has appealed from an order of the Circuit Court No. 2 of Baltimore City directing that one-third of the fund (after expenses and costs) be paid to the attorneys, Max R. Israelson (Israelson) and Stafford H. Plimack (Plimack) and from a decree of that court ordering the amount advanced to Keyworth by his employer, Industrial Sales Co., Inc. (the Employer) retained from the proceeds of the fund pending the final determination of a law suit between the Employer and [***8]  Keyworth.
On September 29, 1959, Keyworth, while in the employ of the Employer, sustained serious injuries when an automobile which he was operating in the course and scope of his employment was struck by a truck operated by Stephen Brown while on business of Brown's employer, Fleet Transfer Company.  Some three days after the collision, Plimack who, it is claimed, was the attorney for the Employer, came to see Keyworth and was employed by him, under circumstances to which reference will be made hereafter.  Keyworth and his wife signed an agreement under which Plimack undertook to represent the Keyworths in connection with their claim against Brown and Fleet Transfer Company.  This agreement provided for a fee to Plimack of twenty-five per cent of any amount received, if the case were to be settled out of court, and one-third of any recovery in litigation.  On October 10, 1959, Keyworth executed a claim for compensation, which was filed for him by Plimack with the Maryland Workmen's Compensation Commission on October 16, 1959.  On November 9, 1959, the Commission ordered that Keyworth receive temporary total disability benefits of $ 40 a week, which he received from the date of the [***9]  injury through June 19, 1960.  He also received temporary partial disability benefits from June 20, 1961 through September 24, 1961, and medical and hospital expenses under the Employer's compensation insurance.  The temporary total and temporary partial disability benefits amounted to $ 3201.43, and the 

 [*294]  medical and hospital expenses totaled $ 1030.  While Plimack had requested a hearing on behalf of Keyworth to determine the nature and extent of permanent disability, no hearing was held on this issue until April 21, 1964, after Keyworth's present counsel had entered the case and Plimack's name, at Keyworth's request, had been removed as Keyworth's attorney from the compensation proceedings.  On April 27, 1964, the Commission found that Keyworth had sustained a permanent partial disability under "Other Cases" amounting to fifty per cent industrial loss of the use of his body and ordered compensation at the rate of $ 25 a week beginning September 25, 1960, not to exceed the sum of $ 6250.  The Employer and its insurer, in another case, have appealed this order of the Commission.
On March 8, 1960, Plimack filed suit on behalf of Keyworth against Brown and Fleet Transfer [***10]  Company as third-party tort-feasors.  On May 28, 1962, on Plimack's recommendation, Keyworth agreed to employ both Plimack and Israelson as his attorneys to try this case.  This agreement expressly provided that it superseded the original fee agreement between Keyworth and Plimack.  Under the 1962 agreement, Keyworth authorized Plimack and Israelson to carry on the suit or compromise it and agreed to pay them one-third of the amount recovered; he also authorized the attorneys to pay the necessary medical and hospital and other expenses out of his share of any recovery.
The trial of the third-party case concluded on December 3, 1962 and resulted in a jury verdict in Keyworth's favor for $ 15,000, an amount which was disappointingly low to Keyworth and his attorneys.  It is agreed that the main reason for what is claimed to be the relatively small judgment was that the defendants produced and showed motion picture films depicting Keyworth's movements prior to the trial, which contradicted Keyworth's claims of disability resulting from the collision.
 [**171]  An appeal was immediately discussed, a motion for a new trial was made and denied, and Israelson ordered the transcript written [***11]  up.  In February, 1963, Keyworth raised and gave to Israelson the necessary monies to perfect the appeal.  Israelson was pessimistic as to the chances on appeal.  Keyworth was convinced there was something wrong with the films. Israelson obtained an offer of an additional $ 1600 to settle the 

 [*295]  appeal.  Israelson contends, and Keyworth denies, that Keyworth authorized the dismissal of the appeal in view of the offer totalling $ 16,600.
Keyworth refused to sign the settlement papers and Israelson filed an order with the court clerk to have the judgment entered to his and Plimack's use to the extent of the agreed fee, in accordance with the express authorization contained in the fee agreement of May 28, 1962, and a judgment was entered to their use to the extent of their one-third attorney's fees.  Thereafter, Israelson and Plimack petitioned for the appointment of a trustee to execute settlement papers and to hold and disburse the funds and, after an answer had been filed by Keyworth, the case was transferred by consent to the Circuit Court No. 2 of Baltimore City and an order signed appointing the clerk of that court trustee to hold the settlement fund subject to further [***12]  order.
On December 31, 1959, the Employer and Keyworth entered into an agreement which recited that while Keyworth was then receiving $ 40 a week under the Commission's order of November 9, 1959 as compensation for temporary total disability, he had been earning approximately $ 100 a week take-home pay and wished to receive weekly advances from the Employer in the amount of $ 100.  The agreement, which was prepared by Plimack, provided that the Employer would pay Keyworth $ 100 a week from the time of the accident until he returned to work on a full-time basis; that Keyworth would maintain his suit against Brown and the Fleet Transfer Company through his attorney, Plimack, and that, upon the successful conclusion of the case, he authorized Plimack to issue a check to the Employer for the amount to be advanced by the Employer, excluding any bonuses or presents.  The Employer made advances to Keyworth under this agreement in the total amount of $ 7200.  After the court below had appointed the clerk as trustee of the sum of $ 16,600, the Employer filed a petition in the proceedings alleging that the sum on deposit was subject to an assignment-lien in its favor in the amount of $ 7200 [***13]  under its agreement with Keyworth and asking that the court order payment of this sum to the Employer out of the fund.  Keyworth answered this petition denying that the Employer was entitled to the relief 

 [*296]  it prayed; the Employer thereupon filed a petition to intervene and was authorized to do so on September 23, 1964.  On September 11, 1964, the date the Employer filed its petition to intervene in the proceedings in the Circuit Court No. 2, it filed a lawsuit against Keyworth in the Baltimore City Court for the sum of $ 7200 under its agreement, asking for summary judgment.
After the taking of testimony and the filing of an opinion, Judge Harris, in the court below, entered an order, on October 14, 1964, awarding to Israelson and Plimack a one-third fee of the $ 16,600, less the cost of the transcript and the cost of the appeal, in the net amount of $ 5292.12.  The order also awarded to the Employer's compensation carrier the sum of $ 2697.41, representing its lien of $ 4231.43 less its proportionate share of approximately twenty-five per cent chargeable under Code (1957), Article 101, Section 58, and ordered $ 7200 held in escrow pending the outcome of the civil action [***14]  brought by the Employer against Keyworth in the Baltimore City Court.  The order awarded Keyworth $ 723.65 as reimbursement for costs advanced and provided that the balance of the fund, $ 668.82, be held in escrow pending the outcome of the compensation appeal with respect to the award of permanent partial disability. Judge Harris had also provided for the retention of the sum of $ 7200 pending the final determination of the suit of the Employer  [**172]  against Keyworth in his decree dated October 9, 1964.
Keyworth's first contention is, that the lower court erred in awarding any counsel fee to Plimack and Israelson because they had dismissed the appeal in the third-party case without Keyworth's consent.  He contends, second, that, in any event, the fee should be substantially reduced because Keyworth's compensation remedies had not been prosecuted to conclusion before the third-party action was tried and that, if he had received his award for permanent partial disability before the trial, there would have been a substantial benefit to him as to the amount of fees to be charged against him out of the fund.  Third, Keyworth contends that the lower court erred in retaining the [***15]  $ 7200 from the proceeds of recovery pending final determination of the law action brought by the Employer against Keyworth, because there was no equitable lien.

 [*297]  I
In this appeal from the order of the Chancellor, Keyworth first contends that Plimack and Israelson should have been allowed no counsel fee whatsoever because they dismissed the appeal from the judgment in the third-party case against Brown and Fleet Transfer Company contrary to Keyworth's express instructions.  Keyworth recognizes that the issue here involved is entirely one of fact.  He recognizes, further, the purport of Maryland Rule 886 a. that when an action has been tried by a lower court without a jury, the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.  Keyworth argues, however, that on the issue here involved, in the light of the testimony, the finding of the lower court was clearly erroneous.
To support his contention, Keyworth relies on various aspects of the testimony.  He points to the undisputed fact that, despite Israelson's feeling that the [***16]  appeal was weak, he, Keyworth, wrote a formal letter to Israelson on July 1, 1963 stating that "[a]fter serious deliberation, I insist that you continue with the appeal." Despite this letter, Israelson testified that his alleged authority from Keyworth to dismiss the appeal was given in a telephone conversation in the first week of September and that he, Israelson, had no written memorandum in his file to indicate when the final authorization was given and did not confirm the alleged conversation by letter.  Keyworth had consulted a film expert, in an endeavor to show distortion in the moving pictures which proved so disastrous at the trial to Keyworth's claim of disability, and had received a written report from the expert as late as August 23, 1963 which confirmed his suspicions about the film. Keyworth stresses some inconsistencies in the testimony of Israelson as to the extent and manner in which Israelson consulted Melvin Sykes, a highly respected member of the bar who does much appellate work, as to the chances on appeal and Sykes' own recollection of what transpired.  To rebut Israelson's testimony that he was always faced with the spectre of a new trial in which Keyworth [***17]  might get less, Keyworth points to the fact that, as a result of the order of the lower court, without a new trial, he will get nothing 

 [*298]  in any event.  Keyworth refers to other phases of the testimony to support his contention that the dismissal of the appeal by Israelson was clearly unauthorized, was an act of bad faith in the performance of his professional duties to his personal advantage to save the necessity of further endeavor and that, therefore, neither Israelson nor Plimack is entitled to any compensation for their services.
In his opinion, Judge Harris reviewed and analyzed the conflicting testimony as to whether or not Keyworth had authorized the dismissal of the appeal.  He referred to Keyworth's testimony that, after Israelson had told him in June, 1963 that the chances of success on the appeal, in his opinion, were slight, he, Keyworth, talked  [**173]  to a number of "influential people" concerning the appeal, but, when pressed on recross-examination as to the identity of the persons to whom he had talked, his testimony was extremely vague and, to Judge Harris, unconvincing.  The judge was impressed by the fact that if Keyworth was unable to recall the [***18]  identity of any of the "influential people" with whom he discussed his case during the summer of 1963 (apart from his present counsel), it is probable that he could not accurately recall the details of his telephone conversation with Israelson in September, 1963.  The judge had examined the transcript of the trial in the third-party case and referred to the fact that Israelson is "an experienced, skilled, and reputable trial attorney of known ability in personal injury negligence cases" and found that an examination of the transcript and the actions taken by Israelson following the trial showed no evidence of any malpractice on his part.  As to Israelson's consultation with Sykes and Israelson's alleged failure to show Sykes a part of the transcript containing alleged erroneous trial rulings in the refusal to allow Keyworth to testify in rebuttal on the motion pictures, Judge Harris pointed out that Israelson was under no obligation to consult Sykes in the first place and that, at the most, it is debatable as to whether Israelson should have shown Sykes the portion of the transcript which Keyworth contends was important.  Sykes had testified he could not give any advice as to the merit [***19]  of the appeal without some prior legal research.  Judge Harris stressed the fact that Israelson, in good faith, did seek to obtain "an 

 [*299]  objective, expert appraisal of the chances of the appeal's success, when he was under no duty to do so."
We have examined the entire record extract in the light of Keyworth's contentions.  In our opinion, the findings of Judge Harris that Israelson had properly performed his professional duties in the conduct of the trial and thereafter and that Keyworth had expressly authorized Israelson to dismiss the appeal are not clearly erroneous and, therefore, will not be set aside.
II
Keyworth contends that even if this Court finds, as it has, that the lower court was not clearly in error in holding that Keyworth authorized the dismissal of the appeal, nevertheless the amount of the fee allowed to Plimack and Israelson should be reduced because of their alleged failure to prosecute Keyworth's compensation remedies to a conclusion before trying the third-party action against Brown and Fleet Transfer Company.  Keyworth argues that, if Plimack or Israelson had caused Keyworth's claim to compensation for permanent partial disability to be heard before [***20]  the Workmen's Compensation Commission and an award made before the trying of the third-party action, then the resulting fees to Israelson and Plimack would have been less and the benefit to Keyworth substantially greater.  This contention is based upon an alleged conflict of interest as well as failure to perform professional duties.
Keyworth testified in the proceedings below, without contradiction, that after his accident he employed Plimack as his attorney because of the insistence of the Employer.  He stated that he talked with Mr. Louis Schloss, the president of the Employer, on the telephone after the accident and it was agreed that Keyworth needed an attorney and Schloss said he would send his attorney down.  Judge Harris accepted as a fact that Keyworth employed Plimack on the insistence of the Employer.
Keyworth testified that when Plimack came to see him at his home, about three days after the accident, Plimack said that "he would take care of the compensation bit." In fact, on October 10, 1959, about two weeks after the accident, Keyworth executed a claim for compensation, which was filed by Plimack as Keyworth's attorney, with the Maryland Workmen's 

 [*300]  Compensation [***21]  Commission on October 16, 1959.  Plimack immediately requested a hearing  [**174]  before the Commission on behalf of Keyworth to determine the nature and extent of permanent disability.  The order of the Commission for the payment of temporary total disability to Keyworth at $ 40 a week was passed on November 9, 1959; Plimack did not press any claim for counsel fee for the securing of this order or the payment of medical expenses.  The Commission advised Plimack on May 14, 1962 that Keyworth's case was set for hearing on the nature and extent of permanent disability on May 25th but the file of the Commission, which was made part of the record below, shows that the hearing was postponed and the file was noted on May 24, 1962 "Do not reset until requested." The hearing on the claim for permanent partial disability was not held until April 21, 1964 when Keyworth was represented by his present counsel; as a result of this hearing, Keyworth received a total of $ 6250 additional compensation.
At the hearing before Judge Harris, counsel for Keyworth made the following proffer in connection with this phase of the case:
"I want to show that Mr. Keyworth employed Mr. Plimack at the insistence [***22]  of his employer, that was obvious conflict of interest.  Mr. Plimack was the employer's lawyer and representing Mr. Keyworth.
Now, he did file a claim for compensation and was paid some compensation for some period.  The conflict was very apparent because rather than permit Mr. Keyworth to get his compensation, all the compensation to which he was entitled, which might have increased his employer's insurance premium because of the loss ratio, Mr. Plimack elected on his own to file suit on behalf of Mr. Keyworth.  And although the records will show, the records of the commission will show the case was set for a hearing on numerous occasions to determine the nature and extent of Mr. Keyworth's injury whereby he would get an award for permanent partial, the obtaining of which would cost him a whole lot less in counsel fees than it would 

 [*301]  be by obtaining it in the third party suit, Mr. Plimack misrepresented this man in so doing, that is in continuing those hearings and not pursuing the hearings before the commission, and letting it go to trial against the third party proceeding."

The trial judge did not permit Keyworth to offer testimony pursuant to the proffer because [***23]  it related largely to conversations between Keyworth and Plimack out of the hearing of Israelson and prior to the time that Israelson had been employed by Keyworth.
Under the provisions of Code (1964 Repl. Vol.) Article 101, Section 58, when there is an injury for which compensation is payable under the Article, caused by circumstances creating a legal liability in a third person, and there is a recovery against the third person, the employer and his insurance company have a right to be reimbursed for compensation paid or awarded and for any amounts paid for medical services, except court costs and counsel fees.  Court costs and counsel fees are to be paid by the injured employee and his employer and the compensation insurance carrier in the proportion that the amount received by each shall bear to the whole amount paid in settlement or satisfaction of any judgment obtained in the case.  Keyworth contends that, if his award for compensation for permanent partial disability had been made prior to the third-party litigation, the compensation insurer would have been chargeable with a larger share of Plimack's and Israelson's counsel fees and the court costs.  The compensation insurer [***24]  would have had to pay counsel fees and costs to cover its share of the supplemental award of April 27, 1964 which it would have received in subrogation against the money recovered from the third parties, in the same manner in which the Chancellor reduced the compensation insurer's reimbursement  [**175]  from the third-party settlement for its payments under the original award of November 9, 1959.  Keyworth's net recovery, then, would have been increased by the additional amount that the compensation insurer would have contributed to the counsel fees and court costs.  Keyworth requests that the Plimack-Israelson fee be reduced by such amount as the compensation insurer would have 

 [*302]  contributed and Keyworth's share of the fund be increased pro tanto.
Plimack and Israelson deny that there was any conflict of interest in their representation and contend that the agreement between them and Keyworth of May 28, 1962 takes the place of any prior agreement, is unambiguous and supports the distribution of the fund ordered by the court below.  In our opinion, however, the matter is not so clear, particularly in view of the high fiduciary duties imposed upon attorneys in their [***25]  relationship to their clients.
Canon 6 of the Canons of Professional and Judicial Ethics of the American Bar Association (1957), which is also Canon 6 of the Canons adopted by the Maryland State Bar Association, sets forth the fundamental concept that:
It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.
It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts * * *"

In the early case of Zimmerman v. Bitner, 79 Md. 115, 126 (1894), this Court said:
"The broad principle, says Vice-Chancellor Wood, on which the court acts in cases of this description, is that wherever there exists such a confidence, of whatever character that confidence may be, as enables the person in whom confidence or trust is reposed, to exert influence over the person trusting, the court will not allow any transaction between the parties to stand, unless there has been the fullest and fairest explanation and communication [***26]  of every particular resting in the breast of the one who seeks to establish a contract with the person so trusting him.  Tate v. Williamson, L. R. 1 Eq. 528."

It is also true, however, that even when a transaction between 

 [*303]  an attorney and his client is questioned, if the attorney can show that the client entered into the relationship voluntarily, deliberately and advisedly, knowing its nature and effect, and that there was no concealment of any kind or undue means used to obtain the client's consent, the transaction will be sustained.  McLean v. Maloy, 136 Md. 467, 513, 111 Atl. 91 (1920). See also Silverman v. Kogok, 239 Md. 71, 76, 210 A. 2d 375 (1965).
In the hearing below, Keyworth testified that he was not at all familiar with proceedings before the Workmen's Compensation Commission.  The record shows that proceedings were taken before the Commission by Plimack as Keyworth's attorney for temporary total disability payments after the original agreement as to fee between Keyworth and Plimack had been signed.  There is nothing in the record to indicate Plimack's reasons for not proceeding with the hearing as to Keyworth's claim for compensation for [***27]  permanent partial disability, or whether or not he explained such reasons to Keyworth.
It is undisputed that Plimack acted as counsel for both the Employer and Keyworth in the drawing of the agreement dated December 31, 1959 between the Employer and Keyworth, under which the Employer agreed to advance Keyworth $ 100 a week.  No conflict is indicated, however, in Plimack acting for both parties in the drafting of this agreement.  There was no legal obligation of any kind on the Employer  [**176]  to make the advances and the agreement expressly set forth that the $ 40 a week which Keyworth was receiving for temporary total disability was to remain his sole property except for any subrogational rights the insurance carrier might have.
The original written agreement as to compensation between Keyworth and Plimack, in terms, referred only to the third-party action.  Keyworth's testimony that Plimack also agreed to "take care of the compensation bit" was not contradicted.  Additional testimony may show the nature of the agreement as to Plimack's representation of Keyworth for claims for compensation.  We think that the court below should have accepted the testimony proffered by Keyworth's [***28]  counsel.  The testimony was admissible to show Keyworth's loss, if any, caused by Plimack's failure to have had a prompt hearing on Keyworth's claim for 

 [*304]  permanent partial disability. If there was such a loss to Keyworth, it was for the trial court to consider the effect on the proper amount of fee to be allowed.  We do not agree that because Israelson entered the case at a later date he was necessarily absolved from any effect that the proffered testimony might have had on the relationship of the parties.  It is true that the agreement of May 28, 1962 between Keyworth, as client, and Plimack and Israelson, as attorneys, expressly stated that it superseded the original agreement.  It is also true that, as Plimack and Israelson contend, a court will not undertake to redraft a contract when its terms are plain and unambiguous.  Hankins v. Public Service Mutual Insurance Co., 192 Md. 68, 84, 63 A. 2d 606 (1949). However, in a confidential relationship such as that of attorney and client, the burden is upon the attorney to show a transaction as to fee is voluntary and fair.  Tucker v. Dudley, 223 Md. 467, 473, 164 A. 2d 891 (1960); McLean v. Maloy, supra, 513. The [***29]  rule is applicable when the attorney asserts his claim in an equity court to part of a fund paid into court.  Tucker v. Dudley, supra. In determining whether an attorney has met the burden of proof which the law casts upon him, the court must consider all the facts and circumstances in the particular case.  Baker v. Otto, 180 Md. 53, 56, 22 A. 2d 924 (1941).
It was at Plimack's suggestion, because of Israelson's experience and reputation as a trial attorney in actions for personal injuries, that Keyworth authorized Israelson's employment with Plimack in the third-party litigation.  It may be that Keyworth would have been satisfied to pay an additional contingent fee to Israelson because of his reputation.  It may also be, however, in the light of the additional testimony which we believe is indicated and all the facts and circumstances, that the second fee agreement is to be construed in the light of whatever understanding may be found to have existed at the time Keyworth first employed Plimack as to the prosecution of the proceedings before the Commission.  There is also to be considered whether Israelson, on all the facts, was under a duty to make sure that Keyworth understood [***30]  the possible effect on the agreed-upon fee of the failure to have obtained an award from the Commission for permanent partial disability before the trial of the third-party case.

 [*305]  In what we have said, we do not intend to reflect upon the professional conduct of the attorneys involved in these proceedings.  It is our opinion, however, that in view of the fragmentary state of the record as to this aspect of the case and the duty of courts to insist upon the full compliance, in spirit as well as letter, with the high standards inherent in the carrying on of the legal profession, the purposes of justice will be advanced by providing for further proceedings, which would include the testimony of Plimack, in accordance with Maryland Rule 871 a.
III
Keyworth contends that the lower court was in error in permitting the Employer to intervene in the proceedings; in its decree of October 9, 1964 providing that  [**177]  the clerk of the court retain the sum of $ 7200 pending the final determination of the lawsuit of the Employer against Keyworth; and in making a similar provision in its order of October 14, 1964.  Keyworth submits that the agreement between the Employer and himself [***31]  is no more than a contract, the breach of which would entitle the injured party to maintain a lawsuit for damages but that the agreement does not expressly or impliedly create a lien against the proceeds of the third-party action.  The Employer argues that the clear intention of the agreement of December 31, 1959 was not only to make the contract but also to provide a lien against the fund, if and when created, and that the lower court was correct in its orders and decree.
An equitable lien is based on specific enforcement of a contract to assign property as security.  The contract need not stipulate for the lien in express terms; it is enough if that is the fair and reasonable implication of the terms employed.  A mere promise to pay a debt or obligation does not of itself, however, create a lien unless the intention to create it is apparent from the instrument and circumstances leading to it.  Johnson v. Johnson, 40 Md. 189, 196 (1874). See 33 Am. Jur. Liens §  18 and 4 Pomeroy's Equity Jurisprudence § §  1235-1237 (5th ed. 1941); but also see 41 Harv. L. Rev. 404 (1928).
In most cases involving the question of whether or not an equitable lien has been created, the rights [***32]  of other creditors are involved, but the same principles apply when, as here, the 

 [*306]  controversy is only between the original creditor and the debtor.  The danger that the fund might be dissipated before the creditor is able to prove his right to recover at law does not, of itself, give a court of equity jurisdiction, if no lien has been created.  See 33 Am. Jur. Liens §  6 and cases therein cited.
In Johnson v. Johnson, supra, the plaintiff and defendant had entered into an agreement under which the defendant promised to pay $ 2500 to the plaintiff in full satisfaction of all claims, $ 500 of which was to be paid within thirty days, $ 1000 out of the first payment made on the sale of the defendant's farm, "Harmony Grove", and the other $ 1000 out of the second payment.  The plaintiff promised to give the defendant the immediate possession of the farm, which he did.  The defendant only paid the first instalment of $ 500.  The plaintiff filed a bill in equity asking an enforcement of the defendant's covenant as a charge or lien on the land and praying that the farm be sold to raise the fund to pay off the amount due.  The decree of the lower court in favor of the plaintiff [***33]  was affirmed.  Judge Alvey, for the Court, found that the most material question was whether the covenant created an equitable charge or lien.  He said:
"It is objected that the covenant creates only a personal obligation on the defendant, and that, consequently, there is no jurisdiction in a Court of Equity to take cognizance of the case.  If this were a mere personal covenant, and nothing more, the objection just stated would certainly be well founded.  But that is not our conclusion as to the nature of the covenant. That the covenant does create a personal obligation on the defendant is doubtless true, and one that could be sued on at law; but it does not necessarily follow from that being so, that there may not be also an equitable lien or charge created at the same time.  The covenant does not, as may be observed, stipulate in express terms that the land shall be sold and the proceeds of sale applied to the discharge of this particular debt.  But we think that is the fair and reasonable implication from the terms employed.  In a case 

 [*307]  like the present, the question whether there has been a charge created depends in a great measure upon the intention of the contracting [***34]  parties; and here we think it manifest, as well from the language of the covenant itself as from  [**178]  the circumstances leading to it and under which it was made, that the parties contemplated the sale of the farm, and the proceeds of sale as the fund from which the debt was to be paid." 40 Md. at 196.

In Union Trust Co. v. Biggs, 153 Md. 50, 60, 137 Atl. 509 (1927), Judge Parke said, for the Court:

"It is an accepted principle of equity that where, as here, the intention to hold and charge a particular interest or estate as security for the payment of a debt or other obligation is clearly manifested in writing, but frustrated simply through some default of form or in procedure, an equitable lien upon such interest or estate is created, which is enforceable against the property in the hands of not only the original promisor, but as against his heirs, executors, administrators, voluntary assigns, and purchasers or encumbrancers with notice."
Barnes v. Alexander, 232 U.S. 117 (1914), involved a contingent fee to lawyers, payable out of the proceeds of the settlement of certain mining suits.  The appellees claimed that, through informal business conversations,  [***35]  it was understood they were to have a lien for their fee upon the fund created.  The Supreme Court affirmed the judgment of the lower court in their favor.  In delivering the opinion of the Court, Mr. Justice Holmes said:

"Obviously the only thing intended or desired was to give the appellees a claim to one-third of the fund received by Barnes if and when he should receive it.  It is true that there was in a sense a res as to which present words of transfer might have been used.  There was a right vested in Barnes unless discharged to try 

 [*308]  to earn a fee contingent upon success.  But in a speculation of this sort the parties naturally turned their eyes toward the future and aimed at the fruits when they should be gained.  They therefore used words of contract rather than of conveyance; but the important thing is not whether they used the present or the future tense but the scope of the contract.  In this case it aimed only at the fund.  Barnes gave no general promise of reward; he did not even give a promise qualified and measured by success to pay anything out of his own property, referring to the fund simply as the means that would enable him to do it.  See [***36]  National City Bank v. Hotchkiss, 231 U.S. 50, 57. He promised only that if, when and as soon as he should receive an identified fund one-third of it should go to the appellees.  But he promised that.  At the latest, the moment the fund was received the contract attached to it as if made at that moment *** And it is one of the familiar rules of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing." 232 U.S. at 121.
In this case, the agreement between the Employer and Keyworth does not specifically provide for a lien but provides that Keyworth is to repay the Employer the total sums advanced by the Employer on the successful conclusion of the third-party action.  In such event, Keyworth authorizes his attorney, Plimack, to issue a check to the Employer for the exact amount so advanced by the Employer.  The preamble to the covenants of the agreement contains a recital that Keyworth is receiving the sum of $ 40 a week from the Employer's Workmen's Compensation carrier, "which sum shall remain the sole property of the employee except for any subrogation rights that the insurance [***37]  carrier may have."
In our opinion, despite the lack of any express provision creating an equitable  [**179]  lien, it is apparent from all the circumstances, as well as the language of the agreement, that the parties intended that, if Keyworth was successful in his third-party action, 

 [*309]  the Employer was to have an equitable lien against the proceeds for the repayment of the sums which it had advanced, and that the agreement in effect assigned any proceeds of the action as security for the repayment of the advances.  The reference to the $ 40 a week which Keyworth was receiving from the insurance carrier refers to any subrogation rights that the carrier might have; that reference is consistent with and indicates rights in the distribution of a fund.  More significant, however, is the authorization by Keyworth to Plimack to issue a check to the Employer for the exact amount advanced by the Employer.  As has been observed in the preceding portions of this opinion, Plimack was, at least originally, the Employer's attorney and was employed by Keyworth at the Employer's insistence. It was Plimack who prepared the agreement between the Employer and Keyworth.  In the light of [***38]  these facts, the authorization to Plimack to issue his check to the Employer for the repayment of the advances upon the successful conclusion of the third-party litigation, is, in our opinion, a clear indication that the parties to the agreement looked to the creation of a fund consisting of the proceeds of the verdict or settlement resulting from the third-party action; and that Plimack was to receive the proceeds and was to use them, in part, for the repayment of the advances made by the Employer.  There was, in effect, not only a conditional promise by Keyworth to repay the Employer and to transfer property in payment of his debt but an implied contract to assign the fund resulting from the successful prosecution of his third-party action as security for his indebtedness.  We think the agreement between the Employer and Keyworth, construed in the light of the facts and circumstances, meant that the source of the monies to be refunded would be the monies actually paid by the third-party defendants, Brown and Fleet Transfer Company, and that these monies were to be held as security for the repayment.
In view of the lien which we have found the Employer was given under the agreement,  [***39]  the lower court acted properly in permitting the Employer's intervention in the pending litigation.  Maryland Rule 208; Miller, Equity Procedure §  80.  Intervention under similar circumstances was approved in Wingert 

 [*310]  v. Gordon, 66 Md. 106, 6 Atl. 581 (1886). In that case, we said:
"His claim is based upon the ground that he has acquired by express contract, a lien or charge upon the fund, which is enforceable in equity, and if this be true, we see no objection to the mode he has adopted of enforcing it.  We think he has the right to come in by petition and should not be driven to an original bill * * *" 66 Md. at 109.

See also Barnes v. Alexander, supra.
It is true that Judge Harris, in his decree and order, merely provided for the retention of the $ 7200 pending the outcome of the litigation with respect to the alleged indebtedness pending in the Baltimore City Court.  Under Maryland Rule 517, the practice theretofore existing of transferring issues of fact arising in an action in equity to a court of law for an advisory verdict by a jury was abolished.  However, it is apparent from the records and the briefs that both parties to the lawsuit wished [***40]  the law court, rather than the equity court, to determine their rights.  The Employer filed the lawsuit and asked for a summary judgment, and Keyworth made it clear in the proceedings below that he wished his rights determined by a jury.  In view of this implicit consent of the parties, Judge Harris committed no error in providing merely for the retention of the $ 7200 in the equity proceedings until the final determination of the lawsuit. We, therefore, affirm the decree passed below on October 9, 1964 and so much of  [**180]  the order passed on October 14th as reaffirms the retention of the $ 7200 in the fund.
In the preceding portions of this opinion, we have affirmed the finding of the court below that Plimack and Israelson were entitled to payment of legal fees out of the fund, but, for the reasons stated, have found that the amount of those fees is subject to further determination.  Accordingly, pursuant to Maryland Rules 871 a. and 872, as it appears to this Court that the substantial merits of this portion of the case will not be determined by affirming, reversing or modifying the order, and that the purposes of justice will be advanced by permitting further proceedings [***41]  in the cause with the introduction of additional 

 [*311]  evidence, we remand the case for such further proceedings.
Decree of October 9, 1964 affirmed and so much of order of court of October 14, 1964 as re-enacts the said decree affirmed; remaining issues of case remanded without affirmance or reversal for further proceedings consistent with the views expressed in this opinion; one-half the costs to be paid by appellant, Keyworth, and the other one-half to be paid by appellees Plimack and Israelson.  

16 of 138 DOCUMENTS 

COMPTROLLER OF THE TREASURY, STATE OF MARYLAND v. AMERICAN CYANAMID CO., et al.  

No. 436, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 491; 214 A.2d 596; 1965 Md. LEXIS 468 

October 26, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Dissenting Opinion Filed December 1, 1965.  

PRIOR HISTORY:
Appeal from the Baltimore City Court; Sodaro, J.  

DISPOSITION:
Orders of the Baltimore City Court appealed from reversed, with costs, and orders of the Comptroller denying refunds to the appellees reinstated.  

HEADNOTES:

Taxation -- Property Excluded From Taxation Under Sec. 324 (f) Of Art. 81 Of The Code -- Does Not Include Property "Used Up" In The Manufacturing Process.  In the instant taxation case the appellee, a manufacturer of adhesives, sought to have excluded from taxation aluminum purchased for the testing of batches of adhesives because the aluminum was "used up" in the testing process in that it became unusable for anything but scrap.  Sec. 324 (f) of Art. 81 of the Code excludes from tax only property bought for the purpose of resale in the same form or with intent "*** to use or incorporate the property * * *, as a material or part, of other tangible personal property to be produced for sale * * *." The Court felt that this language clearly meant that the property bought for resale had to remain unchanged or become an ingredient or part of another article in order to be excluded from tax.  And that the words "to use" did [***2]  not mean a "using up" of the property purchased as a part of the process of producing other tangible personal property. So that Sec. 324 (f) did not mean that property was excluded from the sales tax if it "enters into the processing of" an article being manufactured, but that said section means that to be excluded, the property must become "an ingredient or component part of the product." Therefore, it was held that the contention of the appellees that Sec. 324 (f) included property which was "used up" was untenable and that the aluminum was subject to taxation.
Taxation -- Property Excluded From Taxation -- Property "Consumed" In The Manufacturing Process Not Excluded Under Comptroller's Rule 63 -- Rule 63 Unlawfully Extended The Exclusions From Taxation Provided By Sec. 324 (f) Of Art. 81 Of The Code And Was Held Invalid.  In the instant taxation case the appellee, a manufacturer of adhesives, sought to have excluded from taxation aluminum which was purchased for the testing of batches of adhesives and rendered completely unusable as a result thereof on the theory that the aluminum was "consumed" in the process of the manufacturing operation and was therefore non-taxable [***3]  under the explicit specifics of Rule 63.  However, it was held that Rule 63 adopted by the Comptroller of the Treasury, which in purported effect amended Sec. 259 (f) (now Sec. 324 (f)) of Art. 81 of the Code, unlawfully extended the exclusions from taxation provided by Sec. 324 (f) (to include property "consumed" in the manufacturing process) and went beyond the power given the Comptroller to carry out the legislative directions in the sales tax act and to define terms and was invalid.  The Comptroller cannot by rule or otherwise make taxable that which the Legislature has excluded from taxation and cannot exclude or exempt that which the law says is taxable.  Further, the Court pointed out that the Legislature clearly expressed its intent in Sec. 324 (f), and since there was no ambiguity or uncertainty in the statute, there was no need to look beyond its words to find its meaning.  Therefore, the promulgation and continued existence of the Comptroller's Rule 63 was not controlling here.  "But no practice, however generally, or however long, it may have prevailed, can override the clear and manifest meaning of a statute." 

SYLLABUS:

Petition to the Comptroller of the Treasury of the [***4]  State of Maryland for a refund of sales taxes paid by Bloomingdale Rubber Company and the American Cyanamid Co.  The Comptroller denied the refunds.  From an order of the Baltimore City Court reversing the decision of the Comptroller, the Comptroller appeals.  

COUNSEL:
Robert J. Martineau, Assistant Attorney General, and Edward F. Engelbert, Chief, Retail Sales Tax Division, with whom was Thomas B. Finan, Attorney General, on the brief, for appellant.
Morris Rosenberg and Stephen H. Sachs, with whom were Tydings & Rosenberg on the brief, for appellees.  

JUDGES:
Prescott, C. J., and Hammond, Marbury, Oppenheimer and Barnes, JJ.  Hammond, J., delivered the majority opinion of the Court.  Barnes, J., dissents.  Dissenting opinion at p. 508, infra.  

OPINIONBY:
HAMMOND 

OPINION:

 [*493]   [**597]  If those who will have occasion to refer to this decision knew the background of the case, factual and legal, the text of this judicial sermon to the Comptroller and our holding could happily be no more than the words of Judge Offutt, for the Court, in Horton v. Horton, 157 Md. 127, 133: "But no practice, however generally, or however long, it may have prevailed, can override [***5]  the clear and manifest meaning of a statute."
Unfortunately for us (the Court which must prepare it) and for the lawyers and their clients who must from time to time hereafter read it, some reference will have to be made to the facts, the applicable sales and use tax statutes and the rules of the Comptroller purporting to interpret those statutes.
Bloomingdale Rubber Company makes adhesives which bind together the leading edges of the wings, tail surfaces, door panels and floor panels of both commercial and military aircraft.  By reason of the specifications of the purchasers, Bloomingdale must make two tests of the binding qualities of each batch of several hundred gallons of the adhesive. In one test a panel of aluminum honeycomb core three inches wide, nine inches long by five-eighths of an inch thick, is sandwiched between two skins of aluminum sheeting of the same length and width, one being glued to each face of the honeycomb core.  In the other test two of the pieces of aluminum sheeting are stuck to each other by adhesive from the batch being tested.  As a part of both tests, each resulting panel is subjected to temperatures of over three hundred degrees Fahrenheit and to [***6]  pressures of over twenty-five pounds per square inch and then placed in a testing machine which exerts force sufficient to pull 

 [*494]  the panel apart and records the amount of force used.  The honeycomb cores cost five dollars and a quarter a pound and the sheets fifty-five and a half cents a pound.  After serving in the tests, both the cores and the sheets are sold for scrap, both of these forms of aluminum having been rendered unusable by mechanical stresses which twist, stretch, bend and crumple them and by the contamination of their surfaces resulting from the coatings of adhesive which cannot practicably be removed.
Code (1957), Art. 81, Sec. 325 (enacted with different rates as Sec. 260 of Art. 81 of the Code by Ch. 281 of the Laws of 1947), imposes a tax on every retail sale of tangible personal property, as defined.  The tax has been held to be an excise on the privilege of selling specified personal property at retail, to be collected by the vendor although paid by that purchaser who is the ultimate consumer, Lane Constr. Corp. v. Comptroller, 228 Md. 90, so as to avoid a pyramiding of the tax on the intermediate purchaser or purchasers. Comptroller v.  [**598]   [***7]  Aerial Products, Inc., 210 Md. 627.
These designs of the statute which the cases have declared are revealed throughout the Retail Sales Tax Act (the sales tax act), codified in Art. 81 of the Code.  "Selling" is defined in Sec. 324 (d) as any transaction whereby title or possession, or both, of tangible personal property is, or is to be, transferred by any means whatever for a consideration.  The body, or first paragraph, of Sec. 324 (f) (in language which has remained unchanged since its enactment as part of then Sec. 259 of Art. 81 of the Code by Ch. 281 of the Laws of 1947), defines "retail sale" and "sale at retail" to mean:

"*** all sales of tangible personal property to any person for any purpose other than those in which the purpose of the purchaser is to resell the property so transferred in the form in which the same is, or is to be received by him, or to use or incorporate the property so transferred, as a material or part, of other tangible personal property to be produced for sale by manufacturing, assembling, processing or refining."
The purchaser whose purpose is to resell the property he buys in unchanged form or as a part or component of another 

 [*495]   [***8]  thing he will produce is not required to pay the tax since he is not the ultimate consumer, but, rather, the tax must be paid by the final purchaser of the unchanged article or of the manufactured, assembled, processed or refined thing.  Comptroller v. Fairchild Engine and Airplane Corp., 227 Md. 252.
Between the passage of the sales tax act and its effective date of July 1, 1947, the Comptroller promulgated a number of rules under the authority of then Sec. 301 (a) (now Sec. 365 (a)), authorizing him "to make, adopt and amend such rules and regulations as he shall deem necessary to carry out the provisions of this subtitle and to define any terms used herein." One was Rule 63 purporting to interpret then Sec. 259 (f), the rule reading (as it has continued to do) as follows:
"The clause, 'or to use or incorporate the property so transferred, as a material or part, of other tangible personal property to be produced for sale by manufacturing, assembling, processing or refining,' as used in Sec. 259 (f) [324 (f)] shall be deemed to include all tangible personal property which is consumed in such operations.
"Tangible personal property shall be considered to be consumed in such [***9]  operations if that property is materially changed in form and character, or consistency by reason of its use.  Tangible personal property shall not be considered to be consumed in such operations if its value as property is ordinarily dissipated through the gradual wear or tear incident to its use.  For example, the sale of coal for use in manufacturing, assembling, processing or refining is not taxable.  Machinery and small tools for use in manufacturing, assembling, processing or refining are taxable."
We were told at the argument by the representative of the Comptroller, who was the representative of the Comptroller's office in 1947, that during the passage of the act through the regular Legislature of 1947, a passage which was brought about only after determined and unrelenting administrative pressures had overcome bitter and sustained resistance, the 

 [*496]  Legislative agents of those who sold fuels other than coal used in producing tangible personal property for sale had persuaded the Legislature to amend the bill to provide in then Sec. 259 (f) (4) that the term "sale at retail" should include: "The sale of natural or artificial gas, oil, electricity or steam, when [***10]  made to any purchaser for purposes other than resale or for use in manufacturing, assembling, processing or refining," and that the producers and sellers of coal were  [**599]  disturbed and irritated because that fuel was not similarly excluded from taxability.  After passage of the sales tax act, the administrative officials discovered that there was a possible, indeed in their view, a very probable infirmity in the title of the act under the holding of this Court in Buck Glass Co. v. Gordy, 170 Md. 685, which under judicial attack might eliminate the tax on sales other than conventional retail sales of small amounts.  The consequence would be that wholesale sales as commonly understood would be excluded from taxability and so deprive the State of a large part of the revenues it had been expected the act would produce.  To forestall attack on the act by the producers and vendors of coal, the Comptroller adopted Rule 63 which in purported effect amended then Sec. 259 (f) so as to add coal to other power or heat producing items used in the process of producing goods for sale.
Offered in evidence was a bulletin or notice of the Comptroller which was prepared in July 1947 and [***11]  immediately sent to all persons, firms and corporations holding a sales or use tax license as required by the sales tax act and the complementary Maryland Use Tax Act (use tax act).  It said in part:
"1. A Resale Certificate should be issued on the property being purchased if purchased for resale 'as is', or for resale as a part or material of a product produced for sale by manufacturing, processing, assembling or refining.
"The Comptroller has extended 'materials which are purchased for incorporation into a product produced for resale' to include such materials as are consumed in producing for resale products by manufacturing, assembling, processing or refining. Property shall be 

 [*497]  considered to be consumed in such operation if that property has materially changed in form and character or consistency by reason of its use.  Property shall not be considered to be consumed in such operations if its value as property is ordinarily dissipated through the gradual wear or tear incident to its use.
"The above rule means that you may issue a Resale Certificate for property which is consumed. For example, coal that is used in manufacturing, assembling, processing or refining,  [***12]  since after coal is burned it no longer exists as coal, but has been changed in form and character.  However, machinery and tools and other items used in manufacturing are taxable, since they are not consumed within the definition of the rule, but even after they have been worn out still retain their original form and character and their consistency.  A worn out tool is still a tool." (Emphasis added.)
To cure the dangers inherent in an infirm title and to give equality of treatment to coal, the Legislature was called into session on November 5, 1947, and passed Ch. 2 of the Laws of the Special Session of that year, repealing and reenacting subsection (f) of Sec. 259 of Article 81 of the Code, as said subsection was enacted by Ch. 281 of the Acts of 1947 (under a title that left no doubt that the terms "retail sale" and "sale at retail" included the sale of tangible personal property or service, as defined, in any quantity or quantities) to provide, among other things, in a new Sec. 259 (f) (4) that not only gas, oil, electricity or steam but also coal were not to be taxable if used in the process of producing goods.
Against this background Bloomingdale and American Cyanamid Co.,  [***13]  which bought the assets and assumed the liabilities of Bloomingdale as of May 17, 1963, say that the tax of $ 1,348.50 on aluminum purchased for the testing of batches of adhesive between July 1, 1956 and December 31, 1961, which Bloomingdale paid upon being assessed therefor, and the similar tax in the amount of $ 970.84 for the period from January 1, 1962 to April 11, 1963, which  [**600]  American paid upon an assessment against Bloomingdale made on June 13, 1963, were not due and should 

 [*498]  be refunded.  Their first argument is that while concededly Bloomingdale did not "incorporate" the aluminum as a "material or part" of the adhesive it manufactured, it did "use" the aluminum as a part of or in connection with the manufacturing process because it thus "used up" the aluminum; that if the word "use" is not given the meaning "to use up in the process of producing goods for sale," it is the equivalent of "incorporate" and surplusage, and this construction is not to be presumed; and must be avoided if possible and, therefore, the section is at least ambiguous and should be construed in favor of the taxpayer and against the State since the sales are exclusions from the scope [***14]  of the taxing statute and not exemptions under Baltimore Foundry and Mach. Corp. v. Comptroller, 211 Md. 316, 319-320, and Fair Lanes, Inc. v. Comptroller, 239 Md. 157. The second argument of the taxpayers is that the aluminum is consumed in the process of the manufacturing operation and is therefore non-taxable under the explicit specifics of Rule 63.
The Comptroller denied the refund for the period from 1956 to 1961 on the ground that the aluminum did not become a part of the adhesive as Sec. 324 (f) requires if it is to be non-taxable, and was not consumed under Rule 63 since it was not changed in form, character or consistency.  He denied the refund for the period from January 1, 1962 to April 11, 1963 because no protest against the assessment was made within thirty days, as required by law.
Judge Sodaro agreed in essence with the taxpayer both as to the construction of the statute and the applicability of Rule 63, finding it unnecessary to pass on the timeliness of the protest, and ordered a refund for both periods.
We think (a) the statute is plain, clear and unambiguous and means that unless a purchase is made for the purpose of resale in unchanged form or as a part [***15]  or component of other tangible personal property to be produced for sale, it is taxable; (b) the aluminum is consumed by its use in testing the adhesive and its purchase would not give rise to taxation if Rule 63 were a valid interpretation of the statutes; and (c) Rule 63 unlawfully extended the exclusions from taxation provided by Sec. 324 (f) and goes beyond the power given the Comptroller 

 [*499]  to carry out the legislative directions in the sales tax act and to define terms and is invalid.
Sec. 324 (f) excludes from tax only property bought for the purpose of resale in the same form or with intent "*** to use or incorporate the property * * *, as a material or part, of other tangible personal property to be produced for sale * * *." In Armco Steel Corp. v. State Tax Comm'n, 221 Md. 33, 43-44, we interpreted the words "for processing or refining purposes" and recognized the rule of statutory construction that where two or more words are grouped together, and ordinarily have a similar meaning but are not equally comprehensive, the general word is limited and qualified by the special word -- so that under this rule "processing" would be a synonym of "refining" -- but [***16]  we held the governing rule of statutory construction there to be that "*** before words can be regarded as surplusage it must be clear that the enacting body could not possibly have intended the words to be in the legislation." In the case before us it is obvious that under either test the Legislature specified that the property bought for resale had to remain unchanged or become an ingredient or part of another article in order to be excluded from tax.  If "incorporate" limits and qualifies "use," there must be a uniting or blending together of an article bought to aid in producing another article for sale, or an absorption of the first by the second.  This concept of "incorporate" would remain if the words "use" and "incorporate" are read as having been intended to have similar but different meanings, but " [**601]  use" would vary from the ordinary connotation of "incorporate" and mean a utilization of, a making use of, or an employment for the purpose of using the article purchased as a material or part of the product being made for sale.  For example, the ingredients used to make the adhesive in this case would ordinarily and customarily be considered as incorporated into [***17]  the final product.  On the other hand, if paint were applied to cover the whole or part of an article being produced, it would be apt and perceptive to say that the paint was used as a material of the finished product, not that it was incorporated into that product.  If one were describing, in the words of Sec. 324 (f) what the purpose was of a maker of automobiles, lawn mowers, wheelbarrows, or outdoor 

 [*500]  grills in buying from a parts manufacturer wheels to be attached to his product, it would be customary and natural to say that he intended to use the wheels as parts of his vehicles or appliances, not that he was incorporating them.  This reading of the words "use" and "incorporate," as employed in Sec. 324 (f), is in accord with dictionary definitions of the words.  Funk and Wagnalls Standard Dictionary of the English Language defines "incorporate" to mean "to combine together *** so as to form one harmonious or consistent whole." It defines "use" to mean, as a first meaning, "to employ for the accomplishment of a purpose -- turn to account -- make use of." The Oxford Dictionary says "incorporate" means "to combine or unite into one body or uniform substance; to mix or [***18]  blend thoroughly together * * *." It defines "use" as meaning "to employ or make use of (an article, etc.), esp. for a profitable end or purpose; to utilize, turn to account." An illustration of this definition is "In the manufacture of surgeons' instruments * * *, the very best steel *** should be exclusively used."
We think the plain and manifest meaning of the initial paragraph of Sec. 324 (f) leaves no room for a holding that the words "*** to use * * *, as a material or part, of other tangible personal property * * *" mean a using up of the property purchased as a part of the process of producing other tangible personal property, or as having any meaning other than that spelled out in the statute.
Our conclusion is fortified by other provisions of the sales tax act and the complementary use tax act.  Sec. 324 (f) (3) provides that a "sale at retail" shall include "the sale of tangible personal property to contractors, builders or landowners for use or resale in the form of real estate," thus defining the final utilizer of the tangible personal property as such as its ultimate consumer and, so, liable for the sales tax. Sec. 326 (a) exempts from sales taxes sales to the [***19]  State of Maryland or to any of its political subdivisions.  The Comptroller's Rule 70 provided in part that contractors who are performing jobs for the State or any of its political subdivisions on a lump-sum basis "*** are not required to pay the tax on materials and supplies which will be incorporated into the job * * *.  The contractor must pay the tax on all equipment which he purchases even though 

 [*501]  it may be used on a job for one of the aforementioned persons." A circular letter of the Comptroller advised interested persons that those performing lump-sum contracts with the State or a subdivision "may purchase tax free the materials which will actually be incorporated into and remain a part of the completed job.  The tax must be paid on all materials, supplies and equipment which are not incorporated and do not remain as a part of the completed job, for example: form lumber, dynamite, rubber boots and other clothing, tools and equipment, etc." Comptroller v. Joseph F. Hughes Co., 209 Md. 141, 144. Following John McShain, Inc. v. Comptroller, 202 Md. 68, it was held in Hughes that Rule 70 was valid on the point -- since an exempt person became the owner [***20]  of the real estate into which the personal property went and would have paid no tax had it bought the personal property  [**602]  itself, and that Hughes, under a lump-sum contract with the City of Baltimore, must pay the tax on form lumber for concrete, nails and hardware used in the form lumber, muriatic acid for cleaning bricks, fuel for temporary heating (all claimed to be destroyed by their use), and photographs of the building's progress, and special bits for tools.  Rule 63 was urged on the Court by Hughes to support its claim that personal property consumed in the process of production of things for sale were excluded from tax.  We said: "We find it unnecessary to pass on the validity of this Rule." Hughes, supra, at 148.
When the use tax was enacted at the regular session of the Legislature in 1947, after the sales tax became law, then Sec. 310 (f) of the use tax act exempted from tax, among other things, tangible personal property not readily obtainable in Maryland which was used in the State by one manufacturing "*** any article, substance or commodity, if such tangible personal property enters into the processing of or becomes an ingredient or component part of [***21]  the product *** which is manufactured, compounded or furnished * * *."
In Compt. of Treasury v. Crofton Co., 198 Md. 398, 404, Judge Markell, for the Court, said:

"*** section 310 (f), however narrowly construed, would not be a mere duplication of section 308 (d) 

 [*502]  (2) and (e) (2) [of the use tax act] n1 since the latter are applicable only to incorporation of personal property 'as a material or part of other tangible personal property to be produced for sale by manufacturing', whereas section 310 (f) is applicable if the personal property 'enters into the processing of or becomes an ingredient or component part of the product'.  On the other hand, whether broadly or narrowly construed, section 310 (f) does in part duplicate section 308 (d) (2) and (e) (2).  Furthermore, to the extent that section 310 (f) is not a duplication of section 308 (d) (2) and (e) (2), it is an exemption new in the Use Tax Act and without a parallel in the Retail Sales Act [Judge Markell had earlier indicated that Sec. 259 (f) of the sales tax act and Sec. 308 (d) (2) and (e) (2) of the use tax act were essentially identical] and is a departure from the basic purpose  [***22]   of the act to complement the retail sales tax by a compensatory tax." (Emphasis added.)

n1 Sec. 308 (d) (2) (now Sec. 372 (d) (2)) provides that the term "use" "*** shall not include the following: *** The incorporation of tangible personal property as a material or part of other tangible personal property to be produced for sale * * *." Sec. 308 (e) (2) (now Sec. 372 (e) (2)) provides that the term "storage" "*** shall not include the following: *** The keeping *** in this State of tangible personal property for the purpose of incorporating said property as a material or part of other tangible personal property to be produced for sale * * *."

This passage is a clear statement by this Court in 1951, four years after the passage of the sales and use tax acts, that then Sec. 259 (f) of the sales tax act (now Sec. 324 (f)) did not mean that property was excluded from the sales tax if it "enters into the processing of" an article being manufactured, but that said section means that to be excluded,  [***23]  the property must become "an ingredient or component part of the product." This makes untenable the contention of the appellees as to the meaning of Sec. 324 (f) which was adopted by Judge Sodaro.  Further, in Baltimore Foundry & Mach. Corp. v. Comptroller, 211 Md. 316, 319, this Court referred to the exclusion in Sec. 324 

 [*503]  (f) (then 320 (f)) as applying to property purchased "*** for the purpose of incorporation into a finished product * * *." See also Comptroller v. Fairchild, supra, where Judge Henderson, for the Court, held that personal property  [**603]  bought by Fairchild which became a part of missiles sold to the Government for testing was not subject to sales or use tax. He referred to Code (1957), Art. 81, Sec. 372 (d) (2) (former Sec. 308 (d) (2)) of the use tax act (in which "use" is defined as not including property held for "the incorporation of tangible personal property as a material or part of other tangible personal property to be produced for sale * * *") and Sec. 324 (f) (former Sec. 259 (f)) of the sales tax act, and said of Sec. 372 (d) (2): "Almost identical language is used in Code (1957), Art. 81, sec. 324 (f) in regard to sales at [***24]  retail, and we shall treat the two together.  The taxes are, of course, complementary."
The use tax act of the District of Columbia contains the identical language found in Sec. 324 (f).  In Briggs & Co. v. District of Columbia, 196 F. 2d 241, 243, the Court of Appeals for the District of Columbia held that cellulose casings used and consumed in the manufacture of frankfurters for sale were taxable to the manufacturer. The Court said:

"Much could be said in favor of exempting from the coverage of the statute property used in the sense of being consumed in the manufacturing process where, as here, the value of the casing so used is represented in some part at least in the finished product * * *.  See Western Cartridge Co. v. Smith, 2 Cir. 1941, 121 F. 2d 593. But the statutory language does not, as in the cited case, exempt an article used 'as material in the manufacture of' another article, but only one used as a 'material or part of' the other or incorporated in it."
To the argument that Congress had adopted the Maryland statute verbatim for the District of Columbia and therefore Rule 63 controlled the meaning of the District counterpart of Sec. 324 (f), the Court [***25]  took the view that for this to be so the construction of the adopted statute must have been by the highest 

 [*504]  judicial authority of the originally enacting state and said: "But at least in the absence of a more settled interpretation, or one of high state judicial authority, we are free to apply the District statute differently."
It is apparent that when the Maryland Legislature desired that personal property consumed in the making of other personal property should be excluded from the coverage of the sales or use tax, it stated its desire so clearly that there could be no doubt of its intent.  Not only did it do so in then Sec. 310 (f) of the use tax act ("*** if such tangible personal property enters into the processing of or becomes an ingredient or component part of the product * * *"), construed in Crofton, but it also did so in Sec. 259 (f) of the sales tax act as first enacted, now as Sec. 324 (f), the critical statute in the case.  In Sec. 259 (f) (4) it made taxable "the sale of natural or artificial gas, oil, electricity, or steam, when made to any purchaser for purposes other than resale or for use in manufacturing, assembling, processing or refining." [***26]  (Emphasis added.) It is highly significant that when the attention of the Legislature was directed to the problem caused by the statute's failure to exclude coal from taxation and the Comptroller's attempt to extend the statute by rule to so exclude coal, the Legislature did not, at the Special Session of 1947 or thereafter, change the language of exclusion in the first paragraph of then Sec. 259 (f) -- "*** to use or incorporate * * *, as a material or part," of a product made to be sold to conform to the comptroller's extension of the language's meaning.  Rather, the lawmakers added coal to the list of items excluded from tax by subparagraph (4) of Sec. 259 (f) if such items were purchased "*** for use in manufacturing * * *."
There remain the questions of the effect of administrative interpretation of Sec. 324 (f) and of possible legislative acquiescence in that interpretation.  It is well settled by many cases that where the language of a statute is ambiguous and uncertain a contemporaneous construction which has been  [**604]  consistent and unchallenged, although it is not controlling, may be resorted to as an aid in determining the legislative intent and will not be overturned [***27]  except for cogent reasons, particularly 

 [*505]  where there have been subsequent legislative reenactments without change of the language construed. n2

n2 Dvorine v. Castelberg Jewelry Corp., 170 Md. 661, 675; Wells v. Price, 183 Md. 443, 457; Smith v. Higinbothom, 187 Md. 115, 132-33; Bosley v. Dorsey, 191 Md. 229, 239; Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 615; Comptroller v. Joseph F. Hughes Co., 209 Md. 141, 145; Kimball-Tyler Co. v. Mayor & C. C. of Baltimore City, 214 Md. 86, 99; Liss v. Goodman, 224 Md. 173, 179.

We think these propositions do not control the decision here.  In our view the purpose of the Legislature in enacting the critical language of Sec. 324 (f) is evident and the expression of its intent clear and manifest.  Since we find no ambiguity or uncertainty in the statute, there is no need to look beyond its words to find its meaning.  We do not regard the promulgation and continued existence of the Comptroller's Rule 63 as a consistent and unchallenged administrative [***28]  interpretation and practice because the Legislature at the Special Session of 1947 did not indicate agreement with the Comptroller's position that coal, the raison d'etre of Rule 63, was excluded by the language of the body of then Sec. 259 (f) changing the language of the body of that section to read that property consumed by its use in the process of making another tangible product is excluded from taxation, but, rather, amended the law to put coal in the special category of gas, oil, electricity and steam (which were originally excluded from tax by Sec. 259 (f) (4)) if purchased "for use in manufacturing," and so forth.
The Comptroller's Rule 63, according to the bulletin which was issued to explain it, did not purport only to carry out the sales tax act or to define the terms used therein but to "extend" the meaning and effect of the legislative provisions, and so to exclude from taxation something the Legislature had subjected to tax.  There can be no challenge to the proposition that the Comptroller cannot by rule or otherwise make taxable that which the Legislature has excluded or exempted from taxation and cannot exclude or exempt that which the law says is taxable.  [***29]  
The administrative interpretation of Sec. 324 (f) made by Rule 63 has not been the interpretation given to that section by this 

 [*506]  Court.  In Crofton we said in 1951 (without referring to the Rule in terms) that Sec. 259 (f) did not mean what Rule 63 said it meant by extension of the legislative meaning and, subsequently, similarly indicated the same view in Aerial Products and Fairchild.
We conclude that the controlling rule of law which must be applied here is that expressed in the quotation from Horton, with which this opinion began.  It was paraphrased at greater length and applied in imposing an inheritance tax in Bouse v. Hutzler, 180 Md. 682, 687, as follows:

"Nevertheless, even if there had been an unvarying practice, the Court of Appeals would not sanction a method of calculation which would tolerate an evasion of taxes payable to the treasury of the State.  It is quite true that where the language of a statute is ambiguous and susceptible of two reasonable constructions, a long and unvarying administrative practice has a very persuasive influence, if not an entirely controlling effect, upon the judicial construction of the statute.  But [***30]  the rule of contemporaneous construction does not preclude an inquiry by the courts into the correctness of such a construction.  Where the language is clear and explicit, and susceptible of a  [**605]  sensible construction, it cannot be controlled by extraneous considerations.  No custom, however long and generally it has been followed by officials, can nullify the plain meaning and purpose of a statute.  An administrative practice contrary to the plain language of a statute is a violation of the law; and a violation of the law, even though customary, does not repeal the law."
In Rogan v. Baltimore & O. R. R., 188 Md. 44, 58, in upholding a method of computation of tax contrary to the unvarying practice for sixty years, this Court said:

"No custom, however venerable, can nullify the plain meaning and purpose of a statute.  *** In spite of an unvarying administrative practice, the Court should not sanction a method of computation which tolerates 

 [*507]  an evasion [or avoidance] of taxes.  Any alleged failure of taxing officials in previous years to assess the gross receipts accurately cannot abolish the duty imposed by law upon their successors, or control [***31]  the judicial construction of the statute."
Judge Prescott, for the Court, cited Rogan in Stembler and Ford, Inc. v. Capitol Heights, 221 Md. 113, 117, and said: "[I]f the language is plain and free from ambiguity and has a definite and sensible meaning, such is conclusively presumed to be the meaning of the legislative body in enacting the statute or ordinance." County Treasurer v. State Tax Comm'n, 219 Md. 652, 657, held that a custom of thirty years standing could not control the statute to the contrary since there was no ambiguity in the law.  "Administrative construction is called into play only when two reasonable interpretations of the act to be construed are possible.  'But where the language is plain and unambiguous, the judicial construction cannot be controlled by extraneous considerations.'"
In several sales or use tax cases we have applied the principle of these cases and have held rules or parts of rules of the Comptroller as to sales or use taxes to be invalid because they varied the law.  Part of Rule 61 was invalidated in Comptroller v. M. E. Rockhill, Inc., 205 Md. 226, 234-35. In Comptroller v. Pittsburg-Des Moines Steel Co., 231 Md.  [***32]  132, 136, Judge Prescott for the Court said of that part of Rule 70 which discriminated against the federal government in favor of the government of the State and its subdivisions: "The Comptroller has no power or authority to create an exemption by Rule.  Rule 70 derives whatever force it has from the fact that it is a correct interpretation of the statutes promulgated by the Legislature" and held that the second paragraph of Rule 70 was null and void insofar as it purported to tax contractors under lump-sum contracts with the federal government.  Cf. Steiner Constr. Co. v. Compt. of Treas., 209 Md. 453, 469, where Chief Judge Brune for the Court said:
"If the provisions of Rule 53 relating to Class (d) contracts therein described would produce in this case a result at variance with the views above expressed, 

 [*508]  they would, we think, go beyond the permissible limits of administrative interpretation, since they would, on the facts of this case, nullify the applicable statutory definition of the term 'sale at retail' and would grant an exemption where the statutes grant none."
The claims of the appellees to refunds must be denied because of the clear and manifest [***33]  purpose and meaning of Sec. 324 (f).
Orders of the Baltimore City Court appealed from reversed, with costs, and orders of the Comptroller denying refunds to the appellees reinstated.  

DISSENTBY:
BARNES 

DISSENT:

 [**606]  Barnes, J., filed the following dissenting opinion.
The majority indicates in its opinion in this case that the text of its "judicial sermon" to the Comptroller is "But no practice, however generally, or however long it may have prevailed, can override the clear and manifest meaning of a statute." In my opinion, if we are still constitutionally permitted to preach a judicial sermon -- even to the Comptroller -- the wrong text was selected and, perhaps the majority has even considered the wrong chapter.  I suggest that the correct text would be:
"*** [I]f there is no clear indication to the contrary and if it is reasonably possible, a statute is to be read so that no word, clause, sentence or phrase shall be rendered surplusage, superfluous, meaningless, or nugatory."
Thomas v. Police Commissioner of Baltimore City, 211 Md. 357, 361, 127 A. 2d 625, 627 (1956).
It appears to me that in construing Sec. 324(f) the majority is in error by failing to give [***34]  effect to the purpose of the definition in Sec. 324(f) which was to avoid the pyramiding of taxes which would result from the taxation of material used up in the manufacturing process of a product, the cost of which necessarily would be included in the amount of the taxable sale of 

 [*509]  the finished product. In this regard the Maryland definition is in accord with a similar purpose in the tax laws of other states.  See the helpful annotation at 157 A.L.R. 804 entitled Construction and application of exemption on deduction provisions of general sales tax act.  At page 820 of this annotation the following is stated:
"In order to prevent the pyramiding of taxes on the same commodity when it is sold in a different form after it is processed or when it is used in the manufacturing of a more or less different character of commodity, the sales tax statutes usually contain a provision, widely varying in form, which in terms or in effect exempts the sale of such commodity from the sales tax in anticipation that the finished product or the new product manufactured from such commodity will, when ultimately sold, share its burden of the tax.  This provision usually [***35]  requires that the commodity to be exempt from the tax must be used in the manufacturing and/or become a component or integral part of the manufactured or processed article." (Emphasis supplied).
The construction adopted by the majority results in a pyramiding of taxation, as the Comptroller collects the sales tax on the aluminum used up in the manufacturing of the adhesive, and the Comptroller then collects the sales tax on the finished product into which the value of the aluminum has wholly gone.  It thus frustrates one of the cardinal canons of statutory construction, i.e., that to determine the intention of the legislature, the Court should consider the object and purpose of the legislation, the ends to be accomplished and the resulting consequences from one meaning rather than another meaning.  As Judge Hammond, for the Court, aptly stated in Tyrie v. Baltimore County, 215 Md. 135, 140, 137 A. 2d 156, 158 (1957):
"In determining the legislative intent we must consider the tests which have been set up to aid proper reading in doubtful cases.  These include not only consideration of the literal or usual meanings of the words used but their meaning and effect considered [***36]  in the 

 [*510]  light of the setting, the purposes of the enactment, the ends to be accomplished, and the consequences that may result from one meaning rather than another."
Is such a frustration of the legislative purpose required by the language of Sec. 324(f)?  I think not.  By using the verb "to use" in the alternative ("or") to the verb "to incorporate," the legislature must have intended it to have some meaning to carry out the legislative purpose.  In recognized  [**607]  and authoritative dictionaries n1 the verb "to use" has the following accepted meanings: "to use up *** to consume or exhaust by using"; "to expend or consume by putting to use"; "to consume, expend or exhaust by use (often with up)"; "to consume or expend by using." On the other hand, "to incorporate" may mean "to unite intimately; to blend," but it may also mean "to assimilate, to combine into a structure or organization"; or "making [something] a part of something else"; or "to combine or join with something already formed; to make part of another thing."

n1 Webster's New 20th Century Dictionary, Unabridged (2nd ed.); Webster's New International Dictionary, Unabridged (2nd ed.); Webster's Third International Dictionary, Unabridged; and The Thorndike-Barnhart Dictionary.

 [***37]  
In my opinion, the indication by the majority of a narrow application of the verb "to use" with the subsequent language of Sec. 324(f) "as a material part, of other tangible personal property to be produced for sale by manufacturing, assembling, processing or refining," as confined to parts placed on an unfinished product or paint applied to the unfinished product, is not persuasive.  These illustrations fit comfortably within the definitions of "to incorporate," and to all intents and purposes this construction by the majority eliminates the verb "to use" from the section.  This runs counter to the well established maxim for the construction of statutes, i.e., that the statute should be construed to give effect, if possible, to every word in it, so that no part of the statute will be superfluous or inoperative.  Thomas v. Police Commissioner of Baltimore City, supra.
In Sec. 324(f) there not only is "no clear indication to the contrary" but, in my opinion, it is most reasonable to give 

 [*511]  effect to the verb "to use" as meaning "to use up," "exhaust," "expend" or "consume."
It is interesting to note that the meaning of the verb "to use" which in my opinion [***38]  is the correct one and the one intended by the General Assembly, is also the one which two of the leading tax services give it.  In Prentice-Hall, in referring to Sec. 324(f) it is stated: "Sales to manufacturers and producers are exempt from tax if the item is to be incorporated into a product to be sold, or if used up in the manufacturing process." (Emphasis supplied). n2 The Commerce Clearing House service gives an even broader interpretation to the definition of a "retail sale." It is stated that: "A 'retail sale' or 'sale at retail' is one in which tangible property is sold *** for purposes other than those of resale or use of property in producing other property by manufacturing, assembling, processing or refining." (Emphasis added). n3 While, of course, the interpretation given tax statutes by well-recognized tax services is not conclusive, it is entitled to weight in considering the problems of construction as it represents an informed and objective viewpoint relied upon not only by members of the bar but by many members of the general public who are interested in the problem.

n2 4 P-H, State and Local Tax Serv. Md. para. 21,170. [***39]  
n3 C.C.H. Maryland Tax Cas. Rep. para. 60-016.

Can it be said under these circumstances that this provision of Sec. 324(f) is not at least ambiguous?  I think this is the least that can be said and the Comptroller, between the passage of the Retail Sales Tax Act and its effective date (July 1, 1947) promulgated Rule 63 to interpret the very language now in question. n4 The provisions of this Regulation are set forth in the majority opinion and need not be repeated here except to note that the very clause now in question "shall be deemed to include all tangible personal property which is consumed in such operations." (Emphasis supplied).   [**608]  This authoritative interpretation of the clause has continued without change 

 [*512]  for some 18 years.  Indeed, the General Assembly amended this very section in the Extraordinary Session of 1947 (Chapter 2, approved and effective as an emergency law on November 10, 1947), several months after the promulgation of Rule 63 and did not change the language in question.  This long continued and unvarying construction applied by the Comptroller [***40]  from the time the statute first became effective is a persuasive one in determining judicial construction.  As Judge Delaplaine, for the Court, stated in Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 615, 95 A. 2d 306, 311 (1953):
"It is true that no custom, however long and generally it has been followed by administrative officials of the State, can nullify the plain meaning and purpose of a statute.  But where the language of a statute is susceptible of two constructions, a long continued and unvarying construction applied by administrative officials is a persuasive influence in determining the judicial construction, and it should not be disregarded except for the strongest and most urgent reasons." (Emphasis supplied).

See also Shapiro v. City of Baltimore, 230 Md. 199, 216, 186 A. 2d 605, 614 (1962).

n4 The Comptroller has the rule-making authority under Sec. 365(a) (then Section 301(a)) of the Retail Sales Tax Act, and this power specifically includes the power "to define any terms used herein."

 [***41]  
Not only do we have unvarying administrative construction by Rule 63 for approximately 18 years, but the General Assembly, although amending the Retail Sales Act in various particulars (including the very section involved in the case at bar as has been noted), did not change this interpretation.  This, in itself, furnishes a strong presumption that the statute has been construed correctly by the administrative authority.  Department of Tidewater Fisheries v. Sollers, supra. See also Comptroller v. Joseph F. Hughes Co., 209 Md. 141, 145, 120 A. 2d 343, 346 (1956); John McShain, Inc. v. Comptroller, 202 Md. 68, 73, 95 A. 2d 473, 474 (1953); Smith v. Higinbothom, 187 Md. 115, 133, 48 A. 2d 754, 763 (1946).
The majority seems to take comfort for its interpretation from the remaining portion of Sec. 324(f) and sections of the Maryland Use Tax, as well as from prior decisions of this Court construing provisions of the Use Tax Act.  In my opinion they can give the majority no comfort.

 [*513]  The remaining portion of Sec. 324(f) seems to me to confirm the construction given by the Comptroller to the important words involved in the case at bar.  Chapter 281 of the Acts [***42]  of 1947 which imposed the original Retail Sales Act, provided in Sec. 259(f) -- now Sec. 324(f) -- as follows:
"(f) 'Retail sale' and 'sale at retail' means all sales of tangible personal property to any person for any purposes other than those in which the purpose of the purchaser is to resell the property so transferred in the form in which the same is, or is to be received by him, or to use or incorporate the property so transferred, as a material or part, of other tangible personal property to be produced for sale by manufacturing, assembling, processing or refining. For the purposes of the tax imposed by this sub-title, the term 'sale at retail' shall include but shall not be limited to the following:
"(1) The sale for consumption on the premises of any meals, food or drink or other tangible personal property for a consideration, at any restaurant, hotel, drug store, club, resort, or other place at which meals, food, drink or other tangible personal property are served to the public.
"(2) Any production, fabrication or printing of tangible personal property on special order for a consideration.
"(3) The sale of building materials to [***43]  contractors, builders or landowners for use or resale in the form of real estate.
" [**609]  (4) The sale of natural or artificial gas, oil, electricity, or steam, when made to any purchaser for purposes other than resale or for use in manufacturing, assembling, processing or refining.
"(5) The sale or charges for any room or rooms, *** etc." (Emphasis supplied).
It is clear, I think, from the very language of this section that the enumeration of gas, oil, electricity or steam other than for use in manufacturing, assembling, processing or refining -- 

 [*514]  all of which are usually consumed or "used up" in the manufacturing or refining process -- is not intended to be a closed or exclusive list.  In other words, "coal," although not enumerated in Sub-section (4), would be included in the definition of "sale at retail," when made for purposes other than for use in manufacturing, etc.  Nuclear power would be in the same position and any other like item.  One need go no further than to observe that this is what the section says specifically.
It will be noted also that when the General Assembly excluded the specific items generally consumed or [***44]  used up in the manufacturing process, it used the language "for use in manufacturing," etc.  As to unspecified items, however, there might be doubt or ambiguity as to whether such items were indeed used in manufacturing in order to be included in the statutory exemption (for example, tools used but not consumed vs. coal which is consumed in the process), which was the very reason the Comptroller interpreted the phrase "to use" in Rule 63 as being deemed "to include all tangible personal property which is consumed in such operations." The example of "coal" is then given -- not as the exclusive operation of Rule 63, which applied to all tangible property so consumed -- but merely as an example, as the Rule states.
The Maryland Use Tax however, came into the Maryland law by an entirely different Act, i.e., Chapter 681 of the Acts of 1947.  While complementary in some respects to the Retail Sales Act, it differs in a number of respects from it.  There are considerations of policy in regard to, and of application of, the Maryland Use Tax which do not apply to the Retail Sales Act which most likely account for their separate sub-titles in Article 81 of the Code, n5 and [***45]  for their amendments, from time to time, by entirely separate Acts of Assembly.  A very important difference between the two Acts is in the definition of "retail sale" or "sale at retail." This definition in the Retail Sales Act leaves out entirely the exclusion beginning with the words "other than those in which the purpose," etc. (the important 

 [*515]  words in the case at bar) and contains three, instead of five specific items.  In the 1947 Act it read as follows:
"308(h) 'Retail sale' and 'Sale at retail' mean all sales of tangible property whether within or without this State to any person for the purpose of use, storage or consumption within this State.  For the purposes of the tax imposed by this sub-title, the term 'sale at retail' shall include but shall not be limited to the following:
"(1) Any production, fabrication or printing of tangible personal property on special order for a consideration.
"(2) The sale of building materials to contractors, builders or landowners for use or resale in the form of real estate.
"(3) The sale of natural or artificial gas, oil, electricity, or steam, when made to any purchaser for purposes other than resale or for use [***46]  in manufacturing, assembling, processing or refining."

n5 Retail Sales Act, Code Art. 81, Secs. 324-371; Maryland Use Tax, Code Art. 81, Secs. 372-401.  They have separate provisions setting forth "definitions" and separate sections providing for "exemptions."

 [**610]  It will thus be seen that the general language of exclusion in Sec. 259(f) of Chapter 281 of the Acts of 1947 does not appear at all in Sec. 308(h) of Chapter 681 of the Acts of 1947.  In other words, the definition in the Retail Sales Act contained a general exclusion followed by a nonexclusive list of particular items, whereas, the definition in the Maryland Use Tax contained no such general exclusion but contained only the specific exclusion mentioned in Sub-paragraph (3).  It is to be assumed that this difference in language was deliberately made.  It would be a reasonable hypothesis to assume that it was made in order to prevent a possible economic discrimination against Maryland manufacturers vis-a-vis out-of-state [***47]  manufacturers. It seems clear that out-of-state manufacturers possibly pay no Maryland use tax on materials purchased by them outside of Maryland and used up or consumed in the manufacture of the product ultimately sold by them for use in Maryland.  The use tax is calculated on the price of the completed product which does not have to compensate the out-of-state producer for any Maryland tax on tangible personal property used up or consumed in 

 [*516]  the manufacturing process. On the other hand, but for the general exclusion in the Retail Sales Act unspecified materials used up or consumed in the manufacturing process would be subject to Maryland Sales Tax and this additional cost would enter into the cost of the product requiring a higher price for the Maryland product than that charged by the out-of-state manufacturer of the identical product.  In other words, the difference in the language of the two Acts was most likely thought necessary for equality of treatment and to make the two Acts truly complementary.  It is not without irony, that the holding by the majority defeats this purpose.
It should be noted also that there is no definition of "use" in the Retail Sales Act,  [***48]  while there is an elaborate definition of "use" in the Maryland Use Tax Act.  (Section 308(d) of Chapter 681 of the Acts of 1947).
I am not impressed with the argument that because the General Assembly at the Special Session of 1947 amended both Acts to include "coal" with the specific items excluded by both Acts, this manifested an intention that the general exclusion did not already include "coal" by virtue of its language and Rule 63.  This specific inclusion was not necessary, but desirable in the Retail Sales Act; n6 it was necessary for exclusion in the Maryland Use Tax Act, as there was no general exclusion which would otherwise apply to coal or any other fuel or substance consumed in the manufacturing process. As has been stated, the failure to amend the language granting the general exclusion with the presumed knowledge of the interpretation of that general language by the Comptroller in Rule 63 is evidence of an adoption or acquiescence of the General Assembly in the Comptroller's interpretation.

n6 The coal users would naturally prefer a specific exclusion written into the statute to a dependence on the Comptroller's Regulation which could be modified or abrogated by the Comptroller much more quickly and much more easily than an amendment of the Retail Sales Act by the General Assembly.

 [***49]  
Then too, it is manifestly reasonable when the sale occurs in Maryland to give the same exclusion to similar items consumed in the manufacturing process as it is to give it to the specifically enumerated items as the cost, in either case, is wholly included 

 [*517]  in the finished product on which the retail sales tax is paid by the ultimate purchaser. This is what the General Assembly intended to accomplish and this was recognized and made plain by Rule 63.
In my opinion, the prior cases of this Court cited by the majority do not support its construction of Sec. 324(f).  None of the cases construes the language of Sec. 324(f) (or its predecessor sections) directly and none purports to make a holding in regard to the particular language involved in the case at bar.
 [**611]  Both Armco Steel Corp. v. State Tax Commission, 221 Md. 33, 155 A. 2d 678 (1958) and John McShain, Inc. v. Comptroller, supra, involved the exemption sections of an Ordinance of the Mayor and City Council of Baltimore No. 643, approved December 5, 1956 or the Retail Sales Act and the Maryland Use Tax, respectively.  There was no consideration in either case of the exclusions in Sec. 324(f).  [***50]  It should be remembered that in construing tax statutes provisions of the law in regard to the scope of the tax are strictly construed in favor of the taxpayer and against the State, while provisions of the law in regard to exemptions are strictly construed in favor of the State and against the taxpayer.  As Judge Marbury stated, for the Court, in Fair Lanes, Inc. v. Comptroller, 239 Md. 157, 162, 210 A. 2d 821, 823 (1965):
"In interpreting tax statutes a court must not extend their provisions by implications beyond the clear import of the language and where there is doubt as to such a statute's scope, it should be construed most strongly in favor of the citizen and against the state." (Emphasis supplied).

In regard to statutory provisions for tax exemptions, Judge Collins, for the Court, stated in Suburban Propane Gas Corp. v. Tawes, 205 Md. 83, 87, 106 A. 2d 119, 121 (1954):
"Of course, tax exemption statutes are to be strictly construed in favor of the State.  The taxing power is never presumed to be surrendered.  Every assertion that it has been relinquished must, to be effective, be distinctly supported by clear and unambiguous legislative [***51]  enactment.  To doubt an exemption is to deny it."

 [*518]  The language important in the case at bar has to do with the scope of the tax and is to be most strongly construed in favor of the taxpayer and against the State.  It is apparent that cases having to do with the construction of statutory provisions providing for tax exemptions are not helpful or authoritative in the case at bar.
In Comptroller v. Joseph F. Hughes & Co., supra, the Court followed McShain, and sustained that portion of Rule 70 of the Comptroller which provided that contractors performing work for non-profit religious, charitable, scientific, literary or educational institutions on a lump-sum basis are not required to pay the tax on materials and supplies incorporated into the job.  Rule 70 did not involve the language being construed in the case at bar.  It was urged on the Court that Rule 63 construing the language "to use or incorporate" to include consumed property was inconsistent with Rule 70.  As the majority points out, the Court stated:
"We find it unnecessary to pass upon the validity of this Rule." (Rule 63).
But the Court continued:
"If we assume, without deciding,  [***52]  that it correctly interprets the statutory language, or that it is at least within the Comptroller's power of definition, it could not avail the appellee here.  It may be noted that the construction turns on the words "to use or incorporate." But in any event, inconsistency in the treatment accorded different classes of taxpayers, whether due to legislative action or administrative interpretation, furnishes no ground for invalidating an interpretation which we find to be sound under the facts of the instant case." (Page 148 of 209 Md.; page 346 of 120 A. 2d).
In Comptroller v. Crofton Co., 198 Md. 398, 84 A. 2d 86 (1951), the Court had before it a claim for refund of $ 182.49 under the Maryland Use Tax for slate which was not readily obtainable in Maryland and exempted under the provision of Sec. 310(f) of the 1951 Code if the tangible personal property "enters into the processing of or becomes an ingredient or component 

 [*519]  part of the product or service which is manufactured, compounded  [**612]  or furnished * * *." The trial court had held that the construction of a house was a "manufactured" product.  The Comptroller appealed.  There was no appearance by the [***53]  appellee.  This Court reversed, holding that the construction of a house was not a product which was manufactured or compounded and hence was not within the scope of the exemption provision of the Maryland Use Tax. The quotation in the majority opinion taken from the Court's opinion in Crofton begins: "As the Attorney General points out," and then follows the rest of the quotation.  The majority has inserted parenthetically in the quotation "Judge Markell had earlier indicated that Sec. 259(f) of the sales tax act and Sec. 309(d) (2) and (3)(2) of the use tax act were essentially identical." My reading of the opinion in Crofton does not disclose this.  Judge Markell, for the Court, does state that:
"An obvious purpose and effect of the use tax is to complement the retail sales tax (Article 81, secs. 259-307, Code, 1947 Supp.; Acts of 1947, ch. 281; 1947 Sp. Session, ch. 2; as subsequently amended) by imposing, in respect of purchases made outside Maryland (and therefore not subject to the sales tax) for use in Maryland, a compensating use tax and thereby avoiding unfair discrimination and promoting equality between Maryland dealers and dealers in other states,  [***54]   and between purchasers in Maryland and purchasers outside Maryland for use in Maryland." (Emphasis supplied).  (Page 400 of 198 Md.; page 87 of 84 A. 2d).

He does state that Section 259(f) (3) of the Retail Sales Act is identical with Section 308(h) (2) of the Maryland Use Tax. As has already been pointed out, however, there are substantial differences in language between the presently relevant sections of the Retail Sales Act and similar provisions in the Maryland Use Tax, and these differences avoid unfair discrimination between Maryland producers and out-of-state producers.  The issue in the case at bar was not involved in Crofton, and was not argued or briefed in the Court of Appeals.  There is 

 [*520]  no legal requirement that the two acts be "parallel" and as we have seen in various provisions they are not parallel.  If this dictum supports the majority's construction at all, it is at best a frail and incorrect dictum, and one to which this Court did not refer in the subsequent case of Comptroller v. Hughes, supra, in which the Court found it unnecessary to pass upon the validity of Rule 63 but assumed arguendo that Rule 63 was valid.  [***55]  
In Baltimore Foundry & Machinery Corporation v. Comptroller, 211 Md. 316, 127 A. 2d 368 (1956), the Court held that patterns purchased by the taxpayers for the purpose of resale as well as to make castings for sale to the customer were exempt from the sales tax by virtue of then Sec. 320(f), now Sec. 324(f).  In paraphrasing the definition, the Court did use the language "for the purpose of resale in its original form, or for the purpose of incorporation into a finished product" to make the point that the definition provided an exclusion from taxation to be liberally construed in favor of the taxpayer and not an exception to be strictly construed against the taxpayer.  It had nothing to do with the distinction between "to use" or "to incorporate" and indicates no opinion whatever on this distinction.
In Comptroller v. Fairchild Engine & Airplane Corporation, 227 Md. 252, 176 A. 2d 210 (1961), the Court was only dealing with materials incorporated into missiles sold to the Government for testing. The case did not involve the "to use" or "to incorporate" distinction.  Judge Henderson, for the Court, sets forth the language of the "use" definition in the Maryland Use Tax [***56]  and stated: "Almost identical language is used in Code (1957), Art. 81, Sec. 324(f) in regard to sales at retail, and we shall treat the two together.  The taxes are, of course, complementary." (Emphasis supplied).  He did not say that the two provisions  [**613]  were wholly or entirely identical, but almost identical, no doubt perceiving the difference important in the case at bar, but entirely unimportant in Fairchild.  The dictum, such as it is, seems to me to tend to support the "use-incorporate" distinction in the Retail Sales Act rather than the contrary.
The majority also relies on Briggs Co. v. District of Columbia, 196 F. 2d 241 (D.C. Cir. 1952), but in that case 

 [*521]  Circuit Judge Fahy, for the United States Court of Appeals for the District of Columbia, pointed out that the Regulations in the District of Columbia indicated that "use" and "incorporate" were synonymous as used in the District of Columbia statute. n7 It was urged that in Maryland, Rule 63 had defined the words to include property consumed in the manufacturing process and that Congress, in adopting the same language, intended that the words be given that interpretation.  In regard [***57]  to this contention, Judge Fahy stated:
"It is argued that a different result would be reached in Maryland.  There a provision similarly worded had been enacted before passage of the District of Columbia statute.  By rule and administrative interpretation Maryland had apparently excluded from the coverage of its statute property consumed in the manufacturing process. It is contended that since this occurred prior to enactment of the local statute Congress intended the latter to be similarly construed.  But at least in the absence of a more settled interpretation, or one of high state judicial authority, we are free to apply the District statute differently.  As we construe the situation the cellulose casings are not incorporated in the frankfurters or used as a material or part of them, though used or consumed in the manufacturing process. This conclusion is not free of doubt, but our view is that if the uncertainty is to be resolved as petitioner ably contends this should be done by clarifying legislation rather than by judicial interpretation." (Pages 243-244 of 196 F. 2d).

This clearly indicates to me that in the Court's opinion the result in Maryland would be quite [***58]  different.

n7 See Note 3 on page 243 of 196 F. 2d 241.

It does not appear to me that the Comptroller's inartistic use of the phrase "has extended 'materials which are purchased for incorporation into a product produced for resale' to include such materials as are consumed in producing for sale products by manufacturing," etc., in his bulletin issued to explain Rule 63 

 [*522]  has the sinister implication of usurpation of legislative power suggested in the majority opinion.  It is quite clear from the language of Rule 63 that it was a definition of the whole phrase beginning "or to use or incorporate." It was a shortened form of saying the same thing in language laymen would readily understand as an authoritative result.
Finally on this aspect of the case, I think it most unfortunate and impermissible for the majority to give weight and effect to the statements made by one of the counsel for the Comptroller in the closing argument in the case in regard to the alleged purpose of the Comptroller in promulgating [***59]  Rule 63 to appease the coal interests who were threatening an attack on the Retail Sales Act which was thought to have a defective title, so that litigation could be avoided before the defect in the title could be cured by subsequent legislation.  There was no statement, however, that this interesting motivation was brought to the attention of the General Assembly when the subsequent amendments to the Retail Sales Act were proposed or even that this purpose was the only purpose which the Comptroller had in mind in the promulgation of Rule 63.  Rule 63 indicates the contrary.  It is in general terms.  "Coal" is only used as an example of one of its applications, not as the sole application.  More importantly,  [**614]  after "coal" was added to the specific exclusions by legislation within months after Rule 63 was promulgated, Rule 63 was not rescinded or modified by the Comptroller which would have obviously been the proper procedure if the appeasement of the coal interests had been its only purpose and those interests were fully protected by the amendatory legislation.  To permit Rule 63 to continue for 18 years as applicable to all taxable personal property consumed [***60]  in the manufacturing process clearly indicates to me that the purpose of Rule 63 was of general application and was not aimed entirely at the specific "coal problem."
But far more importantly, the statements of counsel and no testimony of like character appeared in the record made before the trial court and, of course, do not appear in the record on appeal.  The statements did not emanate from a witness, duly sworn, and subject to cross examination.  The statements involved a transaction 18 years ago and however eminent, knowledgeable, 

 [*523]  and well qualified counsel may be, his statements in appellate argument, not agreed to by opposing counsel, can hardly qualify as evidence.
We have often held that a matter not raised in, or considered by, the trial court, but presented for the first time on appeal will not ordinarily be considered.  Meyers v. Jacham Enterprises, Inc., 225 Md. 86, 169 A. 2d 415 (1961), and cases cited therein.  This is provided in Maryland Rule 885.  This is a most salutary rule and should have been applied in the matter under discussion.
I would affirm Judge Sodaro's judgment reversing the decision of the Comptroller with respect to the claim [***61]  for $ 1348.50.
In regard to the $ 970.84 claim, I concur in the reversal of the trial court.  This concurrence in the result, is upon a ground not reached by the majority because of its decision in regard to the construction of the statute.  The notice of assessment on the $ 970.84 claim was dated June 13, 1963.  It was sent by certified mail with a return receipt requested to the taxpayer, Bloomingdale Rubber Company, P. O. Box 191, Aberdeen, Maryland.  The assessment contained the following statements:
"In order to avoid further imposition of interest and penalty this amount must be paid directly to the attention of the undersigned, at 301 W. Preston Street, Baltimore 1, Maryland on or before July 12, 1963."
"If no application for revision is made within thirty days of the date of this notice, the assessment will become final."
The return receipt was signed:
"American Cyanamid -- Bloomingdale Dept.
William G. Court, 6-14-63"
The assessment was for the period January 1, 1962 through April 11, 1963.  No protest was made until July 17, 1963, 4 days after the 30 day statutory period for protest provided for in Article 81, Sec. 351(a) of the Maryland Code, which provides:  [***62]  
"§  351(a) Any taxpayer may apply to the Comptroller for revision of the tax assessed against him by 

 [*524]  the Comptroller within 30 days of the date on which the Comptroller mails a notice of the assessment to the taxpayer's last known address.  If no application for revision is made within the aforesaid 30-day period, the assessment shall become final and no application for revision shall be considered by the Comptroller unless made within that period.
"If the assessment is paid by the taxpayer, no application for refund shall be considered by the Comptroller unless made within 30 days of the mailing of the notice of assessment.
"When application for revision of refund or assessment, as the case may be, is made within the 30-day period,  [**615]  the Comptroller shall promptly act thereon and shall notify the taxpayer of his action.
"Within 30 days of the mailing of the Comptroller's notice of his action upon the taxpayer's application for revision or refund of an assessment or upon 30 days from the mailing of notice to the taxpayer as provided for by §  349 of this subtitle, the taxpayer may request a formal hearing before the Comptroller.  Thereupon,  [***63]  after reasonable notice to the taxpayer, the Comptroller shall grant such hearing." (Emphasis supplied).
This language is mandatory and the proper and efficient operation of the Retail Sales Act requires that this provision be strictly enforced.  The appellees urge that there has been a "substantial compliance" with Sec. 351(a) because of the following stipulated facts: By a letter dated May 17, 1963, Bloomingdale notified the Comptroller that American Cyanamid had purchased Bloomingdale's assets and had assumed its liabilities.  Bloomingdale at that time had already seasonably protested the assessment based on Bloomingdale's purchases of aluminum from July 1, 1956 through December 31, 1961 and had claimed a refund. As a result of the notice of May 17, 1963, the Comptroller had made an additional audit for the period January 1, 1963 through April 30, 1963 on the basis of which the assessment described in the notice of June 13, 1963 was made and 

 [*525]  sent to Bloomingdale.  If the notice had been sent to American Cyanamid it would have been seasonably protested.  Because it was sent to Bloomingdale, it was held, unopened in accordance with the office practice, until Philip [***64]  Golbin returned from Europe on June 24, 1963.
As Bloomingdale had filed the reports and paid the tax, the deficiency was properly levied against it as the taxpayer.  See Sec. 324(q) of Art. 81.  There can be no doubt that the notice was received by both American Cyanamid and Bloomingdale.  The return receipt is signed "American Cyanamid -- Bloomingdale Dept." The Comptroller cannot be charged with knowledge of the internal procedure of American Cyanamid or of Bloomingdale in regard to the opening of mail.  Then too, Mr. Golbin returned from Europe on June 24, 1963 or 19 days before the final date to challenge the assessment.
There is, however, no provision in the law for "substantial compliance" or for the equitable considerations which appear in this case as possibly overcoming the requirement of Sec. 351(a).  "All refunds of State taxes are matters of grace with the Legislature." Wasena Housing Corp. v. LeVay, 188 Md. 383, 389, 52 A. 2d 903, 906 (1947). The refund is conditioned upon the making of an application for refund within the 30 day period.  When it is not made, the statutory right to refund no longer exists.  

17 of 138 DOCUMENTS 

STATE v. MADISON 

No. 408, September Term, 1965 

Court of Appeals of Maryland 

240 Md. 265; 213 A.2d 880; 1965 Md. LEXIS 451 

October 21, 1965, Decided 

November 5, 1965, Filed 

PRIOR HISTORY:
 [***1]  

Appeal from the Criminal Court of Baltimore; O'Donnell, J.  

DISPOSITION:
Affirmed.  

HEADNOTES:

Constitutional Law -- Indictment Brought By Grant Jurors Required To Show Belief In God Dismissed -- Unconstitutional Method Of Grand Jury Selection Gives Accused Right To Have Indictment Dismissed Without Showing Prejudice -- Due Process.  Following this Court's holding in Schowgurow v. State that the provision of Article 36 of the Maryland Declaration of Rights requiring demonstration of belief in God as a qualification for service as a grand or petit juror was in violation of the Fourteenth Amendment to the United States Constitution, and its further holding that the decision was not to apply retroactively except for convictions which had not become final before rendition of the opinion, the defendant in the instant case, who had not been tried at the time the Schowgurow opinion was rendered, but who had been indicted by a grand jury which was impaneled from persons who were required to show their belief in the existence of God, moved to dismiss the indictment and presentment returned against him.  This Court held that the indictment was properly dismissed.  The defendant was a member [***2]  of the Apostolic faith who, unlike Schowgurow, a Buddhist, believed in the existence of a Supreme Being.  The State contended that the defendant here was not entitled to question the validity of the indictment because he was not a member of the class unconstitutionally excluded from the grand jury which indicted him.  The Court said, however, that Supreme Court decisions requiring that the defendant be a member of the excluded class in order to have standing to attack the constitutionality of the method of jury selection under a law nondiscriminatory on its face were not here in point.  As a result of Schowgurow, under the decisions of the Supreme Court, the grand jury which indicted Madison was not selected in accordance with law.  The Supreme Court's decision in the Torcaso case, which this Court held in Schowgurow rendered the exclusionary mandate of Article 36 of the Declaration of Rights invalid, rested upon the establishment of religion clause of the First Amendment to the Federal Constitution, made applicable to the states through the Fourteenth.  Here the defendant's right to challenge his indictment rested upon the due process and equal protection clauses of the [***3]  Fourteenth Amendment and upon the law of the land provision of Article 23 of the Maryland Declaration of Rights.  When the law of the land has been made clear, a person accused of crime, to be entitled to due process, does not have to show that he would be injured if due process is lacking.  Equal protection of the laws was also involved because the effect of the State's contention would have been that pending indictments against persons who believed in a Supreme Being could not be successfully challenged, while indictments against others who did not have that belief would be dismissed.  Such a discrimination because of opinions about religion would be a denial of equal protection of the laws.  

SYLLABUS:

Leon Dallas Madison was indicted for statutory rape by a grand jury which was impaneled from persons who were required to show their belief in the existence of God.  Prior to being tried he moved to dismiss the indictment and the presentation returned against him.  From the order granting the defendant's motion, the State appeals.  

COUNSEL:
Thomas B. Finan, Attorney General, for appellant.
George L. Russell, Jr., for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Marbury, Oppenheimer [***4]  and Barnes, JJ.  Oppenheimer, J., delivered the majority opinion of the Court.  Horney and Barnes, JJ., dissent.  Dissenting opinion by Horney, J., at page 275, infra.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*267]   [**881]  In Schowgurow v. State, 240 Md. 121, 213 A. 2d 475, we held that because of the decision of the Supreme Court of the United States in Torcaso v. Watkins, 367 U.S. 488 (1961), reversing the decision of this Court, the provision of Article 36 of the Maryland Declaration of Rights requiring demonstration of belief in God as a qualification for service as a grand or petit juror was in violation of the Fourteenth Amendment to the United States Constitution.  We held, further, that our decision was not to apply retroactively except for convictions which had not become final before rendition of our opinion.  In this case, Madison had been indicted in Baltimore City, for statutory rape, by a grand jury which, it has been stipulated, was impaneled from persons who, as a condition of their  [**882]  service as jurors, were required to show their belief in the existence of God.  Madison pled not guilty.  He had not been tried at the time our opinion in Schowgurow [***5]  was rendered.  He moved to dismiss the indictment and the presentment returned against him.  Madison is a member of the Apostolic faith who believes in the existence of a Supreme Being.  Schowgurow was a Buddhist whose religion does not teach that belief.  The State contends that Madison is not entitled to question the validity of the indictment because he is not a member of the class unconstitutionally excluded from the grand jury which indicted him.
Arguments on the motion were had before Judge O'Donnell in the Criminal Court of Baltimore.  He granted the motion, the State appealed, and because of the importance of the case in the administration of justice in Maryland, with the consent of the parties, we heard the appeal within a week.  After argument, we affirmed Judge O'Donnell's dismissal of the indictment by per curiam order.  The reasons for our order follow.
In his clear and thorough oral opinion, Judge O'Donnell pointed out that, as a result of Schowgurow, under the decisions of the Supreme Court, the grand jury which indicted Madison was not selected in accordance with law; that the unlawful method of its selection was not a mere "harmless irregularity" 

 [*268]   [***6]  but a violation of the Federal Constitution; and that, under our basic law, Madison's timely right to object need not have any ground other than the fact that he was indicted by that grand jury. We agree.
Supreme Court decisions requiring that the defendant be a member of the excluded class in order to have standing to attack the constitutionality of the method of jury selection under a law nondiscriminatory on its face are not here in point. n1 In Schowgurow, we pointed out that, in such cases, "the question was whether, under a law, nondiscriminatory on its face, through administration or practice, there had been exclusion as a matter of fact.  Here, there has been systematic exclusion for over a century by the mandate of the Maryland Constitution."

n1 For example, in Fay v. New York, 332 U.S. 261 (1947), the petitioners had attacked the constitutionality of the special or socalled "blue ribbon" jury as used by state courts in the State and County of New York.  The Court did not find any constitutional offense in the statutory standards prescribed for the special panel and referred to the fact that the petitioners were not members of any excluded class only in connection with their claim that the procedure under which the special juries were selected was unconstitutional because of deliberate administrative exclusion of certain classes of persons, which, the Court found, had not been proved.  Brown v. Allen, 344 U.S. 443 (1953) involved only the operation of the method used by North Carolina in selecting juries; there was no unconstitutional discrimination in the statute.  In Rawlins v. Georgia, 201 U.S. 638 (1906), the plaintiffs in error contended, not that there was an unconstitutional exclusion of classes from jury service in the statute, but that the exclusions were made by the jury commissioners; the Court held that, while it did not appear that any of the defendants belonged to any of the excluded classes, the exclusion was not the result of race or class prejudice.  In cases such as Norris v. Alabama, 294 U.S. 587 (1935) and Hernandez v. Texas, 347 U.S. 475 (1954) in which the Court considered the evidence as to prejudice against the race or class of which the petitioner was a member, the unconstitutional exclusion was the result of the administration of the statutes which were valid on their face, and did not, as here, result from exclusion required by the basic law.

 [***7]  
Where, as here, the unconstitutional discrimination is an integral part of the governing law, a defendant in a criminal case whose conviction has not become final is not required to show 

 [*269]  that he is prejudiced by the application of the law.  Every person accused of crime has the right to be tried under what has been determined to be the law of the land.  In Schowgurow, the State,  [**883]  as here, contended there had been no showing of actual prejudice. We held that where the system of jury selection on its face provides for illegal discrimination and exclusion, an actual showing of prejudice is unnecessary.  It is the danger of abuse resulting from the method of selection which renders it unconstitutional.  We pointed out that the exclusion of non-believers was not only authorized but demanded by the Maryland Constitution and that the resulting danger of abuse, under the decisions of the Supreme Court, obviates any need to show individual prejudice.
Almost a century ago, this Court held that, when the method of selection of a grand jury is clearly invalid, the challenge of a defendant to his indictment by that body must be sustained, without any showing of prejudice.  [***8]  Clare v. State, 30 Md. 164 (1869). In that case, the defendant pleaded in abatement that the mandates of the law had not been followed in the selection of the grand jury, because its members had been selected, not by the judges as the law required, but by a court clerk.  The lower court found these allegations to be factually correct, but held they were mere informalities, not fatal defects.  The pleas were overruled and the defendant was convicted. On appeal, we reversed the judgment of conviction, holding that the lower court erred in overruling the pleas.  The defendant, Clare, had not alleged or proved any specific prejudice as to him in the unlawful method of selection.  We said, however:
"Under any government of law the trial of persons accused of crime, from its commencement to the conclusion, should be scrupulously conducted according to the requirements of the law.  Not only the sacred administration of public and private justice, but the good order of the community, the security and protection of life, liberty and property, cannot be preserved, except by the inflexible maintenance and impartial enforcement of the statutory, as well as the fundamental laws of the [***9]  land." 30 Md. at 178.

 [*270]  In State v. Vincent, 91 Md. 718, 47 Atl. 1036 (1900), the appellee was indicted for perjury.  He demurred to the indictment, alleging, inter alia, that the indictment showed on its face that the grand jury was composed of only 22 persons, when the law required 23 members.  The lower court sustained the demurrer and quashed the indictment, and, on appeal, we affirmed.  In Vincent, as in Clare, there was no allegation or showing of individual prejudice to the person indicted. We held that the invalid omission of the twenty-third juror of itself created a presumption of prejudice, and quoted the statement in Clare that government under law requires that the trial of persons accused of crime be conducted according to the law of the land.
In Walter v. Indiana, 208 Ind. 231, 195 N. E. 268 (1935), the appellant had been convicted of embezzlement.  He had unsuccessfully challenged the array of the jury which tried him on the ground that the commissioners who selected the names to be drawn as jurors had purposely and intentionally excluded the names of women.  The state statute required that the names be selected from the names [***10]  of all qualified voters, which the court construed to mean there could be no exclusion because of sex.  The exclusion of women by the jury commissioners was admitted.  The Supreme Court of Indiana reversed the judgment; it held that the lower court erred in overruling the challenge to the array, even though the appellant was not a member of the class improperly excluded, and even though he showed no specific prejudice.  The court said:
"A jury not organized in accordance with the statute is an unlawful jury, and in support of a challenge it is not necessary to show that the members of the jury are not qualified jurors ***
"It  [**884]  does not suffice to say that appellant can not show that his substantial rights were impaired, or that the jurors were biased or prejudiced against him, or that he did not have a fair trial *** This right [the appellant's right to have the jury selected without illegal exclusion of any class] may not legally be denied, and if it is denied we must presume that the defendant was prejudiced thereby." 208 Ind. at 236-37.

 [*271]  Walter was cited with approval in Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). In that case,  [***11]  a civil action for damages had been brought in a United States District Court.  The petitioner, a salesman, moved to strike the entire jury panel on the ground that the jury commissioners had deliberately and intentionally excluded from the jury lists all persons who worked for a daily wage.  The exclusion was admitted, but the lower court denied the challenge, and the jury returned a verdict for the respondent.  On appeal, the Supreme Court reversed on the ground that petitioner's motion to strike the panel should have been granted.  The Court acted in the exercise of its power of supervision over the administration of justice in the federal courts. n2 It said, "On that basis it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class." 328 U.S. at 225.

n2 In McNabb v. United States, 318 U.S. 332, 340-41 (1943) Mr. Justice Frankfurter discussed the relationship between the exercise of the Supreme Court's power of supervision over the administration of justice in the federal courts and its review of state action in due process of law cases.  He said:
"Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.  Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as 'due process of law' and below which we reach what is really trial by force.  Moreover, review by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction.  Considerations of large policy in making the necessary accommodations in our federal system are wholly irrelevant to the formulation and application of proper standards for the enforcement of the federal criminal law in the federal courts."

 [***12]  
In Ballard v. United States, 329 U.S. 187 (1946), the petitioners had been indicted and convicted in a District Court for using and conspiring to use the mails to defraud.  Both the grand and petit juries had been drawn from panels from which 

 [*272]  women admittedly had been systematically excluded.  The defendants had duly moved to quash the indictments and to challenge the array of petit jurors. The Court reversed the convictions, acting, as in Thiel, in the exercise of its power of supervision over the administration of justice in the federal courts.  In its opinion, the Court said that:

"[R]eversible error does not depend on a showing of prejudice in an individual case.  The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection. The systematic and intentional exclusion of women, like the exclusion of a racial group, Smith v. Texas, 311 U.S. 128, or an economic or social class, Thiel v. Southern Pacific Co., supra, deprives the jury system of the broad base it was designed by Congress to have in our democratic society *** The injury is not limited to the defendant [***13]  -- there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts." 329 U.S. at 195.
 [**885]  In Cassell v. Texas, 339 U.S. 282, 287 (1950), the Court was faced with a problem of state action. It reversed the conviction because the state trial court had denied the appellant's motion to quash the indictment on the ground there had been an unconstitutional discrimination through the selection of white men only on the grand jury that indicted him.  While Cassell was a Negro, the Court said: "An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race."
In Allen v. State, 110 Ga. App. 56, 137 S. E. 2d 711 (1964), referred to in Schowgurow, the defendant, a white man, had moved to quash the indictment against him and had challenged the array of traverse (petit) jurors on the ground that Negroes had been systematically and deliberately excluded from serving as grand and traverse jurors. The lower court assumed the defendant's allegations to be true, but denied his motion.  [***14]  The case was transferred to the Georgia Court of Appeals.  The court 

 [*273]  held that the trial court erred in overruling the defendant's motion and challenge and reversed.  The decision rested on two separate grounds.  The court said that, were it necessary to show prejudice, judicial notice might be taken that the defendant, who was active in promoting participation in government by Negroes, would be the object of prejudice.  It also held, however, citing Thiel, that it was unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class because the exclusionary practice resulting in the failure of the jury to represent a cross-section of the community is condemned by the Fourteenth Amendment. On this phase of the case, the court said:
"We are of the opinion that any system that results in the consistent selection of jurors from a group or portion only of those available for service in that office, rather than from those available without discrimination, does not accord to any defendant the type of jury to which the law entitles him." 110 Ga. App. at 62.
In Schowgurow it was held [***15]  that because of the Supreme Court's decisions the exclusion of persons from juries because they did not believe in God was invalid. By that decision, in all pending and future cases, indictments by grand juries and criminal trials by petit juries selected under the exclusionary method formerly prescribed by Article 36 of our Declaration of Rights, were declared defective.  As Clare and Vincent make clear, once it is established that the method of the grand jury's selection is unconstitutional, any accused indicted by such a jury has the right to have the indictment dismissed. He has this right, not because of any individual prejudice to him but because, under the basic law of our land, all persons accused of crime have the right to be tried in accordance with the requirements of our legal system.
The Supreme Court's decision in Torcaso, which we held in Schowgurow rendered the exclusionary mandate of Article 36 of our Declaration of Rights invalid, rested upon the establishment 

 [*274]  of religion clause of the First Amendment to the Federal Constitution, made applicable to the states through the Fourteenth.  Madison's right to challenge his indictment however,  [***16]  after Torcaso and Schowgurow, rests upon the due process and equal protection clauses of the Fourteenth Amendment and upon the law of the land provision of Article 23 of the Maryland Declaration of Rights.  When the law of the land has been made clear (even when, as here, it is established by the reversal by the Supreme Court of a decision of this Court) a person accused of crime, to be entitled to due process, does not have to show that he would be injured if due process is lacking.  The right to be tried in accordance with the law is the constitutional privilege of every man.
 [**886]  Equal protection of the laws, as well as due process, is involved.  Under the State's contention, while Schowgurow, a Buddhist, was held entitled to a new trial because he was indicted and tried by juries unconstitutionally selected, Madison, a member of the Apostolic faith, could not object to his indictment by a grand jury selected in the same unconstitutional manner.  The only difference between the two men, in this respect, is the nature of their religious beliefs.  Discrimination because of opinions about religion is one of the classic examples of denial of the equal protection of the [***17]  laws.  Niemotko v. Maryland, 340 U.S. 268, 272-73 (1951); Juarez v. State, 102 Tex. Crim. 297, 303-04, 277 S. W. 1091 (1925). If we were to uphold the State's contention in this case, the effect would be that pending indictments against persons who believed in a Supreme Being could not be successfully challenged, while indictments against others who do not have that belief would be dismissed.  There would, in effect, be an unconstitutional discrimination in favor of non-believers as against believers.
The State points to the fact that a decision in its favor in this case would materially reduce the number of indictments which must be rebrought.  We made it clear in Schowgurow that the decision in that case, for the reasons of public policy in the administration of justice therein stated, with the exception noted, is to apply only prospectively.  Nevertheless, we recognize that there will be some interference, for the time being, with the 

 [*275]  expeditious disposition of pending criminal cases. n3 This additional, if temporary, burden upon our courts and the State results because, under the decision of the Supreme Court in Torcaso, the fundamental principles of [***18]  due process and the equal protection of the laws require that all accused persons in pending criminal cases shall have the right to ask that they be indicted and tried by juries selected in the manner which the Supreme Court's decision has made necessary.  We pay a price for the federal nature of our government, but, without it, we would not be a nation.  Under our governmental system, the decisions of the Supreme Court must be controlling even when, as here, the decision makes invalid a long-established provision of the Maryland Constitution, previously held valid by this Court.  

n3 William L. Marbury, Esq. president of the Maryland State Bar Association, has stated that:
"[W]hile there is some confusion in the courts, that is only temporary.  The courts themselves are facing up to the problem and adapting their procedures to the legal situation.
"All noncriminal matters are being tried in legal order.  There will be no wholesale release of prisoners on a mere technicality.  Jurors are still under the obligation to perform their civic responsibilities and duties to the best of their ability and in furtherance of the public interest ***
"[T]he public may rest assured that no more than temporary dislocations in the administration of justice need be anticipated." The Sun, Oct. 24, 1965, p. 24, col. 1.

 [***19]  

DISSENTBY:
HORNEY 

DISSENT:

Horney, J., filed the following dissenting opinion in which Barnes, J., concurred.
I do not agree that all pending indictments or trials by grand or petit jurors selected under the provisions of Article 36 of the Declaration of Rights are defective as to those indictees who profess a belief in God.  Nor do I agree that the sustaining of an indictment against a person who believes in God and the dismissal of an indictment against a person who does not have such a belief would invariably constitute an unconstitutional discrimination in favor of nonbelievers as against believers.
Torcaso v. Watkins, 367 U.S. 488 (1961), held that a nonbeliever 

 [*276]  seeking an appointment as a notary public could not be compelled to declare he believed in the existence of God.  But the decision in that case did not proscribe the right of a believer to declare his  [**887]  belief in God as a part of the official oath of office if he chose to do so.  It is therefore as much the right of a believer to declare his belief as it is the right of a nonbeliever to decline to do so.  For this reason, and because a believer would not ordinarily be injured or prejudiced thereby,  [***20]  the former practice of an elected or appointed officeholder making a declaration of his belief in God in taking an oath of office has not been discontinued.
By the same token, although the majority in Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 (1965), having taken judicial notice of the fact (there being no showing of actual prejudice) that nonbelieving jurors had been excluded from serving as jurors, held, in equating the exclusion of nonbelievers to the exclusion of persons because of race or national origin, that the challenges of the appellant to the composition of the grand jury which indicted him and the petit jury which tried him were valid and that the motions to dismiss the indictment and the panel of petit jurors should have been granted, the decision nevertheless, as I understood it, was limited to the appellant and other members of the class that had been excluded from the jury for lack of belief in God.
While that part of Article 36 requiring jurors to profess a belief in God has been declared unconstitutional as to criminal defendants who are nonbelievers, there is, as I see it, no reason for holding that Article 36 is also null and void as to the appellee [***21]  in this case who is a believer in the absence of a showing (and there was none) that he was actually prejudiced or otherwise had standing to contest the validity of the indictment. The reasoning of the majority carried a step further, could result: (1) in all officeholders (including the members of this Court), who declared a belief in God as a part of their official oath, being held to be unqualified to perform the duties of their office; and (2) in criminal defendants, who are still imprisoned, regardless of when they were indicted or tried and convicted by a jury composed of believers only, being entitled to reindictment and new trials.  While the first statement might 

 [*277]  be said to be an absurdity, the second, despite its catastrophic effect, is not beyond the realm of possibility.  Not only was the holding of the majority in this case unnecessary under the circumstances, but the cases clearly do not compel the unfortunate result it reached.
As to necessity, since there was no showing of any prejudice to the appellee, who professes to be a member of the Apostolic faith and therefore a believer in God, in connection with the selection of the jurors drawn at the 1965 September [***22]  Term of the Criminal Court of Baltimore, which had been accomplished in accordance with the constitutional requirements then existent, it is inconceivable to me how a believer in God could possibly have been prejudiced by the manner in which the grand jurors were sworn.  The record, such as it is, indicates that when the judge, whose duty it was to charge the grand jury, inquired whether there were any among them who disbelieved in God, all jurors answered in the negative.  But had Schowgurow been decided and there had been affirmative answers, then all that the clerk of court need have done was swear those who professed to be believers by administering the customary grand jury oath and separately affirm those who were nonbelievers (possibly under penalty of perjury) by administering an affirmation similar to that taken by the members of those religious denominations or sects who decline to take an oath.  In so doing, the beliefs of each member of the grand jury would have been gratified and the rights of those indicted by the jury -- whether believers or nonbelievers -- would not have been violated.  And in that event, since no constitutional question would have been involved,  [***23]  it would have been unnecessary to discharge the grand jury as then constituted and select another one which may or may not have consisted of believers only, nonbelievers only, or both believers and nonbelievers. It follows therefore, it seems to me, since the appellee, who is a Christian,  [**888]  has shown no actual prejudice to himself by having been indicted by a jury of believers, that there is in this case no necessity to require reindictment of the appellee by another grand jury drawn without regard to the religious beliefs of the members thereof.
While it was held in Clare v. State, 30 Md. 163 (1869), that 

 [*278]  an indictment found by grand jurors who had been selected from a list prepared by a deputy clerk instead of by the judges was fatally defective and should have been quashed and the traverser reindicted; and it was also held in State v. Vincent, 91 Md. 718, 47 Atl. 1036 (1900), that an indictment by a grand jury composed of less than twenty-three members was invalid as to a traverser who had not waived the defect, neither of these cases, both of which concerned the violation of statutory rather than fundamental law, is authority for the statement of [***24]  the majority that "once it is established that the method of the grand jury's selection is unconstitutional, any accused indicted by such jury has the right to have the indictment dismissed." On the contrary, in State v. Scarborough, 55 Md. 345 (1881), it was said that, in the absence of a showing to the contrary, there is a presumption of law that a grand jury was legally and regularly drawn and empaneled; in State v. Glascow, 59 Md. 209, 212 (1882), it was said of a statute (not a constitutional provision) that unless the irregularities therein are such as "to materially violate it, or so affect the juries as to prejudice the rights of the citizen, these irregularities should not be treated as fatal"; and in State v. Keating, 85 Md. 188, 198, 36 Atl. 840 (1897), it was said that "although there be irregularities in the selection and drawing of a jury the proceedings will not be set aside, unless the Court can see that they have resulted, or may result, to the prejudice of the party accused." None of these cases, though infrequently cited, have ever been overruled.  See State v. Vincent, supra, at p. 729; King v. State, 190 Md. 361, 58 A. 2d 663 (1948); and  [***25]  Young v. Lynch, 194 Md. 68, 69 A. 2d 787 (1949).
With respect to the cases in other jurisdictions cited by the majority for the proposition that where the system of jury selection on its face provides for illegal discrimination and exclusion an actual showing of prejudice is unnecessary, such as Walter v. Indiana, 195 N. E. 268 (Ind. 1935), Ballard v. United States, 329 U.S. 187 (1946) and Cassell v. Texas, 339 U.S. 282 (1950), they are no more than additional authority for the holding in Schowgurow that the exclusion of persons from juries because they did not believe in God was invalid. None of them, as I read them, are authority for the holding of the majority 

 [*279]  in this case that all pending and future indictments or trials by grand or petit jurors selected under the method prescribed by Article 36, supra, are ipso facto fatally defective as to the appellee without showing that he had been prejudiced.
Nor do the cases, as I read them, compel the holding reached by the majority in this case.  Since, if it be assumed as the majority has done, that the situation here is analogous to the circumstances in those cases dealing with systematic exclusion [***26]  of persons because of race, national origin and sex, it seems apparent to me that the appellee, a believer in God, who has shown no prejudice, has not been harmed by having been indicted by a grand jury composed of believers only.  The traditional doctrine concerning such exclusions is embodied in the "sameclass" rule which is to the effect that if the defendant is a member of the group or other class excluded the danger of prejudice is great enough for a court to hold that the exclusion is unconstitutional without a showing of actual prejudice; but if he is not a member of the excluded group or class the danger is not great, and before the court will hold the exclusion unconstitutional as to him, it must find that the defendant was actually prejudiced.
 [**889]  This has been the established rule in other states for some years.  See, for example, Griffin v. State, 190 S. E. 2 (Ga. 1937); Haraway v. State, 159 S. W. 2d 733 (Ark. 1942), cert. den. 317 U.S. 648 (1942); State v. Koritz, 43 S. E. 2d 77 (N. C. 1947), cert. den. 332 U.S. 768 (1947); State v. Jones, 57 A. 2d 109 (Del. 1947); People v. White, 278 P. 2d 9 (Cal. 1954), cert. den. 350 U.S. 875 [***27]  (1956); State v. Lea, 84 So. 2d 169 (La. 1955), cert. den. 350 U.S. 1007 (1956); and State v. Clifton, 172 So. 2d 657 (La. 1965). In State v. Lea, supra, it was said at p. 170: "As we take it, the defendant is contending that he has been discriminated against by the exclusion of a race or class of persons to which he does not belong.  In our review of the decisions of this Court and the Supreme Court of the United States, we do not find any case wherein the verdict of a jury was reversed on the ground of systematic exclusion of a class or race except where the accused was a member of that class." The Supreme Court of the United States has never actually passed on the question.  In Fay v. New 

 [*280]  York, 332 U.S. 261 (1947), the Court pointed out that it had "never entertained a defendant's objections to exclusions from the jury except when he was a member of the excluded class," and it has not done so since.
While it was said in Allen v. State, 137 S. E. 2d 711 (Ga. App. 1964), that the selection of "jurors from a group or portion only of those available for service in that office, rather than from those available without discrimination, does not accord [***28]  to any defendant the type of jury to which the law entitled him," it must not be overlooked that the white defendant in that case was active in voter registration among Negroes and so would have been prejudiced by being tried by a jury from which Negroes were excluded.
I would have reversed the lower court instead of affirming it.  

18 of 138 DOCUMENTS 

PRYOR v. PRYOR 

No. 406, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 224; 213 A.2d 545; 1965 Md. LEXIS 445 

October 20, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order affirmed, the appellant to pay the costs.  

HEADNOTES:

Divorce -- Petition Of First Wife To Set Aside Divorce Decree Obtained Thirteen Years Earlier By Spouse Allegedly Lacking Necessary Residence At Time Dismissed Because Of Laches.  In the instant case, the Court held that the defense of laches was properly applied in the dismissal of a petition to set aside a divorce decree obtained by a spouse 13 years earlier. The petition alleged fraud in connection with the residence requirements applicable to the plaintiff in the original divorce suit. The lower court found as a fact that Wife No. 1 had actual knowledge in 1946 that the husband had obtained a divorce from her in Baltimore.  The court concluded that her failure to take any action for 13 years to set the decree aside during which time Wife No. 2 had married the husband without knowing of any legal impediment to the validity of her marriage, and had lived with the husband as his wife for 13 years until his accidental death in 1959 (after which event the petition to set aside was filed) amounted to laches which required that the petition of Wife No.  [***2]  1 to set the divorce decree aside be dismissed.  This Court noted that there is a strong public policy generally in sustaining the finality of judgments and decrees, and in particular divorce decrees. Although remarriage by the plaintiff in the divorce suit and the fact of the husband's death prior to the filing of the petition to strike out the divorce decree do not preclude the first wife from attacking the divorce decree as a fraud on the court, these are factors which may be given consideration as elements in considering the necessary prejudice resulting from the unwarranted delay for the application of laches in the particular case. On the facts of the instant case, this Court felt that since Wife No. 2 married and continued to live with the husband for 13 years relying on that decree as establishing the validity of her marriage, the continued silence and inactivity of Wife No. 1 prejudiced Wife No. 2.  In addition, the death of the husband prior to the filing of Wife No. 1's petition to strike the decree was prejudicial in that it removed a most important witness to the question of the husband's residence in Maryland.  These factors supported the trial court's conclusion that [***3]  the petition of Wife No. 1 should be dismissed because of laches. 

SYLLABUS:

Suit by Louvain Pryor, first wife of Warwick N. Pryor, to set aside a decree of divorce a vinculo matrimonii granted to her husband thirteen years before the filing of the petition in this suit, which was resisted by Sylvia Pryor, second wife of the now deceased husband.  From an order dismissing the plaintiff's petition, she appeals.  

COUNSEL:
Lewis L. Fleury, with whom was Harry M. Sachs, Jr. on the brief, for appellant.
No brief and no appearance for appellee.  

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

OPINIONBY:
BARNES 

OPINION:

 [*225]   [**545]  The appellant, Louvain Pryor (Wife No. 1) was married to Warwick N. Pryor (husband) on December 25, 1939.  The husband filed a bill of complaint against Wife No. 1 in the Circuit Court of Baltimore City on April 15, 1946 in which he 

 [*226]  alleged the marriage of the parties; that he had been a resident of Baltimore City for more than one year next preceding the filing of  [**546]  the bill of complaint; that Wife No. 1 was a nonresident of Maryland and the usual allegations of abandonment by Wife No. 1.  He prayed for a divorce [***4]  a vinculo matrimonii, other relief and for an order of publication to be served personally on Wife No. 1 at 545 West 141st Street, New York, N. Y.
On June 25, 1946, a certificate, duly verified, of Hamilcar B. Hannibal, as the server of process, was filed in the divorce suit indicating that Mr. Hannibal had received the order of publication in the suit and on April 20, 1946, took the order of publication to 545 West 141st Street, New York City, N. Y. where the defendant (Wife No. 1) resided and after informing her of the nature and object of the action, left the order of publication with the defendant and that "he did then and there make personal service on the defendant."
Wife No. 1 not having answered, a decree pro confesso was entered on June 3, 1946 and the suit was referred to one of the Examiners to take testimony to support the allegations of the bill of complaint.
Testimony was taken before an Examiner on June 25, 1946 and filed on July 3, 1946.  The husband testified that he resided at 1104 Russell Street, Baltimore and was employed as a freight checker.  He also testified that he was "a resident of Baltimore City and State of Maryland" and had been "for more than [***5]  one year prior to the filing of this Bill."
The husband's testimony was corroborated by Atlas E. Barbee, Jr. (Barbee) who testified that he resided at 1104 Russell Street, Baltimore and that he was employed in the Baggage Department of the Pennsylvania Railroad Company.  He further testified that the husband was a resident of Baltimore City and of the State of Maryland and that the husband had "been for more than one year prior to the filing of this suit."
A final decree was passed by the Circuit Court on July 16, 1946 as recommended by the report of the Master, divorcing the husband from Wife No. 1 a vinculo matrimonii and requiring the husband to pay the costs.
The husband one week after the signing and filing of the final decree married Sylvia Pryor (Wife No. 2) on July 23, 1946 in Baltimore, Maryland.

 [*227]  In February 1959, the husband was killed while employed by the New York Central Railroad Company allegedly as a result of the negligence of his employer and the United States of America.  As the husband had been employed in interstate commerce, his widow is entitled to bring an action under the Federal Employees Liability Act against his employer and, as a result [***6]  of his allegedly wrongful death, also is entitled to bring an action under the Federal Tort Claims Act and the New York wrongful death statute.
Almost 13 years after the divorce decree was signed and filed, Wife No. 1 filed a petition on July 9, 1959 in the Circuit Court to strike out the divorce decree. She alleged inter alia that she was not served with the process as certified in the proceedings, that neither the husband nor Wife No. 1 had ever been residents of Maryland, the husband during the year prior to filing the bill of complaint was a resident of New York City, employed by the Pennsylvania Railroad Company in the freight yards there and that he never resided at 1104 Russell Street, Baltimore, Maryland.  She also alleged that Barbee was likewise a resident of New York City, was never a Maryland resident and was still residing in New York City.  She set forth in her petition that these facts constitute a fraud on the court, and the decree is a mistake based upon false testimony and fraud, and for these reasons, should be stricken out.  She prayed that the divorce decree be stricken out.  She offered testimony tending to establish the allegations of her petition.
Judge [***7]  Cardin, after hearing argument and considering the case filed a carefully considered opinion reviewing the facts and the applicable law.  Judge Cardin found as  [**547]  a fact that Wife No. 1 had actual knowledge in 1946 that the husband had obtained a divorce from her in Baltimore.  He concluded that her failure to take any action for 13 years to set the decree aside during which time Wife No. 2 had married the husband without knowing of any legal impediment to the validity of her marriage, and had lived with the husband as his wife for 13 years until his accidental death in 1959 (after which event the petition to set aside was filed) amounted to laches which required that the petition of Wife No. 1 to set the divorce decree aside be dismissed.  An order dismissing the petition of Wife No. 1 was filed on October 

 [*228]  26, 1964 and this appeal followed.  We agree with Judge Cardin's conclusion and the order dismissing the petition of Wife No. 1 will be affirmed.
This Court has had before it a number of cases in which the defense of laches was asserted against the relief prayed for in bills of complaint or petitions to vacate final divorce decrees obtained in Maryland or in [***8]  a sister State and entered after a decree pro confesso was first obtained.  In those petitions or bills of complaint it was alleged that the trial court lacked jurisdiction over the subject matter because of fraud in connection with the residence requirements applicable to the plaintiff in the original divorce suit. In every decision, however, the Court has held that the factual situation necessary to support the defense of laches was not present, so that there is no holding that laches did apply although this has been strongly indicated.  See Day v. Day, 237 Md. 229, 205 A. 2d 798 (1964); Pelle v. Pelle, 229 Md. 160, 182 A. 2d 37 (1961); Connelly v. Connelly, 190 Md. 79, 57 A. 2d 276 (1948); Hinden v. Hinden, 184 Md. 575, 42 A. 2d 120 (1945); Croyle v. Croyle, 184 Md. 126, 40 A. 2d 374 (1944); and Simms v. Simms, 178 Md. 350, 13 A. 2d 326 (1940). See also Ewald v. Ewald, 167 Md. 594, 175 Atl. 464 (1934) in which this Court reversed the trial court's finding in a subsequent annulment suit involving a later marriage that the prior divorce decree was null and void in a suit in which the wife was plaintiff and she allegedly was not a resident of Maryland [***9]  when the decree pro confesso and the final divorce decree were obtained.  Judge Urner, speaking for the Court, stated:
"The question with which we are concerned in this case is whether the decree of the Circuit Court, dissolving a Maryland marriage for a cause arising in Maryland, should be nullified because additional evidence, produced twelve years later, has convinced another chancellor that the decree was erroneous in its determination of the jurisdictional fact of residence.  The record fails to present any reason which seems to us adequate for such a review and rescission of the decree thus challenged.  It was passed by a court having the power and duty to decide as to the existence of its 

 [*229]  jurisdiction over the case, and its unappealed decision of that question should not be subject to avoidance under such conditions as those which this case presents." (Page 597 of 167 Md., page 466 of 175 Atl.).
The weight of authority in the United States sustains the application of the defense of laches in suits involving attempts to set aside a divorce decree obtained by a spouse who lacked the necessary residence requirements which would give the divorce court jurisdiction [***10]  as conferred by statute.  See Norris v. Norris, 342 Mich. 83, 69 N. W. 2d 208 (1955), cert. den. 350 U.S. 903, 76 S. Ct. 182, 100 L. Ed. 793 (1956); Cook v. Cook, 167 Or. 474, 118 P. 2d 1070 (1941); Morehouse v. Morehouse, 111 S. W. 2d 831 (Tex. Civ. App. 1937); Caffall v. Caffall, 5 Utah 2d 407, 303 P. 2d 286 (1956); Swift v. Swift, 239 Ia. 62, 29 N. W. 2d 535 (1947). 17 Am. Jur. Divorce and Separation, §  513, page 609 (1957) and 27A C.J.S.  [**548]  Divorce, §  166c, pages 653-655 (1959).  See also Musgrove v. Musgrove, 213 Ga. 610, 100 S. E. 2d 577 (1957) and Attebery v. Attebery, 172 Neb. 671, 111 N. W. 2d 553 (1961) where the defense of laches was applied even though the court lacked jurisdiction over the subject matter, but had in personam jurisdiction over both parties.  On the subject generally, see Clark, "Estoppel Against Jurisdictional Attack on Decrees of Divorce", 70 Yale L.J. 45 (1960), Jacobs, "Attack on Decrees of Divorce", 34 Mich. L. Rev. 749 (1936) and Annotations; "Divorce-Relief from Default Decree", 22 A.L.R. 2d 1312 (1952); "False allegations of plaintiffs' domicile or residence in the state as ground for vacation  [***11]   of default decree of divorce", 6 A.L.R. 2d 596 (1949); "Power of court, in absence of express authority, to grant relief from judgment by default in divorce action", 157 A.L.R. 6, 60-70 (1945).
There is a strong public policy generally in sustaining the finality of judgments and decrees. This policy is of particular importance in regard to decrees divorcing parties a vinculo matrimonii as parties are remarried, have children and create new property interests in reliance upon the finality of such decrees. They must not lightly be set aside in view of the injurious consequences which would result to innocent persons.  Leatherbury v. Leatherbury, 233 Md. 344, 196 A. 2d 883 (1964). As 

 [*230]  is well stated in 3 NELSON, DIVORCE AND ANNULMENT, §  28.23, page 167 (1945):
"It is essential to the proper functioning of the courts that their adjudications attain unquestionable finality as early as possible after the period of general control of the court has passed.  In view of this, the doctrine of laches is frequently invoked to bar the questioning of a divorce decree after any considerable period of time by one who has knowledge thereof but who failed to act with [***12]  reasonable promptitude."
In Croyle v. Croyle, supra, Judge Melvin, speaking for the Court defined laches as follows:
"The very heart of the doctrine of estoppel, through laches, is that the defendant's alleged change of position for the worse must have been induced by, or resulted from, the conduct, misrepresentation or silence of the plaintiff." (Page 136 of 184 Md.; page 379 of 40 A. 2d).
Although remarriage by the plaintiff in the divorce suit and the fact of the husband's death prior to the filing of the petition to strike out the divorce decree do not preclude the first wife from attacking the divorce decree as a fraud on the court (Croyle v. Croyle, supra; Connelly v. Connelly, supra), these are factors which may be given consideration as elements in considering the necessary prejudice resulting from the unwarranted delay for the application of laches in the particular case. A case quite similar to the case at bar in this regard is Harris v. Harris, 196 F. 2d 46 (D.C. Cir. 1952) involving a challenge to the validity of a Virginia divorce decree on the ground of insufficient residence in Virginia after 13 years of delay from the time the first wife learned [***13]  of the divorce decree shortly after it was obtained, the plaintiff husband having married the second wife several months after obtaining the divorce decree and having died prior to the filing of the first wife's petition.  In sustaining the trial court's dismissal of the first wife's petition on the ground of laches, Circuit Judge Fahy stated for the United States Court of Appeals for the District of Columbia:

 [*231]  "The facts justified the court's conclusion with respect to laches. The intervening death of decedent made it more difficult for appellee to defend the Virginia proceedings insofar as their validity turned upon the critical facts regarding decedent's residence or domicile. Further, decedent's will evidenced an understanding on his part  [**549]  that appellee would be provided for as his widow.  Otherwise he might well have made other provision for her.  These factors, coupled with the long lapse of time, are adequate support for the decision." (Page 47 of 196 F. 2d).

See also McLaughlin v. McLaughlin, 199 Pa. Super. 53, 184 A. 2d 130 (1962), and Jannino v. Jannino, 234 S. C. 352, 108 S. E. 2d 572 (1959). See also Annotation at 6 A.L.R. 2d [***14]  596, 621 (1949), supra, and 3 NELSON, DIVORCE AND ANNULMENT, §  28.23, pages 167-168 (1945).
Even though Wife No. 2 married the husband shortly after the divorce decree was obtained, she continued to live with the husband for 13 years relying on that decree as establishing the validity of her marriage. Had she known of the present contention of Wife No. 1 within a reasonable time after the decree was obtained, Wife No. 2 would have had the opportunity to have determined whether, under these circumstances, she would have continued to live with the husband as husband and wife.  In our opinion the continued silence and inactivity of Wife No. 1 prejudiced Wife No. 2.
The burden of proof in establishing lack of jurisdiction because of the absence of domicile is upon the person alleging it.  Epstein v. Epstein, 193 Md. 164, 174, 66 A. 2d 381, 384 (1949). The proof of fraud must be clear and convincing.  Bachrach v. Washington United Cooperative, Inc., 181 Md. 315, 320, 29 A. 2d 822, 825 (1943).
The death of the husband prior to the filing of Wife No. 1's petition to strike the decree was prejudicial in that it removed a most important witness to the question of the husband's [***15]  residence in Maryland.  Although the evidence indicates that the husband's residence in Maryland was a "remote possibility," it was possible and the witness who could give important and material 

 [*232]  evidence is not available by reason of death.  That witness would have been available for giving testimony had Wife No. 1 asserted her position within a reasonable time. The delay of 13 years with the loss of this material witness also supported the trial court's conclusion that the petition of Wife No. 1 should be dismissed because of laches. Harris v. Harris, supra; Jannino v. Jannino, supra; 3 NELSON, DIVORCE AND ANNULMENT, §  28.24, page 170 (1945).
Order affirmed, the appellant to pay the costs.  

19 of 138 DOCUMENTS 

DUNN et al. v. MARYLAND STATE BOARD OF CENSORS 

No. 260, September Term, 1965 

Court of Appeals of Maryland 

240 Md. 249; 213 A.2d 751; 1965 Md. LEXIS 448 

October 20, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order reversed, with costs.  

HEADNOTES:

Censorship -- Motion Pictures -- Legislative Direction In Code (1957), Art. 66A, Sec. 6, That Maryland State Board Of Censors Shall Disapprove Films Which Are "Obscene" Or Tend "To Debase Or Corrupt Morals" (Even As Limited By Statutory Definitions Of Those Terms) Is So Broad As To Be Fatally At Variance With Rulings Of Supreme Court Of United States As To What State Constitutionally Can Ban -- Right And Power Of Board To Ban Films Extends Only To Motion Pictures Which Are Obscene Under Roth Test Enunciated By Supreme Court.
Censorship -- Only What Is Obscene Is Without Constitutional Protection -- Definition Of Obscenity By Supreme Court Under Roth Test.  Under the holding in Roth v. United States, 354 U.S. 476, only that which is obscene is without constitutional protection of freedom of speech and expression.  Under the Roth test material is obscene if "*** to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest * * *".  The protrayal of sex in art, literature and [***2]  scientific works is not in itself reason to deny material constitutional protection, and material which deals with sex in a manner advocating ideas, or having literary, scientific or artistic value, or any other form of social importance, may not be branded as obscene. The constitutional status of a film or other material does not turn upon a "weighing" of its social importance against its prurient appeal, for a work cannot be proscribed unless it is "utterly" without redeeming social importance.  To be obscene the material must go substantially beyond customary limits of candor and thus must deviate from society's standards of decency in the description or representation of the matters dealt with.
Censorship -- Motion Pictures -- Censor Board Did Not Meet Burden Of Showing In Court That Film Involved Here Was Obscene Under Constitutional Tests.  After it refused to license the motion picture "Lorna", the Maryland State Board of Censors was held not to have met its burden in court of proving the film to be obscene, the Board having produced no evidence whatever other than offering the film itself.  Save for the rare case where there can be no doubt that the film is obscene,  [***3]  that is, where the film "not only speaks for itself but screams for all to hear that it is obscene", the Board under Acts of 1965, ch. 598, will need more than the film alone to support its opinion in court.  This Court found that after only a viewing of the film here, it was not qualified to say that the picture was obscene under the standards laid down by the Supreme Court of the United States in Roth v. United States, 354 U.S. 476. 

SYLLABUS:

Petition by the Maryland State Board of Censors for a judicial determination as to whether a certain motion picture film submitted by John Dunn and the Wheeler Film Company is entitled to be exhibited within the State of Maryland.  From an order disapproving the film for licensing by the Board, John Dunn and the Wheeler Film Company appeal.  

COUNSEL:
William M. Nickerson, with whom were Richard C. Whiteford and Due, Whiteford, Taylor & Preston on the brief, for the appellants.
Fred Oken, Assistant Attorney General, with whom was Thomas B. Finan, Attorney General, on the brief, for the appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney, Marbury, Oppenheimer and McWilliams, JJ., and Proctor, J., Associate Judge of the Third [***4]  Judicial Circuit, specially assigned.  Hammond, J., delivered the majority opinion of the Court.  Horney, J., dissents.  Dissenting opinion at page 257, infra.  

OPINIONBY:
HAMMOND 

OPINION:

 [*251]   [**752]  The Maryland State Board of Censors refused to license the motion picture "Lorna" and then, as required by Sec. 19 of Art. 66A of the Code as reenacted by Ch. 598 of the Laws of 1965, applied to the Circuit Court of Baltimore City "*** for a judicial determination as to whether such film is obscene, or tends to debase or corrupt morals, or incite to crime, within the meaning of Section 6 hereof." Judge Prendergast viewed the film, and the next day "*** having determined upon consideration of the film, the pleadings, and the argument of counsel, 

 [*252]  that said film is in violation of the provisions of Article 66A, Section 6 * * *," ordered that the film "Lorna" be disapproved for licensing by the Board.
In its petition for judicial determination, the Board recited that it had found 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 [***5]  appeals to 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."
This phraseology would appear to be a stereotyped form which the Board believes embodies the standards of the Supreme Court as to what must be found if a film is to be held obscene. The Board made the same finding, word for word, as to the film "A Stranger Knocks," after which "Lorna" appears to have been crudely and vulgarly patterned to some significant extent, and Judge Prendergast found that film to be obscene. In Trans-Lux Distributing Corp. v. Maryland State Board of Censors, 240 Md. 98, we held that "A Stranger Knocks" is not obscene under the definition of obscenity promulgated by the Supreme Court and does not transgress the standards of Maryland's film censorship statute, assuming those standards to be constitutional and valid.
In his opinion in this case Judge Prendergast held that the provisions of Sec. 6 of Art. 66A were constitutionally valid.  "*** I think the statute that is now in force and effect meets the requirements in a line of cases decided by our highest court."  [***6]  On the facts he found the film to be (a) "*** utterly obscene and *** completely violative of the Maryland statute and of all the decisions I have read as announced by the Supreme Court of the United States"; and (b) "*** utterly without any value, scientific, social, cultural, or artistic," and concluded: "For these reasons, and because the Court has no evidence to rule to the contrary, I will enter  [**753]  an order affirming and approving the ruling of the Board * * *."
It seems too plain for serious doubt that the legislative direction 

 [*253]  in Code (1957), Art. 66A, Sec. 6, that the Board shall disapprove such films "*** as are obscene, or *** tend, *** to debase or corrupt morals * * *" (even as limited by the definitions of the terms "obscene" and "tend to debase or corrupt morals" spelled out later in Sec. 6) is so broad as to be fatally at variance with the rulings of the Supreme Court as to what the State constitutionally can ban from the public's viewing.
In the Trans-Lux case, we referred to the holding in Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, that only what is obscene is without the constitutional protection of freedom of [***7]  speech and expression, and reiterated the definition of what is obscene as spelled out in Roth and as stabilized, for the foreseeable future at least, by the decision in Jacobellis v. Ohio, 378 U.S. 184, 12 L. Ed. 2d 793. The opinion of the Court in Jacobellis, at 191, 12 L. Ed. 2d 800, said Roth had defined obscene material as follows: material is obscene if "*** to the average person, applying contemporary community standards [national standards said Justice Brennan; local standards said Chief Justice Warren in dissent with Justice Clark], the dominant theme of the material taken as a whole appeals to prurient interest * * *." Obscenity is excluded from constitutional protection only because it is "*** utterly without redeeming social importance * * *" Id. at 191, 12 L. Ed. 2d 800, and the portrayal of sex in art, literature and scientific works is not itself reason to deny material the constitutional protection of freedom of speech and press, and material dealing with sex in a manner that advocates ideas or that has literary or scientific or artistic value or any other form of social importance may not be branded as obscenity. The constitutional status [***8]  of a film, or other material, may not be made to turn on a "weighing" of its social importance against its prurient appeal, for a work cannot be proscribed unless it is "utterly" without social importance.  To be obscene, the material must go substantially beyond customary limits of candor and thus must deviate from society's standards of decency in the description or representation of matters dealt with.
In Trans-Lux, because the film was not obscene under the federal standards, we said "*** even if the Maryland standards 

 [*254]  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 * * *." We hold that the right and power of the Board to ban films as "obscene" or as tending "to debase or corrupt morals" under Sec. 6 of Art. 66A extends only to motion pictures which are obscene under the Roth test referred to and paraphrased in Trans-Lux and in this opinion.  The cases of Kingsley Int'l Pictures Corp. v. Regents of Univ. of N. Y., 360 U.S. 684, 3 L. Ed. 2d 1512, and Roth and Jacobellis, following Winters v. New York, 333 U.S. 507, 92 L. Ed. 840, and [***9]  Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 96 L. Ed. 1098, make it manifest that only material which is obscene under the Roth test can be censored or suppressed by a state, and that a state may not effectively substitute its definition of what is obscene for the Roth definition.  The Maryland definition of what tends to debase or corrupt, found in Sec. 6, is almost word for word that of the New York statute which was held unconstitutional in Kingsley.
The Maryland definition of "incite to crime" is highly suspect, if not entirely invalid, under the holding in Winters, but there is no need to rule on that point in this case because neither the Board nor Judge Prendergast made a finding that "Lorna" did incite to crime, and, although the film portrayed scenes of revolting brutality  [**754]  and violence, the commission of crime is not made appealing, profitable, desirable or commonly accepted behavior.
We think that Judge Prendergast's finding that "Lorna" should not be licensed for exhibition cannot be sustained on this record because the Board did not meet its burden of proving that the film is obscene. The Supreme Court, in striking down Maryland's censorship [***10]  law in 1965 in Freedman v. Maryland, 380 U.S. 51, 13 L. Ed. 2d 649, held that a law which required the prior submission of a film to a censor avoids constitutional infirmity only if it provides safeguards designed to obviate the dangers of a censorship system, the first of which was said to be that "*** the burden of proving [to a reviewing court] that the film is unprotected expression must rest on the censor." Id. at 58, 13 L. Ed. 2d 654. When the Legislature passed Ch. 598 of the Laws of 1965 to meet the demands of 

 [*255]  the Supreme Court and provide the requisite procedural safeguards of a valid censorship system, it amended the act amending the censorship law in Sec. 19 of Art. 66A (dealing with application to the circuit court for a judicial determination as to licensability and an appeal to this Court) to add the provision that "the burden of proving that the film should not be approved and licensed shall rest on the Board." This requirement follows the words of the statute that the circuit court shall "*** conduct a hearing, and shall in connection therewith view such film * * *" and the direction that on appeal the Court of Appeals shall also view the film.  [***11]  
In the present instance the Board did no more than offer the film; it produced no other evidence whatever.  We think it plain that save in the rare case where there could be no doubt that the film is obscene the Board will not meet the burden of persuasion imposed on it by the Constitution and the statute without offering testimony that the picture is obscene in that (a) the average person, applying community standards, would find that its dominant theme, taken as a whole, appeals to prurient interest, (b) that the film goes substantially beyond customary limits of candor in description or representation of sex or other matters dealt with, and (c) that it is subject to proscription because it is utterly without redeeming social importance considered in light of the fact that "*** sex and obscenity are not synonymous," Roth, 354 U.S. 476, 487, 1 L. Ed. 2d 1498, 1508, and the fact that material dealing with sex in a manner that advocates ideas or has literary, scientific or artistic value or any other form of social importance may not be branded as obscenity. In our view, neither the judge who may sit in the circuit court to review the action of the Board nor the judges of this [***12]  Court ordinarily would be qualified to determine whether a film exceeded these constitutional standards or tests without enlightening testimony on these points.  In "A Stranger Knocks," while the Board did not offer such testimony, the producer and would-be exhibitor of that picture did.  For example, it was shown that the United States Bureau of Customs had admitted the film as not obscene, and that it had been exhibited in twenty-three states to not less than 250,000 people without apparent harmful effects.  The philosophical background 

 [*256]  of the picture was described by its producer in an affidavit.  Favorable criticisms by experienced critics all over the country were presented.  Other experts in the field testified that the picture was not obscene.
In Yudkin v. State, 229 Md. 223, 227-28, Yudkin appealed his conviction for selling an obscene book ("Tropic of Cancer"), and we reversed because expert testimony as to the status of the book under the Roth test was excluded by the trial court.  We pointed out that allegedly obscene material speaks for itself as evidence, but that this does not mean that "other competent evidence tending to show that the book is  [***13]  not obscene should be excluded as irrelevant or immaterial." We held that testimony which should have been  [**755]  admitted included that of experts "*** who, had they been allowed to do so, would have testified that the book had literary merit, that it fell within contemporary community standards and that it would not stimulate lustful thoughts in the average reader," as well as books allowed to be sold in the community comparable to "Tropic of Cancer," a "study" or critique of the book by a novelist and critic and the fact that the Post Office Department had ruled the book to be mailable.  In Levine v. Moreland, 229 Md. 231, 236, which also dealt with "Tropic of Cancer," we said that since "*** the issue of obscenity was clearly a disputed question of fact, we agree with the appellants that the lower court should not have decided it on the motion for summary judgment." (The trial judge had ruled that after reading the book he was capable of deciding the critical questions under the Roth rule without the aid of other evidence.) We reiterated the rule that the allegedly obscene material "*** must in every case be perused and examined with care by the trier of facts [***14]  * * *," but also said:

"*** if and when a trial of the issue of obscenity takes place, both sides will, of course, have full opportunity to summon such expert and other witnesses [whose qualifications to testify as experts or skilled witnesses is a matter for the trial court initially to determine] as each may desire to testify regarding literary merit, contemporary community standards and prurient interest." Id. at 237.

 [*257]  Testimony of the type given as to "A Stranger Knocks" and offered in Yudkin and Levine as to "Tropic of Cancer" should be available to the Board as to almost every film it thinks is obscene. Save in the case of the exceptional motion picture which not only speaks for itself but screams for all to hear that it is obscene, the Board under the statute of 1965 will need more than the film to support its opinion in court.
We found the picture "Lorna," despite its implied showings of sexual intercourse, as in "A Stranger Knocks," and of female nudity to be tiresome, boring, cheap, often vulgar and sometimes revolting, but we do not feel qualified to say by virtue of a viewing of the picture only -- anymore than was Judge Prendergast,  [***15]  in our opinion -- that to the average person applying either local or national contemporary community standards the dominant theme of "Lorna" was an appeal to prurient interest, or that the picture exceeded customary limits of candor in its representations of sex or the sexual mores of the community pictured or that it was utterly without redeeming social importance or literary or artistic value. n1

n1 We were told at the argument by the appellant, without contravention by the State, that "Lorna" has been shown throughout the United States and that when an exhibitor in a midwestern state showed it, he was tried for showing an obscene motion picture and a jury of nine women and three men acquitted him.

Since the Board did not meet its burden of proving the motion picture "Lorna" to be obscene the order appealed from must be reversed.
Order reversed, with costs.  

DISSENTBY:
HORNEY 

DISSENT:

Horney, J., filed the following dissenting opinion.
There is no disagreement between the members of this Court that only material [***16]  which is obscene under the Roth-Alberts test can be censored or suppressed by the Maryland Board of Censors and that the Legislature may not by statute substitute its definition of what is obscene for the Roth-Alberts rule.  Nor is there any disagreement between us that the Board, which has the burden of producing evidence to show obscenity, ordinarily will not have met its burden by merely exhibiting a motion 

 [*258]  picture to the courts (including this Court) as the trier of facts.  But we do not agree as to the result to be reached in this case.
Since there was no evidence one way or the other (aside from the showing of the  [**756]  film) with respect to its obscenity or the lack of it or as to the relevant community standards, it is apparent to me that "Lorna," which is utterly devoid of any artistic, social, cultural or scientific value, and in which the predominantly pornographic theme was deliberately accentuated, is one of those motion pictures as to which no proof, other than the viewing of it, is required to determine that it is in fact obscene under the Roth-Alberts test.
I would affirm, or at least, remand the case for the production of other evidence [***17]  if that be deemed desirable or necessary instead of releasing it because the Board failed to take additional evidence as the statute required.  

20 of 138 DOCUMENTS 

BROWN v. WARDEN OF MARYLAND HOUSE OF CORRECTION 

App. No. 46, September Term, 1965 

Court of Appeals of Maryland 

240 Md. 710; 213 A.2d 750; 1965 Md. LEXIS 496 

October 20, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Application for leave to appeal from the Criminal Court of Baltimore; Byrnes, J.  

DISPOSITION:
Application denied.  

HEADNOTES:

Post Conviction Procedure Act -- Illegal Arrest -- Claim Of, Held Without Merit, Where There Was No Allegation That Any Fruits Of Arrest Were Used Against Petitioner At His Trial.
Post Conviction Procedure Act -- Evidence, Weight Of -- Questions As To, Are Not Proper Grounds For Granting Post Conviction Relief.  

SYLLABUS:

Wilbert Frank Brown instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.  

JUDGES:
Prescott, C. J., and Hammond, Horney, Marbury, and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*711]   [**750]  Wilbert Frank Brown, the applicant for leave to appeal from a dismissal by the lower court of his petition for post conviction relief, was convicted of petty larceny on December 4, 1964 by Judge Albert H. Blum in the Southern Part of the Municipal Court of Baltimore City.  The applicant was advised of his right to counsel, elected to proceed without counsel, and was advised of his right to appeal.  An appeal to the Criminal Court of Baltimore was filed on December 12, 1964 and counsel was [***2]  appointed by the court to represent the applicant on appeal.  A plea of not guilty was entered on the applicant's behalf.  After trial before Judge Sodaro, sitting without a jury, a verdict of guilty was rendered and the applicant was sentenced to one year in the House of Correction to run from December 12, 1964.
The applicant filed a petition under the Post Conviction Procedure Act on February 18, 1965 alleging two grounds for relief: 1) that his arrest was illegal as he was arrested without a warrant in connection with a misdemeanor which was not committed in the officers' presence and there was no probable cause for the arresting officer to believe that a felony had been committed, and 2) that the evidence upon which his conviction was based was inconclusive and uncorroborated.  The court appointed counsel to represent the applicant in connection with his petition and after a hearing Judge Byrnes denied the petition and filed a memorandum opinion setting forth his grounds for that denial.
Brown's first allegation that he was illegally arrested is without 

 [*712]  merit because he does not allege that "any 'fruits' of the arrest were used against him at his trial." Bryant  [***3]   v. Warden, 235 Md. 658, 659, 202 A. 2d 721 (1964).
The second allegation is also without merit as questions of the weight of evidence to convict are not proper grounds for granting post conviction relief.  Bailey v. Warden, 231 Md. 626, 628, 190 A. 2d 547 (1963).
Application denied.  

21 of 138 DOCUMENTS 

SMITH v. JACKSON 

No. 441, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 195; 213 A.2d 491; 1965 Md. LEXIS 439 

October 15, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Cullen, J.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

Paternity Proceedings -- Sufficient Evidence To Support Finding That Appellant Was Father Of Child Born Out Of Wedlock -- Trial Court Properly Found Claimant Had Met Burden Of Proof, By Weight Of Evidence Required In Other Civil Cases, To Establish That Appellant Was Father -- Code (1964 Supp.), Art. 16, Sec. 66F b.
Paternity Proceedings -- When Medical Tests Offered To Disprove Paternity Are Admitted In Evidence, Person Who Made Tests Must Be Present For Cross-Examination -- In the instant paternity proceeding, appellant challenged the refusal of the trial judge to permit a general practitioner to testify as to a report of a laboratory test when the maker of the test was not present.  This Court found no error for several reasons.  For the proof to be conclusive it is necessary that sterility at the time of the alleged act of intercourse be established, and no proffer was made that this was to be the proof.  The petitioner was entitled to the opportunity to cross-examine whomever had made the test.  By analogy Code (1964 Supp.), Art. 16, sec. 66 G, relating to blood [***2]  tests in paternity cases, provides that when such "tests are admitted in evidence, the laboratory technicians who made them are subject to cross-examination by all parties to the proceedings." Finally, the testimony here sought to be offered at the first hearing was admitted at an adjourned hearing.
Paternity Proceedings -- For Proof Of Defendant's Inability To Father Child To Be Conclusive, Sterility At Time Of Alleged Act Of Intercourse Must Be Established -- Testimony That Defendant Was "Relatively Infertile" Did Not Require Finding That He Was Not The Father In Face Of Other Evidence.  

SYLLABUS:

Carolyn Jackson brought a paternity proceeding against Phillip Smith, under the provisions of Code (1964 Supp.), Art. 16, sec. 66A, et seq. From an order finding Smith to be the father of a child born out of wedlock, and directing payment for the support of the child, and a counsel fee and costs, he appeals.  

COUNSEL:
Calvin Douglass, with whom was Donald G. Murray on the brief, for appellant.
No brief and no appearance for appellee.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*196]   [***3]   [**491]  This appeal is from an order of Judge Cullen in a bastardy proceeding brought and decided under the provisions of Code (1964 Supp.), Art. 16, Sec. 66A, et seq., finding  [**492]  the appellant, Smith, to be the father of a child born out of wedlock, and directing payment of $ 15.00 bi-weekly to the mother for the support of the child, and a counsel fee and costs.
The appellant challenges the sufficiency of the evidence and the refusal of Judge Cullen to admit a report of a laboratory test when the maker of the test was not present, and also argues that the opinion of a doctor that the appellant was "relatively infertile" required a finding that he was not the father of the child, despite other evidence that he was.
All of these contentions must be rejected.
The mother, Carolyn Jackson, testified as follows: That on July 18, 1961, when she had just turned eighteen, her girl friend got married to Duke Parker and after the wedding Parker introduced Carolyn to the appellant Smith, who was a policeman walking his beat on the four p.m. to midnight shift, and it was arranged that the Parkers and Carolyn would pick up Smith at 

 [*197]  his home after he had changed to [***4]  civilian clothes about midnight and "go out on the town".  The four went to several night clubs, ending at the Club Casino, where they stayed until it closed.  Carolyn had drinks of alcoholic beverages.  When they left the Club Casino, the Parkers drove Carolyn and Smith to Smith's apartment, where she had left her sweater.  The Parkers drove off without leaving their car, and Carolyn and Smith went in and she spent the night and had sexual intercourse with Smith.  She and Smith had intercourse on several occasions thereafter.  In September the doctor told Carolyn she was pregnant and almost immediately she telephoned Smith, who came to her mother's house where she lived and, when assured that Carolyn was certain that the baby was his, said he would help her with the baby. Carolyn said Smith mailed her a money order for fifteen dollars every two weeks for a time before the baby was born and, before the event, gave her forty dollars towards the eighty-dollar cost of having the child at the Provident Hospital.  She saved the envelopes in which the money had been sent and offered one in evidence.  After the baby, a girl, was born on March 31, 1962, Smith brought the child a bassinet,  [***5]  some clothes, and from time to time baby food and milk.
Mrs. Parker corroborated the fact that Smith and Carolyn went into Smith's apartment together early in the morning of July 19, 1961, as the Parkers drove off.  Carolyn's mother testified to Smith's acceptance of Carolyn's assurance that he was the baby's father, to his giving her forty dollars for the accouchement and to his bringing the bassinet, clothes and food for the baby.
Smith testified that he had driven Carolyn straight home from his home, without having gone in, when the Parkers left them in the early hours of July 19, that the few hours of that evening was the only occasion he had seen her or talked to her until after the birth of the baby, and that he had never at any time had relations with her and had never given her any money.  He did admit that the envelope introduced into evidence as bearing money from him before the child's birth bore his return address and was directed to Carolyn in his handwriting, and also admitted he had taken milk and food to the baby. His explanations of why he wrote and as to furnishing supplies for 

 [*198]  the child certainly could have been found evasive, unconvincing and unpersuasive [***6]  by the trier of fact.
Code (1964 Supp.), Art. 16, Sec. 66F b, provides that "*** the burden is upon the petitioner or complainant to establish, by the weight of evidence required in other civil cases, that the defendant is the father of the child or children in question." We are fully convinced that Judge Cullen properly could, as he did, find that the claimant here had met that burden.
Smith, in an effort to show he was sterile, offered as a witness a general practitioner of medicine, who was asked whether he had referred Mr. Smith to a medical laboratory and had thereafter received a  [**493]  report from the laboratory. Judge Cullen refused to permit the doctor to testify as to the report because he had not made the tests on Smith and the person who had was not present to show what the tests were, how they were made, nor for cross-examination. Smith's lawyer then asked for a postponement (which was later granted) in order to produce the person who made the tests, and the general practitioner was excused.
We find no error for several reasons.  For the proof to be conclusive it is necessary that sterility at the time of the alleged act of intercourse be established, Lucas  [***7]   v. Williams, 218 Md. 322, and no proffer was made that this was to be the proof.  The doctor had not made the tests sought to be relied on, and the petitioner was entitled, at the least, to the opportunity to cross-examine whomever had made the test.  See Brunson v. Director, 239 Md. 128, and by analogy Code (1964 Supp.), Art. 16, Sec. 66G, relating to blood tests in bastardy cases, which provides that such tests may be made by laboratories in this State, selected by the court, and if the tests establish definite exclusion, the reports thereof "*** shall be accepted as prima facie evidence of the results of such tests," subject to the safeguard that "when the tests are admitted in evidence, the laboratory technicians who made them are subject to cross-examination by all parties to the proceedings." Finally, the testimony sought to be offered at the first hearing was admitted at the adjourned hearing.
At the trial on October 5, 1964, after all the testimony had been concluded except for the medical testimony desired by 

 [*199]  Smith, Judge Cullen adjourned the hearing in order to afford Smith the opportunity to bring in "the man who made the examination." When the hearing [***8]  resumed ten days later on October 15, Smith offered as a witness a doctor specializing in urology and certified by the American Board of Urology who had recently tested Smith's sperm count and found it low to the point of putting him into "the relatively infertile group," by which he meant that it would be possible for Smith to be a father but unlikely -- "he falls into the group of people who would most likely be infertile, rather than those people who would most likely be fertile." n1

n1 Smith testified that he had no children although he had been married from 1946 to 1958; Carolyn testified Smith had told her he had one child by "his first wife" and that he kept a picture of the child on the dresser in his living room.

The doctor testified further that the condition of infertility he had found could come on suddenly, although usually it is a condition which exists from puberty until the end of a man's active sexual period.
Under the rules established by the Lucas case, the doctor's testimony did not require [***9]  a finding that on July 18, 1961 Smith could not have fathered a child in the face of other evidence that in all likelihood he had.
Order affirmed, with costs.  

22 of 138 DOCUMENTS 

LEE v. STATE 

No. 413, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 160; 213 A.2d 503; 1965 Md. LEXIS 433 

October 13, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Unauthorized Use of Automobile -- Sufficient Evidence To Permit Trier Of Fact To Infer Defendant Had Unlawfully Taken And Carried Away Car "Out Of Custody Or Use" Of Owner, For His "Present Use" -- Code (1957) Art. 27, Sec. 349.
Criminal Law -- Claim Of Error Where Trial Court Did Not Finally Rule On Defendant's Motion For Acquittal When It Was Made At Conclusion Of State's Case And Before Co-Defendant Testified -- Rejected -- Record Showed Counsel Was Satisfied With Court's Statement That It Would Base Ruling Made At End Of Entire Case Only On Testimony As Of Time Motion Was Made.
Criminal Law -- In Joint Trial For Unauthorized Use Of Automobile, Appellant Who Moved For Verdict Of Acquittal At Conclusion Of State's Case And Before Co-Defendant Testified In Own Behalf, Was Not Prejudiced By Ruling On Motion At End Of Whole Case -- His Counsel Agreed Ruling Could Be Deferred -- Court Explicitly Denied Motion On Basis Of State's Evidence Only -- This Evidence Clearly Indicated Guilt And Negated Possibility Of Court Being Influenced By Co-Defendant's Testimony.  

SYLLABUS:

Caril Lee was [***2]  tried jointly with Samuel Sumpter and both were found guilty of unauthorized use of an automobile by the trial court, sitting without a jury, and from the judgment entered thereon, the defendant Caril Lee appeals.  

COUNSEL:
James L. Bundy for appellant.
Jon F. Oster, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., and George J. Helinski, State's Attorney and Deputy State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*161]   [**503]  Caril Lee was indicted jointly with Samuel Sumpter on charges of larceny and unauthorized use of the automobile of a Mrs. Garner and both were found guilty of unauthorized use by Judge Harris sitting without a jury in the Criminal Court of Baltimore.
Lee on appeal claims (a) the evidence was insufficient to sustain the conviction; (b) Judge Harris erred in not finally ruling on Lee's motion for a verdict of acquittal when it was made 

 [*162]  at the conclusion of the State's case and before Sumpter testified [***3]  in his own behalf; and (c) he was prejudiced when Judge Harris, before reaching a verdict, received the testimony of the codefendant Sumpter and learned of the latter's criminal record, which included a conviction for larceny of an autmobile and one for an attempt to steal a car.  We find no merit in any of these contentions.
Mrs. Garner testified that she worked at night at the University Hospital in Baltimore and had parked her 1960 Chevrolet car on Redwood Street near the hospital at 10:50 p.m. on August 31, 1964, when she went to work, and that it was gone the next morning when she sought it to drive home.  She recovered her car in Georgetown, Delaware.  Trooper Short of the Delaware State Police testified that Lee was driving Mrs. Garner's car in Georgetown, Delaware, at about 5:00 a.m. on the morning of September 1, 1964, when he stopped him for investigation.  Lee had no operator's license, no form of identification and no money, and Sumpter, who was enjoying an alcoholically induced nap on the back seat, likewise had no way to identify himself, and no money.  Lee told Trooper Short he had borrowed the car from a Harry Walker in Baltimore.  The trooper found in the car its [***4]  registration  [**504]  card which showed the owner to be Mrs. Garner.  From this testimony there was sufficient evidence to permit the trier of facts to infer that Lee had unlawfully taken and carried away "out of the custody or use" of the owner, Mrs. Garner's car for his "present use," contrary to Code (1957), Art. 27, Sec. 349.  Anello v. State, 201 Md. 164.
After the State produced the testimony outlined above, Lee's experienced and able lawyer moved for a verdict of acquittal which Judge Harris denied at that time, suggesting that he would rule at the close of the whole case. Lee announced that he would not take the stand or offer evidence.  Sumpter then took the stand and after he had answered several preliminary questions Lee's lawyer moved the court not to consider any of Sumpter's testimony against Lee because Lee had moved for a verdict of acquittal at the close of the State's case and then rested, and the case against him must be decided in the posture in which it had ended.  Judge Harris asked Lee's counsel if he 

 [*163]  desired a ruling immediately and the reply was: "*** if the Court wants to hold its ruling until both cases are completed, fine, but I certainly [***5]  want our case determined as of the point we rested, sir." Judge Harris then said: "As of the close of Lee's case?" and counsel answered "Right" -- that he wanted the record to show "*** that the ruling will be based on that testimony alone." Judge Harris responded: "*** the ruling *** at the end of the case will be based as to Lee upon the posture of the case when Lee's case was rested." The testimony, then, shows that Lee, through his counsel, was satisfied with Judge Harris' statement that he would rule on Lee's motion based only on the testimony as of the time the motion was made.
Sumpter then continued his testimony which, among other things, revealed that he had had four prior convictions including the two automobile larceny cases.  At the end of Sumpter's testimony the court, after hearing argument, denied both Lee's and Sumpter's motions for verdicts of acquittal and added: "The motion as to Lee being denied on the basis of the evidence in the case when his case was rested."
For at least three reasons we think Lee has no basis to claim prejudice on the ground that his motion was not ruled on until the end of the whole case. First, Lee, through his counsel, agreed that [***6]  the ruling could be deferred until the end of the whole case, if it was based only on the evidence produced by the State; second, Judge Harris, at the beginning of Sumpter's testimony, said explicitly he would find Lee guilty or not guilty on the State's testimony only and at the end of the whole case he said he had done this; and third, the State's testimony so clearly indicated that Lee was guilty as to negate any inference that Judge Harris' ultimate decision as to Lee was influenced by anything revealed by Sumpter's testimony.
Judgment affirmed.  

23 of 138 DOCUMENTS 

KOLPER v. STATE *
* Opinion withdrawn by the Court January 4, 1966. 

No. 407, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 139; 1965 Md. LEXIS 430 

October 12, 1965, Decided 

SUBSEQUENT HISTORY:
 [**1]  
Motion for Rehearing Filed November 5, 1965, Opinion Withdrawn and Case Remanded for Further Proceedings January 4, 1966.  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Arrest -- Held Lawful In Instant "Storehouse Breaking" Case Where Police Had Probable Cause To Believe That A Felony Had Been Committed And That Appellant Had Committed It.
Criminal Law -- Where Arrest Was Lawful, Evidence Seized As Incident Thereto Was Admissible.
Criminal Law -- Storehouse Breaking -- Testimony of State's Witnesses Held Sufficient To Convict -- Credibility Is For Trial Judge.  

SYLLABUS:

Charles J. Kolper, Jr., was convicted in a non-jury trial of storehouse breaking and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted by Francis J. Meagher for appellant.
Submitted by Thomas B. Finan, Attorney General, Donald H. Noren, Special Attorney, Charles E. Moylan, Jr. and John Hackett, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

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

OPINIONBY:
BARNES 

OPINION:

 [**2]  
 [*140]  Gordon Louis Dorer, the proprietor and operator of the Angle Inn located at 5805 O'Donnell Street, Baltimore, securely locked the premises at approximately 1:30 A.M. on the morning of August 10, 1964.  Upon being summoned by the police, he returned to the premises at approximately 5:00 A.M. that same morning. Upon his arrival, he found that the window in the front door had been broken, the door opened and the cigarette machine lying on the sidewalk in front of the Inn.  He also discovered that the slot machine and pinball machine had been broken into, some drawers behind the bar had been rifled, a box in which he deposited sales tax money was missing, certain loose packs of cigarettes and certain six-packs of beer were missing.
Leroy Sevison, a used car dealer, whose home is located on O'Donnell Street near the Angle Inn (his home and the Angle Inn are separated by a street) had been awakened at approximately 4:00 P.M. on the morning of August 10 by the barking of his dog.  He heard a door slam, went to a window in the front of his home and observed a 1954 Chevrolet two-door, two-tone green sedan moving very slowly along the side of his home.  He noticed that the automobile [**3]  was one in which the valves were loud and which, as he testified, had "a noise all its own".  He also observed that it had a white temporary Maryland license tag but he could not see the tag number.  He saw the car door open and a person went from the car to the door of the Inn.  Shortly thereafter the door of the Inn flew open and 

 [*141]  two men carried a machine out the door, dragged the machine to the automobile, where the trunk lid was raised to receive the machine. The two men were frightened by a Standard Oil Tanker which then appeared, dropped the machine on the sidewalk and drove away in the Chevrolet automobile with its lights turned off.  Mr. Sevison observed that the machine left on the pavement was a cigarette machine. The area in front of the Inn was clearly illuminated by a street light so that Mr. Sevison could see clearly all of the action which took place.  He then called the police who arrived within a few minutes.  He gave the facts to them and gave them a description of the automobile.  The police began to search the Inn, Mr. Sevison remaining on the outside.  He heard an automobile coming up the street making the same noise he had previously heard emanating [**4]  from the 1954 Chevrolet car and called to the police "the car that was here is coming up the street now".  The police pursued the automobile in the police radio car, stopped the vehicle and apprehended the appellant, Charles J. Kolper, Jr., and Walter I. Krause who were in the automobile.
Among the items found inside the automobile were two six-packs of beer, a crowbar, a flashlight, six packs of cigarettes and two telephone books.  The back cover of one of these telephone books was missing. This missing back cover, which had been used to cover the broken window in the door of the Inn was matched with the telephone book on which the back cover was missing. The brand names and quantities of beer and cigarettes found in the automobile corresponded to the description given by Mr. Dorer.  The automobile was a 1954 Chevrolet two-door, two-tone green sedan and had a white Maryland temporary tag.
When the appellant was searched later at the Southeastern Police Station, the police found $ 7.80 in nickels and $ 9.75 in quarters in his possession.
The cigarette machine was valued at between $ 1200 and $ 1500.
The appellant and Krause were tried together before Judge Harlan in the Criminal [**5]  Court of Baltimore without a jury under an indictment charging them in the first count with storehouse breaking on which count they were found guilty and duly sentenced.  At the trial the appellant did not testify and offered 

 [*142]  no witnesses to testify in his behalf.  Kolper has appealed to this Court and urges upon us three alleged errors, as follows:
1. The appellant's arrest was unlawful.
2. The items of property taken from the automobile were the fruit of an illegal arrest and improperly admitted into evidence against him.
3. The evidence was insufficient to support the finding of guilty of the crime of storebreaking.
We have concluded that the trial court committed no error and the judgment will be affirmed.
I and II
We are of the opinion that the arrest was lawful in that the police officers had probable cause to believe that a felony had been committed and that the appellant and Krause had committed it.
In Graham v. State, 239 Md. 521, 212 A. 2d 287 (1965) we quoted with approval and applied the definition of probable cause set forth in Mulcahy v. State, 221 Md. 413, 422, 158 A. 2d 80 (1960) where it was stated that probable cause exists "where the facts [**6]  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." This is the situation in the case at bar.  The arresting officers seeing that the Inn had been broken into and a machine valued at between $ 1200 and $ 1500 as well as other property removed from it, could reasonably believe that a felonious larceny had occurred.  Indeed one of the counts in the indictment in this case was a charge of felonious larceny. Although the appellant was found not guilty on this count, it is well established that it is not necessary that a defendant be convicted of a felony to have the existence of probable cause to arrest. It is sufficient if the police had reasonable grounds to believe that the defendant was or had been engaged in a felonious act.  Synder v. State, 235 Md. 547, 201 A. 2d 785 (1964). Freedman v. State, 195 Md. 275, 73 A. 2d 476 (1950). The police had reliable information given them by an eye witness to the breaking and entry into the Inn and a specific identification of the automobile used both  [**7]  

 [*143]  by sight and by the sound of the valves in the particular car.  Mr. Sevison, as a used car dealer who himself had worked on automobile engines for years, was well qualified to identify the automobile by the sound of its motor and it was reasonable for the police to rely on this information as well as the information in regard to the year, model and color of the car and the temporary license tag.
The arrest being lawful, the goods seized as an incident to the arrest were properly admitted into evidence against the appellant.  Swartz v. State, 237 Md. 263, 205 A. 2d 803 (1965); Mulcahy v. State, supra.
We have held that when the arrest was lawful at the time it was made, the evidence seized as an incident to that arrest may be admitted against a defendant even if tried solely for a misdemeanor and the provisions of Code, Article 36, Section 5 do not prohibit the admission of such evidence.  Freedman v. State, supra.
III.
The testimony of the witnesses for the State was sufficient to sustain the conviction for storehouse breaking. Its credibility was for the trial court and we will not disturb the trial court's judgment based on the evidence unless clearly [**8]  erroneous.  Maryland Rule 886a.  Hill v. State, 231 Md. 458, 190 A. 2d 795 (1963) cert. den. 375 U.S. 861, 84 S. Ct. 127, 11 L. Ed. 2d 88 (1963).
There is no evidence to refute their testimony.  It is clear that the trial court's acceptance of this testimony was not clearly erroneous.  Cf. Dorsey v. State, 231 Md. 278, 189 A. 2d 623 (1963).
Judgment affirmed.  

24 of 138 DOCUMENTS 

CROWE and WILLISTON v. STATE 

No. 408, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 144; 213 A.2d 558; 1965 Md. LEXIS 431 

October 12, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Two appeals in one record from the Criminal Court of Baltimore; Grady, J.  

DISPOSITION:
Judgment as to Crowe affirmed.  Judgment as to Williston on the first and third counts affirmed, and on the fifth count reversed.  

HEADNOTES:

Criminal Law -- Confession By Appellant Held Not The Product Of Coercion Here -- Trial Judge Was In Best Position To Judge Credibility Of The Witnesses -- In Non-Jury Cases, Trial Judge's Determination Of Voluntariness Of Confession Will Not Be Disturbed Unless Abuse Of Discretion Is Shown -- No Such Abuse Found Here -- Trial Court Held Justified In Finding That State Met Its Burden As To Voluntariness By Introducing "Believable Persuasive Contradiction" Of Each Claim Of Threat Or Coercion.
Criminal Law -- Confessions -- Advising Appellant Of Right To Counsel Before Oral Statement Is Taken -- Record Here Failed To Indicate Whether Or Not Appellant Was So Informed -- Where There Was No Showing That Appellant Ever Requested Counsel And Confession Was Voluntary It Was Admissible And Escobedo Doctrine Did Not Control.
Criminal Law -- In State Cases, Where The Confession Is Voluntary, Legality Of The Arrest Is Immaterial.
Searches and Seizures -- Police  [***2]   Here Had Right To Arrest Appellant, Pursuant To A Valid Arrest Warrant, And In The Course Of The Arrest To Search The Person Arrested And His Surroundings -- The Mere Fact That What The Police Find In A Valid Search Does Not Relate To An Offense For Which The Person Is Being Arrested Does Not Vitiate The Seizure -- Items Seized Here Held Properly Admitted Into Evidence.
Receiving Stolen Goods -- Evidence Here Held More Than Sufficient To Convict.
Criminal Law -- Appellant Should Not Have Been Convicted And Given Separate Sentences For Breaking And Stealing Certain Property As Well As For Larceny Of The Same Property Where The Larceny Consisted Of The Same Act As The Stealing -- The Imposition Of Sentence For Breaking And Stealing Made The Sentence Imposed For Larceny Improper -- Larceny Conviction Held Reversed.  

SYLLABUS:

Lacey Wayne Crowe was convicted of receiving stolen goods and of escape from the Maryland House of Correction.  James R. Williston was convicted of breaking a storehouse with intent to take goods of a value in excess of $ 100 (first count); breaking said storehouse and taking goods of a value in excess of $ 5 (third count); and larceny of $ 72 (fifth count).  [***3]  From the judgments entered thereon, the defendants appeal.  

COUNSEL:
Richard K. Jacobsen for Lacey Wayne Crowe, one of appellants and Alan M. Wolf for James R. Williston, other appellant.
Franklin Goldstein, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Richard O. Motsay, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
MARBURY 

OPINION:

 [*145]   [**559]  On May 29, 1964, both appellants were tried in the Criminal Court of Baltimore, before Judge J. Harold Grady, without a jury, under pleas of not guilty to various charges.  The appellant 

 [*146]  Lacey Wayne Crowe, was found guilty of receiving stolen goods of the value of $ 72, and of escape from the Maryland House of Correction.  The appellant James R. Williston, was found guilty of breaking the storehouse of Catherine Beard with intent to take goods of a value in excess of $ 100 (first count); breaking said storehouse and taking goods of a value [***4]  in excess of $ 5 (third count); and larceny of $ 72 (fifth count).  Crowe was sentenced to three years in the Maryland House of Correction for receiving stolen goods and was sentenced to one year in the Maryland House of Correction for escape, with both sentences to run concurrently after completion of the sentence he was then serving.  Williston was sentenced to three years in the Maryland Correctional Institution on each count of breaking with intent to steal goods of a value in excess of $ 100 and the breaking and stealing goods of a value in excess of $ 5.  He was also sentenced to eighteen months in the Maryland Correctional Institution for larceny. All three sentences were to be concurrent and to date from April 11, 1964.  Crowe has appealed only from the judgment and sentence with respect to receiving stolen property, and Williston has appealed generally.
At about 3:00 a.m. on the morning of April 11, 1964, Sergeant Holland, accompanied by several other members of the Baltimore police force, proceeded to 1939 Hollins Street, which was the residence of a Mr. Taylor, step-father of Williston, where they had information Lacey Wayne Crowe, an escapee from the Maryland House of [***5]  Correction, was hiding.  The police officers, who had a warrant for the arrest of Crowe, were permitted by Mr. Taylor to enter the house.  He told the police that he did not know whether Crowe was in the home but granted permission to the police to conduct a search.  As the search of the house began, Sergeant Holland encountered the appellant Williston in the dining room.  While Holland questioned Williston, the other officers resumed their search of the premises for the escapee. Williston admitted that he knew Crowe and when asked if he had seen him or if he had been in the house Williston replied that he had not seen Crowe and that Crowe had not been there.  Immediately thereafter one of the other officers announced the discovery of Crowe in the basement. 

 [*147]  Officer Holland and Williston went to the basement where, in the presence of Crowe, Williston stated that he had not known that Crowe was an escapee but though he was out on parole.  At this point the officers observed in plain view, and within approximately ten feet of the place where Crowe had  [**560]  been discovered, a brown paper bag beside which were two piles of coins. Inside the brown paper bag the police [***6]  found a Catholic miraculous medal. Mr. Taylor told Sergeant Holland that neither the money nor the bag was in the basement when he went to bed at 11:30 p.m. the previous evening.  Crowe and Williston both denied ownership or knowledge of whence the money, etc., had come.  Crowe and Williston were thereupon arrested and taken to a police station where they were placed in a cellblock.
After being in custody approximately three hours, according to the testimony of Sergeant Holland, Williston sent for him and indicated that he would like to tell exactly what happened, have it reduced to writing, and sign it.  He then gave an oral statement to Sergeant Holland in which he indicated that he and Crowe went to Dubner's Restaurant (of which Catherine Beard was the proprietress) at approximately 2:30 a.m., and that he acted as a look-out while Crowe used a screwdriver to open a screen and enter the building.  According to the statement, Crowe remained in the building approximately ten minutes and came out with pockets bulging.  Crowe and Williston then went back to the Hollins Street address and went to the basement to divide the money, which they were doing when the officers came to the front [***7]  door.  At the trial, Williston testified that Sergeant Holland, during the questioning in the Sergeants' room of the police station, kicked him off his chair, as the result of which he cut his lip, threatened him, and also threatened to arrest his parents.  Sergeant Holland testified that neither he nor anyone in his presence, had used any force, violence, threats, promises or inducements in order to obtain the statement.  Upon cross-examination by counsel for Williston, Sergeant Holland denied that he had ever threatened to arrest Williston's parents, that anyone kicked Williston or his chair, that Williston had a bleeding lip, that anyone threatened to shove a flashlight down Williston's throat, or that any threats were made to Williston 

 [*148]  of any nature.  Officer Leo Barclay testified that he was present during part of the time that Williston was interrogated and that no one threatened, kicked or used any force, threats or violence, or offered any immunities or inducements in order to obtain the statement.  Officer Roland Campbell specifically denied that any of the occurrences as claimed by Williston occurred in his presence.
Sergeant Holland returned to the stand and [***8]  testified that when Williston called for him and told him orally about the breaking into of Dubner's it was the first time he knew Dubner's had been burglarized.  He further testified that after Williston told him how they got in, he went to Dubner's and made an examination of the premises, and found out from the operator of the restaurant, Mrs. Beard, that the cigarette machine, the juke box, and the cash register had been broken into.  After he came back from Dubner's he talked to Williston again briefly, and, since he had been up approximately forty-eight hours, he went home.  The following evening, at 8:45 p.m., a written statement was taken and was thereafter signed by Williston.  After hearing testimony on both sides as to the voluntariness of the oral statement, the trial judge ruled that it was voluntary and admitted it as to Williston only.  The written statement was not introduced into evidence.
At the trial, the proprietress of Dubner's Restaurant, Mrs. Beard, testified that the restaurant had been broken into on the morning of April 11, and that a total of about $ 72 had been taken.  In addition to the money, a miraculous medal which was kept in the juke box was missing.  [***9]  She identified the medal found in the Taylor basement as the one missing from the juke box.  The attorney for Crowe (not his counsel on appeal) did not object to Sergeant Holland's testimony about the brown paper bag and the piles of coins, nor did he object to their introduction into evidence.  He did object to the introduction into evidence of  [**561]  the miraculous medal, but only on the ground that Mrs. Beard did not at first mention the medal as one of the items having been taken.  The attorney for Williston objected when Sergeant Holland started to testify about the brown paper bag and the pile of coins, but did not object when any of the items were offered into evidence.

 [*149]  The attorney for Crowe moved for a judgment of acquittal at the conclusion of the State's case and at that point also moved to exclude the tangible evidence on the ground that it was illegally seized.  The trial judge refused to exclude the evidence since he found that the officers had a warrant for the arrest of Crowe, and had permission from Mr. Taylor to enter the premises.  The court further pointed out that at the time the police observed Crowe, for whom they had the warrant, they also [***10]  observed the money in his immediate presence without any additional search.  He did grant Crowe's motion for judgment of acquittal as to all counts of the indictment with regard to burglary and larceny, but denied it as to the count for receiving stolen property. The court denied Williston's motion for judgment of acquittal. Williston voluntarily chose to take the stand to testify in his own behalf.  Crowe, after being advised of his rights, decided not to testify.
On these two separate appeals Williston contends that his oral confession was inadmissible for three reasons: (1) his statement was the product of force and coercion, and therefore involuntary; (2) he was not advised as to his right to have counsel appointed for him before the statement was taken; and (3) his arrest was illegal.  Both appellants raise the point that the coins and the religious medal were inadmissible because their discovery was the product of an illegal search and seizure. Additionally, Crowe claims there was insufficient evidence to convict him of receiving stolen goods.
We find no merit in Williston's first contention that the confession was a product of coercion and was thus inadmissible against [***11]  him.  The trial judge heard the testimony of Williston, Sergeant Holland, and of the other officers who testified, as to the voluntariness of the statement.  He was in the best position to judge the credibility of the witnesses.  It was uncontroverted that Williston lied to Sergeant Holland when he was first asked if Crowe was in the Taylor home.  This certainly could have been a strong factor in the judge's determination of Williston's credibility. On numerous occasions this Court has held that where the trial judge sits without a jury, his determination as to whether a statement is freely and voluntarily given will not be disturbed on appeal in the absence of a showing of abuse of 

 [*150]  discretion. Oakley, Etc. v. State, 238 Md. 48, 207 A. 2d 472; Abbott v. State, 231 Md. 462, 190 A. 2d 797; Bryant v. State, 229 Md. 531, 185 A. 2d 190. Cf. Md. Rule 886 a.  We find no such abuse of discretion in the instant case.  The court was clearly justified in its determination that the State had met its burden of proof as to the voluntariness of the statement by introducing "believable, persuasive contradiction" of each claim of threat or coercion. Mefford and Blackburn  [***12]   v. State, 235 Md. 497, 201 A. 2d 824; Oakley, Etc. v. State, supra.
Equally without merit is Williston's next contention, which is based on the fact that he was not advised of his right to have an attorney appointed for him until after his oral statement had been taken.  There is nothing in the record before us to indicate whether or not he was so informed.  Appellant's position appears to be that any confession is inadmissible if a defendant is without counsel prior to the time a statement is obtained.  Even assuming that this point has been properly preserved for appeal, this position is patently untenable.  Nowhere in the brief or in the record before us is there any indication that Williston ever requested to be allowed to consult counsel.  This Court has repeatedly held that where there is no evidence that a request for a lawyer  [**562]  is made, the landmark case of Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, does not control, and if the confession is voluntary it may be admitted into evidence.  Johnson v. State, 238 Md. 140, 207 A. 2d 643; Swartz v. State, 237 Md. 263, 265, 205 A. 2d 803; Anderson v. State, 237 Md. 45, 205 A. 2d 281; Mefford  [***13]   and Blackburn v. State, supra; Green v. State, 236 Md. 334, 203 A. 2d 870.
Williston thirdly claimed that the confession was the product of an illegal arrest and was thus inadmissible under the doctrine of Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441. However, it is not necessary that this Court find that the arrest was lawful in order to sustain the admission into evidence of his confession. We have held that the doctrine of Wong Sun was not intended to, and does not, control prosecutions in state courts and that if the confession is voluntary, it is immaterial that the arrest was illegal.  Mefford and Blackburn v. State, supra, pp. 511-12 of 235 Md., and cases cited.  Moreover, before 

 [*151]  the officers found Crowe, Williston admitted he knew Crowe but denied his presence in the house.  Therefore, the officers had every reason to believe that Williston was in the process of aiding and assisting Crowe in his escape and in his attempt to avoid recapture, a misdemeanor, in violation of Code (1957, 1964 Cum. Supp.), Article 27, Section 139, committed in his presence.
Williston and Crowe both contended that it was reversible error for the trial court [***14]  to admit into evidence the two piles of coins and the miraculous medal because the search of the Taylor home was unreasonable.  This contention must be rejected because the police had every right to arrest Crowe, pursuant to a valid arrest warrant, and in the course of arrest to search the person arrested and his immediate surroundings.  Knotts v. State, 237 Md. 417, 421, 207 A. 2d 100 (misdemeanor in presence); Davis v. State, 236 Md. 389, 204 A. 2d 76 (probable cause in a felony case); Ferguson v. State, 236 Md. 148, 156-57, 202 A. 2d 758 (misdemeanor in presence); Braxton v. State, 234 Md. 1, 6, 197 A. 2d 841 (misdemeanor in presence).  Crowe's position is that the goods which were seized in such a search of the immediate surroundings must either relate to the crime being investigated or must be the kind of articles the possession of which constitutes a crime.  The mere fact that what the police find in a valid search relates not to an offense for which a person is being arrested does not vitiate the seizure. Knotts v. State, supra; Swartz v. State, supra; Cannon v. State, 235 Md. 133, 137, 200 A. 2d 919; Braxton v. State, supra. In the case of Jenkins  [***15]   v. State, 232 Md. 529, 194 A. 2d 618, the items seized were both unconnected with the offense for which the defendant was arrested and not the type of goods the mere possession of which would be illegal.  On the record before us the trial court was correct in admitting into evidence the items seized.
We find no merit in Crowe's contention that the evidence was insufficient to justify his being found guilty of receiving stolen goods. Although the State conceded that the statement of Williston was not admitted into evidence against Crowe, nevertheless under the case law of this State the evidence was more than sufficient to support the trial judge's finding that 

 [*152]  Crowe was guilty of receiving stolen property. McCray v. State, 236 Md. 9, 202 A. 2d 320; Brooks v. State, 235 Md. 23, 31-32, 200 A. 2d 177; Brown v. State, 232 Md. 162, 192 A. 2d 110; Jordan v. State, 219 Md. 36, 148 A. 2d 292. The uncontradicted evidence that Crowe, an escapee from the Maryland House of Correction, was hiding in the basement in the home of an acquaintance, in close proximity to the money and that no one testified that the money was already there when he entered the basement,  [***16]  or that someone else brought the money into the basement  [**563]  while he was there, enabled the trial court to draw the inference that he was in actual possession of the recently stolen money.  The fact that the money was beside the paper bag and not inside the paper bag, and was divided into two piles, permitted the inference that the money had very recently been in the process of being counted for the purpose of division even without the utilization of Williston's oral statement which confirmed this fact.
The trial court in applying the doctrine recognized in McCray v. State, Brown v. State, and Jordan v. State, all supra, gave Crowe the benefit of any doubt the court might have had as to his breaking and entering Dubner's and, therefore, granted the motion for judgment of acquittal as to the more serious counts of the indictment and found him guilty of the lesser charge of receiving stolen property.
Williston was charged with breaking and stealing certain property and with the larceny of the same property in separate counts, and has appealed generally, as noted above.  We think he should not have been convicted and given separate sentences for breaking and  [***17]   stealing under count three, as well as for larceny under count five, in a case such as this where the larceny consists of the same act as the stealing charged in the third count.  The imposition of sentence for breaking and stealing made the sentence imposed for larceny improper.  Tucker v. State, 237 Md. 422, 206 A. 2d 691; Fabian v. State, 235 Md. 306, 313-14, 201 A. 2d 511; Young v. State, 220 Md. 95, 101, 151 A. 2d 140. For that reason we will reverse the judgment as to Williston on the fifth count, although the length of the sentence 

 [*153]  is not affected, but affirm it as to the first and third counts; and as to Crowe the judgment will be affirmed.
Judgment as to Crowe affirmed.  Judgment as to Williston on the first and third counts affirmed, and on the fifth count reversed.  

25 of 138 DOCUMENTS 

HOWARD v. STATE 

No. 415, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 699; 213 A.2d 288; 1965 Md. LEXIS 486 

September 23, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Attempt To Commit Storehouse Breaking With Intent To Steal Goods And Chattels Valued At $ 100 Or More -- Non-Jury Case -- Evidence Held Clearly Sufficient To Permit Trier Of Facts To Infer Intent To Steal Requisite $ 100 Or More -- Amount Or Value Of What Is Intended To Be Stolen Is Often A Matter Of Inference.
Criminal Law -- Court-Appointed Trial Counsel -- Claim Of Inadequate Representation By, Because Of Counsel's Failure To Object To Leading Questions And To Conclusions Drawn By Witnesses -- Nothing To Show Objection To Representation During Trial, And Point Could Not Be Raised For First Time On Appeal -- In Any Event, Defendant Made No Specifications As To His Contention, And Did Not Indicate In What Manner He Was Prejudiced -- Competency Of Counsel Is Not Necessarily Concomitant With Frequency Of His Objections.
Criminal Law -- Trial Counsel -- Mere Tactical Errors Of, Do Not Amount, Per Se, To Inadequate Representation.
Criminal Law -- Trial Counsel -- Nothing To Support Bald Allegation That Court-Appointed Counsel Was Overwhelmed Upon Date Of Trial By  [***2]   Newly Discovered Evidence.  

SYLLABUS:

Alvin L. Howard was convicted in a non-jury trial of attempting to commit a storehouse breaking with intent to steal goods and chattels valued at $ 100 or more, and from the judgment entered thereon, he appeals.  

COUNSEL:
William D. Hooper, Jr., for the appellant.
David T. Mason, 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:
Prescott, C. J., and Hammond, Horney, Marbury, Oppenheimer and McWilliams, JJ., and Proctor, J., Associate Judge of the Third Judicial Circuit, specially assigned.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*700]   [**288]  Appellant, Alvin L. Howard, with codefendant Samuel Thomas, was tried by Judge Harlan without a jury, in the Criminal Court of Baltimore, and found guilty of attempt to commit a storehouse breaking with the intent to steal goods and chattels of the value of $ 100 or more.  Howard was sentenced to four years in the Maryland Correctional Institution for Men.
 [**289]  On October 2, 1964, Officer Jerome Bucolla of the Baltimore City [***3]  police saw appellant and Thomas tampering with the door of Quality Poultry, Inc., located at 217 South Hanover Street, Baltimore, Maryland.  When the officer ordered the men to step aside he observed a crowbar wedged between the door and the hasp of the lock.  In response to questioning by Officer Bucolla the appellant stated that he and Thomas, who was employed by Quality Poultry, Inc., had gone to look for a place to break into because he needed money to get back to his army base.  At the trial, the president of Quality Poultry, Inc. testified that the building, into which the appellant sought entrance, contained equipment and poultry worth thousands of dollars.
On appeal, the appellant claims that the State presented insufficient evidence to establish an intent to steal goods of the value of $ 100 or more, as required by Code (1964 Cum. Supp.), Article 27, Section 32, under which he was charged.  We do not agree.  This Court has held on many occasions that the amount or value of what is intended to be stolen is often a matter of inference.  Pearre v. State, 237 Md. 622, 206 A. 2d 249; Putnam v. State, 234 Md. 537, 200 A. 2d 59, and cases cited.  The 

 [*701]  evidence [***4]  in this case was clearly sufficient to permit the trier of fact to infer that appellant intended to steal the requisite $ 100 or more.
Additionally, the appellant contends that he was not adequately represented by his court appointed counsel (who was not his counsel on appeal) because of the latter's failure to object to leading questions propounded by the State and to conclusions drawn by the witnesses.  There is nothing in the record to show that Howard objected to his representation during the trial.  This point can not be raised for the first time here.  Maryland Rule 885; Brown v. State, 237 Md. 492, 207 A. 2d 103; Stevens v. State, 230 Md. 47, 185 A. 2d 194. In any event, appellant does not specify which questions were leading, which answers were conclusions, or in what manner he was prejudiced by his attorney's failure to object. Competency of counsel is not necessarily concomitant with the frequency of his objections.  Assuming that certain objections should have been made, mere tactical errors of trial counsel do not amount, per se, to inadequate representation.  Brown v. State, supra; Greene v. State, 233 Md. 274, 196 A. 2d 454. Appellant also argues that [***5]  he did not have the benefit of competent counsel because his appointed attorney was overwhelmed on the date of the trial by newly discovered evidence as to the true identity and the extensive criminal record of his codefendant. A search of the record reveals nothing which would support this bald allegation.
Judgment affirmed.  

26 of 138 DOCUMENTS 

CAMPBELL v. STATE 

No. 305, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 59; 212 A.2d 747; 1965 Md. LEXIS 423 

August 23, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Confessions -- Oral -- Contention That Such Confessions Should Be Excluded Because Of Inherent Untrust-worthiness And Unreliability, Rejected -- Admissible If Freely And Voluntarily Given -- Judgment Of Trial Court Upon The Evidence Will Not Be Reversed Unless Clearly Erroneous -- Escobedo Not Apposite To Facts Of This Case.
Criminal Law -- Confession -- Oral -- Claim Of Involuntariness Because Made After Pain-Deadening Drug Was Administered To Appellant In Hospital For Treatment Of Gunshot Wound In Mouth, Rejected -- Appellant's Testimony That Drug Was Given Was Not Contradicted But There Was No Testimony As To Effect Of Drug, If Any, Upon Recipient's Will -- Thus, Even If Appellant Was Under Sedation, Statement May Be Admitted Into Evidence If It Was In Fact Voluntary.
Criminal Law -- Attempted Burglary -- Evidence Given By Owner-Operator Of Premises And Confession Were Sufficient To Sustain Conviction.  

SYLLABUS:

Norman Anthony Campbell was convicted of attempted burglary and of being a rogue and vagabond by the trial court, sitting without a jury, and from the judgment [***2]  entered thereon, he appeals.  

COUNSEL:
William O. Goldstein, with whom was David Kimmelman on the brief, for appellant.
Julius A. Romano, Assistant Attorney General, with whom was 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 Horney, Marbury, Oppenheimer and Barnes, JJ.  Barnes, J., delivered the opinion of the Court.  

OPINIONBY:
BARNES 

OPINION:

 [*60]   [**748]  Norman Anthony Campbell, the appellant, was found guilty by the Criminal Court of Baltimore on both counts of a two-count indictment charging him with attempted burglary (count 1) and with being a rogue and vagabond (count 2); he was sentenced to serve eighteen months in the House of Correction on the first count, and two years, on the second count, both sentences to be served concurrently, and both to commence at the expiration of a sentence Campbell is now serving.  The appellant contends that the evidence was insufficient to sustain the conviction on the attempted burglary count, and that the trial court erred in admitting an oral confession made by the appellant, for several reasons to be considered [***3]  later.
Rocco's Sandwich Carry-Out Shop is located at 1217 Laurens Street, near the intersection with Carey Street, in Baltimore City, Maryland, and is owned and operated by one William Harris.  On the morning of August 17, 1963, Mr. Harris closed the sandwich shop at 2:30 A.M. and prepared to retire for the night.  Harris slept on a cot in the back room of the establishment; this cot was six or seven feet from a window which was raised for ventilation and which contained wire screening.  Harris had just begun to doze, with his trousers on and with a .25 caliber Baretta automatic pistol in his trouser pocket, as was his custom, when he heard a "ripping" sound against the 

 [*61]  window screen.  Within a short time someone pulled away the screen and began to climb into the window. When the intruder had pushed his head and upper body through the window, Harris removed the pistol from his trouser pocket, aimed and fired it at him.  The intruder hastily withdrew; Harris quickly arose from his cot and ran into the street. Although he never was able to identify the man's face, Harris described the intruder to the police as a colored male, weighing from 150 to 170 pounds, wearing blue [***4]  jeans and a short sleeve shirt.  Also, he observed the man running down the street in a crouched position, holding his face in his hands.
Officer Joseph Brown arrived at the sandwich shop shortly after 4:25 A.M. in response to a call by Mr. Harris to the Baltimore City Police Department.  Within a short time Officer Brown had assembled all the information which Harris could give him, made a tour of the immediate area, and departed.  At 5:40 A.M.  Officer Brown was instructed to report to University Hospital,  [**749]  some eighteen blocks away (a five minute automobile ride at that hour of the morning) to investigate a report that a man had just been admitted there with gunshot wounds. At the Hospital, Officer Brown and Sergeant Francis Earhardt encountered the appellant, Campbell, on the second floor, lying on a cot in the hall just outside the door to the X-ray room, in a white hospital gown.  According to Brown and Earhardt, the man's lip was somewhat puffed up, but he was conscious, talked coherently -- though with some effort -- and appeared to be in no pain.  Brown testified that he inquired of an intern at the hospital if it was all right for Brown to talk to the injured [***5]  man and that the intern indicated that it would be all right.  Brown approached the patient and asked, "How did you get shot?"; Campbell, according to both officers, replied, "I might as well tell you, I got shot at Laurens and Carey, breaking in the restaurant."
Appellant's counsel argues that Campbell's confession, even if voluntary should nonetheless be excluded because it was oral.  Oral confessions, he urges, are inherently untrustworthy and unreliable.
The Maryland law is well established to the contrary.  In 

 [*62]  Wells v. State, 236 Md. 381, 203 A. 2d 912 (1964), Judge Horney, for the Court, summarized the Maryland law in this regard as follows:
"The cases make it clear that oral as well as written confessions, if freely and voluntarily given, are admissible, as evidence.  See among others, Cooper v. State, 205 Md. 162, 106 A. 2d 129 (1954), cert. den. 348 U.S. 896 (1954); Felkner v. State, 218 Md. 300, 146 A. 2d 424 (1958); Hall v. State, 223 Md. 158, 162 A. 2d 751 (1960); Glaros v. State, 223 Md. 272, 164 A. 2d 461 (1960); Bagley v. State, 232 Md. 86, 192 A. 2d 53 (1963). And the fact that a confession is oral does not impose on the [***6]  State an additional burden to prove its voluntary character.  Williams v. State, 231 Md. 83, 188 A. 2d 543 (1963); Gault v. State, 231 Md. 78, 188 A. 2d 539 (1963). (p. 386 of 236 Md., p. 915 of 203 A. 2d).
The appellant denied that he made the confession because of the severe damage to his mouth and teeth. The trial court, however, believed the testimony of Officer Brown and Sergeant Earhardt in regard to the making of the oral confession, rather than that of the appellant and it cannot be said that he was clearly erroneous in so doing.  We have stated many times that in a non-jury case, we will not reverse the judgment of the trial court upon the evidence unless clearly in error, and due regard will be given the opportunity of the lower court to judge the credibility of the witnesses.  Maryland Rule 886 a.  Johns v. Director, 239 Md. 411, 211 A. 2d 751 (1965).
The decision of the U. S. Supreme Court in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) is not apposite to the facts of this case.  See Mefford v. State, 235 Md. 497, 201 A. 2d 824 (1964), cert. den. 380 U.S. 937 (1965); Cowan v. State, 238 Md. 433, 436, 209 A. 2d [***7]  552, 554 (1964); Parker v. Warden, 236 Md. 236, 203 A. 2d 418 (1964); Green v. State, 236 Md. 334, 203 A. 2d 870 (1964); McCoy v. State, 236 Md. 632, 204 A. 2d 565 (1964); Wilkins v. State, 237 Md. 617, 205 A. 2d 593 (1964); and Ramsey v. 

 [*63]  State, 239 Md. 561, 212 A. 2d 319 (1965). As Chief Judge Prescott, for the Court aptly stated in Ramsey:
"[T]he appellant claims his confession was inadmissible, relying upon Escobedo v. Illinois, 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  [**750]  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 [***8]  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." (at p. 565 of 239 Md.)

Substantially all of the above mentioned cases are then cited with approval.
The final contention is that the statement given to the police is involuntary because made under the influence of a paindeadening drug, administered by the hospital authorities upon Campbell's admission to the University Hospital.  While there is no testimony from any of the hospital staff as to the injection of any drug into Campbells' bloodstream, or the effects, if any, upon the recipient's will, Campbell's testimony that such a drug was administered was not contradicted or impeached.  In the vast majority of jurisdictions, however, this circumstance would not preclude a truly voluntary statement, as a matter of law.  See Annotation, Use or administration of drugs or narcotics as affecting admissibility of confession, 69 A.L.R. 2d 384 (1960). 

 [*64]  The Maryland position [***9]  was recently stated by Judge Marbury for the Court in Bryant v. State, 229 Md. 531, 535, 185 A. 2d 190 (1962), as follows:
"The appellant's counsel did elicit from the witness the fact that the appellant was probably under the influence of narcotics at the time of the confession, but this does not of itself make the confession not free and voluntary."

Cf. McClearly v. State, 122 Md. 394, 89 A. 1100 (1914); Griffith v. Rhay, 177 F. Supp. 386 (D.E.D. Wash. 1959); People v. Sanchez, 12 Cal. Rptr. 906 (Dist. Ct. App. 1961); State v. Wade, 40 N. J. 27, 190 A. 2d 657 (1963). Nothing in Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), reversing on other grounds 276 F. 2d 324 (C.A. 7, 1960) compels a contrary conclusion.  There, Chief Justice Warren said "Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence.  If an individual's 'will was overborne' or if his confession was not 'the product of a rational intellect and a free will,' his confession is inadmissible because coerced.  These standards are applicable whether a confession is the product of physical intimidation [***10]  or psychological pressure and, of course, are equally applicable to a drug-induced statement." (p. 307 of 372 U.S.).  Thus, even if Campbell's statement were made at a time while he was under sedation (and there is no suggestion that the statement here was caused by the drug -- i.e., it was not a "truth serum" as in Townsend), it may still be admitted into evidence if in fact it was voluntary.  Again, since Campbell's position has consistently been that no admission or confession was ever made, due to the wounds to his teeth and mouth, the relevance of this approach on his part is not apparent.
In our opinion the evidence of Harris and the oral confession of the appellant were sufficient to sustain the conviction on the attempted burglary count.
Since the sufficiency of the evidence to sustain the finding of being a rogue and vagabond (and for which the longer of the two sentences was imposed) has not been  [**751]  challenged, it is 

 [*65]  not necessary to discuss this conviction.  Cf. Pointer v. State, 238 Md. 23, 207 A. 2d 611 (1965); Shaney v. State, 236 Md. 636, 204 A. 2d 682 (1964).
Judgments affirmed.  

27 of 138 DOCUMENTS 

ROSE v. STATE 

No. 392, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 65; 212 A.2d 742; 1965 Md. LEXIS 424 

August 23, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Evidence -- Criminal Case -- Hearsay Statement -- Held Not Prejudicial And Harmless Error At Most Under Circumstances Here -- No Objection Made To Subsequent Testimony Of Witness.  In the present larceny case, where a police officer testified over objection upon the ground that it was hearsay, that it had been "learned from a series of people" that the defendant was a frequent visitor to an apartment, this Court held that even if it assumed that the apartment referred to was that of the victim of the crime, the statement was not prejudicial to the defendant because it did not suggest that he had been guilty of any misconduct upon the prior visits.  The statement was merely preliminary in nature and gave only one of the steps in the investigation leading ultimately to the witness whose testimony resulted in the conviction.  It did not injure the defendant and at most was harmless error. While it was claimed that the objection to the statement was sufficient to raise an objection to the later testimony of the officer, the Court held that under the circumstances here no issue was preserved [***2]  upon appeal with respect to the following testimony.  There was no objection made to the subsequent testimony, which was not prejudicial to the defendant in any event, nor any indication by counsel that the objection made to the statement discussed above also was made to subsequent testimony.  To preserve an issue upon appeal with respect to the admissibility of evidence, generally there must be an objection made to the question eliciting the allegedly objectionable answer.
Larceny -- Non-Jury Case -- Evidence Held Sufficient To Convict.  The testimony in the present larceny case was held to be sufficient to justify the trial court in finding that the defendant was in possession of the stolen goods involved soon after the theft, and in the absence of a reasonable explanation as to how he came into such possession, the trial court could draw the inference (as it did) that he had stolen the objects.  While the defendant argued that his possession was not exclusive, the Court further held that the testimony of one of the witnesses could reasonably have been taken by the trial court to indicate that he had exclusive possession. Nor did the Court find the testimony of this [***3]  witness to be so "improbable" that it should not have been accepted by the trial court.  Consequently the finding of the trial court that the defendant was guilty of larceny was not clearly erroneous and was supported by the evidence.  

SYLLABUS:

James Raphael Rose was convicted of larceny, by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
David S. Cordish for the appellant.
John C. Cooper, III, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Robert F. Sweeney, Assistant Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Stanley S. Cohen, Assistant State's Attorney, on the brief, for the appellee.  

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

OPINIONBY:
BARNES 

OPINION:

 [*66]   [**743]  The appellant, James Raphael Rose, a resident of Baltimore City, was indicted by the grand jury on four counts: 1) for burglary, in the night time, on June 12, 1964 of the dwelling of Johanna Ciocconardi at 1745 East Pratt Street; 2) for being a rogue and vagabond in violation of Code, Art. 27, Sec. 

 [*67]  490; 3)  [***4]  larceny of one lady's yellow gold diamond cocktail ring valued at $ 500.00, a gold wedding ring valued at $ 35.00, a gold wristwatch valued at $ 80.00, a Polaroid Land Camera, valued at $ 100.00, a brown alligator make-up case valued at $ 250.00, a portable typewriter, valued at $ 70.00 and two leather wallets; and, 4) receiving the stolen goods mentioned in count 3.  Judge Harlan, sitting without a jury in the Criminal Court of Baltimore, found the appellant guilty on count 3 and not guilty on the other three counts.  A sentence of three years in the Maryland Correctional Institution was imposed.
The appellant was arrested on June 14, 1964 in connection with the investigation of a stolen automobile.  After his arrest, the police investigated a burglary at 1745 East Pratt Street.  Neither Mrs. Ciocconardi nor her husband heard the thief enter their second floor apartment and steal the personal property mentioned in count 3 of the indictment.  Mrs. Ciocconardi testified in regard to the objects lost and their value.
The principal witness for the State was Mrs. Bonnie Meekins, sister of Douglas Sutton.  During the summer of 1964 -- "it could have been" the month of June -- Sutton and [***5]  Rose came to her home.  Speaking of Rose, she testified:
"A. He came in the house with my brother, Douglas and told me that he had a ring and an overnight case that belonged to his girl friend and they needed twenty dollars. He wants to sell it.  I told him all I had was ten dollars. So I give him ten dollars for it.
Q. What did he give you for the ten dollars?
A. A ring and overnight case."
The ring and overnight case were three weeks later identified as the property of Mrs. Ciocconardi and were taken into custody by the police.
On cross-examination, Mrs. Meekins testified, in reply to the question: "Isn't it a fact you actually made this transaction with your brother?  'No.  Him and Jimmy Rose, both.'" She then testified that her brother was carrying the overnight (make-up) case and Rose was carrying the ring. She gave the money to Rose.  She could not recall which of the two told her how much was wanted for the items but she did recall that 

 [*68]  Rose told her "they belonged to his girl friend; he needed the money."
Officer Joseph Kelly, after testifying in regard to the investigation of the stolen car in which Rose was arrested, stated:
"A. After we took [***6]  the report we learned from a series of people throughout the neighborhood that James Rose and Doug Sutton were frequent visitors of the apartment --"
 [**744]  At this point, counsel for Rose stated, "Objection, your Honor." The trial court overruled the objection.  There were no further objections to the testimony of Officer Kelly.
The appellant Rose did not testify at the trial in his own defense.  His mother and his girl friend testified to an alibi; but no testimony was given to explain how the stolen objects came into Rose's possession.
The questions raised by the appellant in this appeal may be summarized as follows:
1. Was the appellant prejudiced by the admission of certain hearsay testimony given at the trial?
2. Was there sufficient evidence on which the trial court could properly arrive at a verdict of guilty on count 3?
In our opinion, there was no prejudice to the appellant by the admission of the hearsay evidence and there was sufficient evidence to support the trial court's verdict of guilty on count 3.
I.
In regard to the hearsay statement of Officer Kelly, it should first be pointed out that the apartment referred to was not stated to be the apartment [***7]  of Mrs. Ciocconardi.  Officer Kelly was interrupted by the objection of counsel before completing the statement.  Even assuming, arguendo, that the apartment referred to was that of the victim, the statement was not prejudicial as it did not suggest that Rose had been guilty of any misconduct on the prior visits.  This statement was merely preliminary and only gave one of the steps in the investigation leading ultimately to the witness, Mrs. Meekins, whose testimony resulted in the conviction of the appellant on count 3.  It did not injure the appellant and, at the most, was harmless 

 [*69]  error. See Hopkins v. State, 193 Md. 489, 499-500, 69 A. 2d 456 (1950), appeal dismissed, 339 U.S. 940, 70 S. Ct. 797, 94 L. Ed. 1357 (1950).
Counsel for the appellant in this Court suggests that the objection of counsel in the trial court, quoted above, was sufficient to raise an objection (even though unstated) to Officer Kelly's testimony which followed, but we cannot agree with this contention.  To preserve an issue on appeal in regard to the admissibility of evidence, generally speaking there must be an objection made to the question eliciting the allegedly objectionable answer.  [***8]  Madison v. State, 200 Md. 1, 14, 87 A. 2d 593 (1952); Davis v. State, 189 Md. 269, 55 A. 2d 702 (1947).
Under the provisions of Maryland Rule 885, we will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court.  This Rule applies to criminal cases as well as to civil cases.  Kares v. State, 215 Md. 396, 137 A. 2d 712 (1958). See Davis v. State, supra.
If counsel desires to preserve an objection to a line of testimony, this must be stated to the trial court and a continuing objection indicated.  This is the effect of Maryland Rule 522.  As Judge Prescott, for the Court, aptly pointed out in the State Roads Commission v. Bare, 220 Md. 91, 94, 151 A. 2d 154 (1959):
"Rule 522 d 2 reads that '[e]very 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.' The committee's note states: 'Counsel are cautioned that in the light of the Court of Appeals construction of its former Rule 17, which is the [***9]  foundation for Rule 522, a ruling of the court must be obtained upon each objection, in order to lay the proper foundation for an appeal.' Generally speaking, specific objection should be made to each question propounded, if the answer thereto is claimed to be inadmissible."
 [**745]  As already indicated, there was no objection made to any 

 [*70]  of Officer Kelly's testimony subsequent to the objection quoted above and there was no indication by counsel for Rose that the objection was made to the subsequent testimony.  Under these circumstances no issue is preserved on appeal in regard to that testimony.  It may be added, however, that, in our opinion, the subsequent testimony of Officer Kelly was not prejudicial to Rose in any event.
II.
In regard to the sufficiency of the evidence to justify a conviction on count 3, it should be pointed out that Rose does not dispute that the ring and overnight case were among the items stolen from the victim.  The testimony of Mrs. Meekins was, in our opinion, quite sufficient to justify the trial court in finding that Rose was in possession of the stolen goods soon after the theft and, in the absence of a reasonable explanation of [***10]  how Rose came into the possession of the stolen goods, the trial court could draw the inference (as it did) that Rose had stolen the objects.  As Judge Hammond, for the Court, stated in Felkner v. State, 218 Md. 300, 305, 146 A. 2d 424, 428 (1958):
"The possessor of stolen goods soon after the theft must give a reasonable explanation of how he came into possession or face the inference that he is the thief."
Counsel for the appellant seeks to distinguish the case at bar from the general rule by arguing that Rose's possession of the stolen objects was not exclusive, but the objects were in the possession of two persons without evidence of concert of action between them, relying on Frazier v. State of Texas, 88 Tex. Crim. 411, 227 S.W. 324 (1921) and 52 C.J.S. Larceny, Sec. 107 at page 929, to indicate that under these circumstances the general rule does not apply.
In our opinion, Mrs. Meekins' testimony could reasonably be taken by the trial court to indicate that Rose had the exclusive possession of the stolen objects.  They were allegedly the property of his girl friend. He needed the money.  He received the money.  For the ten dollars, he turned [***11]  over the ring and overnight case to Mrs. Meekins.  Such testimony of Mrs. Meekins which might be said to indicate the possible possession of 

 [*71]  her brother also, would imply a concert of action between Rose and the brother and this would distinguish the case at bar from the Frazier case.  We do not reach the question of whether our decision in Felkner v. State, supra, is inconsistent with the decision in Frazier v. State of Texas, supra, as suggested by counsel for the State.
The trial judge indicated that he did not believe the testimony in regard to the purported alibi.
Counsel for the appellant also urges that the testimony of Mrs. Meekins is "improbable" and should not have been accepted by the trial court.  As we stated in Jacobs v. State, 238 Md. 648, 650, 210 A. 2d 722, 723-724 (1964):
"*** [W]here the case is tried before the trial court without a jury the trial court's 'judgment will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.' Maryland Rule 886 (a)." See also Wesbecker v. State, 240 Md. 41, 212 A. 2d 737 (1965). [***12]  
It is clear to us that the findings of the trial court were not clearly erroneous, but were supported by the evidence.
Judgment affirmed.  

28 of 138 DOCUMENTS 

GOOD v. STATE 

No. 465, September Term, 1964 

Court of Appeals of Maryland 

240 Md. 1; 212 A.2d 487; 1965 Md. LEXIS 414 

August 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Three appeals in one record from the Circuit Court for Prince George's County; Powers, J.  

DISPOSITION:
Orders affirmed, with costs.  

HEADNOTES:

Equity -- Courts -- Jurisdiction -- Petition For Relief From Conviction Of Violating Liquor Laws -- Equity Court Held To Be Without Jurisdiction To Hear Petition.  In the instant case the appellant, who was convicted in the People's Court of Prince George's County of selling liquor on a Sunday, petitioned the equity side of the Circuit Court for relief.  It was held that the equity court did not have jurisdiction to hear the petition since equity courts do not interpose their aid in matters merely criminal which do not affect any rights of property.  The Court stated that if the equity court in this case had granted the relief sought, it would have been tantamount to an assumption of the administration of criminal justice.  The only alleged injury sustained by the appellant was the loss of her liquor license which was only an indirect incident or result of her conviction.  And Code (1957), Art. 28, sec. 72, provides that "Licenses ... shall not be regarded as property or as conferring any property rights." Finally, it is well established [***2]  that an equity court will not take jurisdiction of a case merely because if it does not do so no other remedy will be available.
Criminal Law -- A Circuit Court Sitting As A Law Court Has No Jurisdiction To Grant A Belated Appeal Or New Trial In A Criminal Case Disposed Of By A People's Court Or A Magistrate -- Code (1957), Art. 2B, Sec. 192, Contemplates Circuit Courts Sitting As Criminal Courts When Hearing Liquor Law Violations.
Appeal -- Right To, In This Case Not Decided -- Appeal Here Treated As An Application For Certiorari For Purposes Of Review.
Judicial Notice -- Of Rules Of Lower Courts Generally Not Taken By Court Of Appeals.
People's Court of Prince George's County -- Not Empowered To Vacate A Judgment Of Conviction Once Entered, Grant A New Trial, Or Permit Belated Appeals.  The appellant in this case, who was convicted in the People's Court of Prince George's County of selling liquor on a Sunday, filed a petition in that court seeking a belated appeal or a new trial. It was held that the petition was properly denied.  The Court stated that although the Legislature gave to the judges of the People's Court for Prince George's County the power to [***3]  suspend or reduce sentences within ten (now thirty) days after their imposition, it did not see fit to confer upon them the power to grant new trials or to permit belated appeals.  In addition, the Court held that although the People's Court for Prince George's County was authorized to adopt certain procedural rules, it had no power to adopt a rule to change the ten day statutory time for appeal.  Therefore, in the absence of a specific statutory grant of authority, the judges of the People's Court for Prince George's County are without power to vacate a judgment of conviction, once entered, and to grant a new trial, or to authorize the taking of an appeal from their judgments subsequent to the statutory ten day period.
Coram Nobis -- Writ Of -- In Maryland A Statutory Court Is Not Empowered To Issue The Writ In Absence Of Express Legislative Authority -- People's Court Of Prince George's County Held Without Power To Issue Writ.
Post Conviction Procedure Act -- Relief Under, Not Available To Appellant Where She Was Not Incarcerated Or Under Probation Or Parole.  

SYLLABUS:

Dorothy Good was convicted in the People's Court of Prince George's County of violating Code (1957), Art.  [***4]  2B, by selling liquor on a Sunday.  From orders of the Circuit Court dismissing her petitions seeking relief in law and equity as well as an appeal from the People's Court, she appeals. 

COUNSEL:
Harry E. Taylor, Jr., and Hal C. B. Clagett, with whom were Taylor & Waldron and Sasscer, Clagett & Powers on the brief, for appellant.
Robert F. Sweeney, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Arthur A. Marshall, Jr. and Vincent J. Femia, State's Attorney and Assistant State's Attorney for Prince George's County, on the brief, for appellee.  

JUDGES:
Hammond, Horney, Marbury, Sybert and Barnes, JJ.  Sybert, J., delivered the majority opinion of the Court.  Horney, J., dissents.  Dissenting opinion at p. 13, infra.  

OPINIONBY:
SYBERT 

OPINION:

 [*3]   [**489]  The appellant, Dorothy Good, a Prince George's County licensee under the alcoholic beverages law, was charged in the People's Court for that county in July 1963 with violating Code (1957), Art. 2B, by selling liquor on a Sunday.  After three postponements requested by her, or her attorneys, Mrs. Good appeared before Judge McGrath of the People's Court on September 23, 1963,  [***5]  with counsel of her own choice.  After waiving a jury trial and electing to be tried by the People's Court she, through counsel, pleaded guilty and was sentenced to pay a fine of $ 150.00 and costs or, upon default in payment, to serve 60 days in the county jail.  The appellant personally paid the fine and costs and was released.
On October 17, 1963, the Board of License Commissioners for Prince George's County, without notice and without a hearing, revoked Mrs. Good's liquor license. On October 24, 1963, she, through her present counsel (who did not represent her in the earlier People's Court proceedings), filed a petition for review of the board's action in the Circuit Court for Prince George's County.  In January 1964, Judge Parker of the Circuit Court reversed the action of the board because the revocation 

 [*4]  had been accomplished without a hearing as required by Code (1957), Art. 2B, sec. 70(a), and remanded the case.  The board held a hearing in February 1964 and revoked the license pursuant to Art. 2B, sec. 69(f).  This section makes revocation mandatory when a licensee has been convicted twice within a two year period of violating the Sunday sales law (which is Mrs.  [***6]  Good's situation).  The board, however, is staying the revocation on a month to month basis pending the outcome of the attack upon her conviction, which is the subject of the appeals now before us.
Subsequent to the abortive revocation of her liquor license on October 17, 1963, Mrs. Good and her new counsel decided to challenge the validity of her plea of guilty of September 23, 1963.  However, the time for appeal from the conviction had expired, since Code (1957), Art. 52, sec. 13(b), provides in effect that the right to appeal to the circuit court must be exercised within 10 days from the date of the judgment.  The first action taken by present counsel n1 in regard to the guilty plea was the filing of a petition on the equity side of the Circuit Court on October 24, 1963, in which the State of Maryland was named as defendant.  The equity court was asked to permit the filing of a belated appeal, or, in the alternative, to set aside the conviction and grant a new trial in the People's Court. n2 It was alleged that the petitioner "did not realize and was not clearly and fully apprised by counsel of the consequences of a guilty plea" in regard to revocation of her liquor license; that [***7]  she desired a trial on the merits and had a valid defense to the charge; that the guilty plea would not have been entered if she had 

 [*5]  known the consequences; and that she  [**490]  did not know an appeal had not been filed until after the time for filing had expired. (It is noted that the petitioner did not allege that she had made any objection when her counsel entered the plea of guilty, or that she had requested counsel to enter an appeal, or that she had attempted to enter an appeal herself.) In November 1963 the Attorney General of Maryland filed a motion raising preliminary objections to the petition, pursuant to Maryland Rule 323, alleging, inter alia, that the equity court lacked jurisdiction over the subject matter of the petition.

n1 Before present counsel were retained, but after appellant's original counsel had withdrawn, two other attorneys were employed.  These attorneys, on October 18, 1963, filed in the Circuit Court a petition for a writ of mandamus in which they requested that the clerk of the People's Court be ordered to note an appeal from the guilty plea. However, it is stated in appellant's brief that present counsel dismissed the petition when the attorneys who had filed it withdrew from the case. [***8]  
n2 Either remedy, if permissible, would have allowed appellant a trial on the merits since under Code (1957), Art. 52, sec. 15, on appeal to the circuit court, there is a trial de novo even where there was a plea of guilty below.

Before this petition and motion in equity were heard, appellant's counsel filed in the People's Court for Prince George's County on July 16, 1964, a petition seeking a belated appeal to the Circuit Court or a new trial. By this time one of the two attorneys who had represented appellant when the plea of guilty was entered had died.  In the petition several allegations were made that did not appear in the equity petition filed in the Circuit Court the previous year.  It was alleged that the "guilty plea was entered by counsel over the protest" of appellant and that she had had witnesses present in court who were ready to testify in her defense.  It was further stated that on the morning of September 23, 1963 (the date of trial), one of her defense counsel came to her place of business in Brandywine, Maryland, with an associate from his law office and attempted to [***9]  buy her property, including her liquor license, telling her that if she did not sell she would lose her license. It was also alleged that the attorney had recently acquired an interest in a restaurant in Piscataway, Prince George's County, which needed a liquor license such as the one the appellant had, and that he did not disclose this information to appellant.  (We were told at oral argument that the number of liquor licenses in the county was "frozen", but that one other license was available at the time in question.) According to the petition, appellant refused to sell and informed her counsel of her intent not to plead guilty.  And it was also alleged that just before entering the courtroom on September 23, counsel told appellant that he might be able to prevent revocation of her license and that he subsequently entered a plea of guilty and left the courtroom.  When this petition was heard on July 24, 1964, Judge McGrath 

 [*6]  of the People's Court denied the prayers for relief on the ground that he was without authority to grant a belated appeal or a new trial.
On the same day the appellant filed an order for appeal from this denial of relief and the original papers were [***10]  forwarded by the People's Court to the Circuit Court and were docketed as a criminal appeal. On August 24, 1964, the State's Attorney filed a motion raising preliminary objections to the appeal in which he asserted that the Circuit Court lacked jurisdiction over the subject matter and prayed that the appeal be dismissed.
However, before the criminal appeal was heard, and, in fact, before the State had filed its motion raising preliminary objections, the appellant, on August 11, 1964, filed a petition on the law side of the Circuit Court.  By this time the other of appellant's original defense counsel had died.  The petition at law prayed for an order granting a belated appeal or a new trial and contained the same allegations made in the petition filed in the People's Court.  On August 24, 1964, the State's Attorney filed a motion raising preliminary objections to this petition, asserting that the Circuit Court lacked jurisdiction over the subject matter.
Then in September 1964, the appellant filed a motion to consolidate the three cases (i.e., the petition in equity, the criminal appeal from the denial of the petition filed in the People's Court, the petition at law, and the [***11]  three motions raising preliminary objections thereto) for a single hearing.  In this motion among other things it was stated that "the common law writ of coram nobis is available at law or equity in the  [**491]  Circuit Court or in the People's Court as relief to the petitioner in the circumstances set forth in her petitions." Although another judge had signed an order consolidating the cases for a single hearing, when the cases came on for hearing in November 1964 before Judge Powers, they were heard seriatim in light of the language of Rule 503, prohibiting the consolidation or joint trial of law actions with equity actions.  After the hearings, Judge Powers signed three separate orders: (1) and (2) granting the motions raising preliminary objections in the equity and law cases, and denying the petitions filed in those cases seeking orders permitting the filing of a belated appeal from the 

 [*7]  People's Court, or granting a new trial therein, and (3) dismissing the criminal appeal. The appellant appealed from each order and the three appeals are now before us in one record.
With respect to the petitions filed by appellant in the equity and law cases, Judge Powers [***12]  concluded that even if appellant were able to prove the allegations made in her petitions, the Circuit Court lacked jurisdiction to grant the relief sought.  We agree.
The appellant has cited no cases to support her position that an equity court has such jurisdiction and our independent research has not disclosed any.  On the contrary, in Adams v. Commissioners of Trappe, 204 Md. 165, 102 A. 2d 830 (1954), this Court said (at p. 171 of 204 Md.): "It is a basic principle that courts of equity have jurisdiction over issues of property and the maintenance of civil rights, and do not interpose their aid in matters merely criminal which do not affect any rights of property.  * * *" In Clark v. Todd, 192 Md. 487, 492, 64 A. 2d 547 (1949), we observed that equity will enjoin the commission of a crime only when the criminal offense is primarily and essentially an injury to property, and then only within the same limits as where the element of criminality is entirely absent.  And in Chappell v. Stewart, 82 Md. 323, 325-326, 33 Atl. 542 (1896), we quoted with approval a passage from Kerr on Injunctions, pp. 1-2, which read in part: "*** A Court of Equity has no jurisdiction [***13]  in matters merely criminal or merely immoral, which do not affect any right to property.  *** The Court has no jurisdiction to restrain or prevent crime, or to enforce the performance of a moral duty *** or for the purpose of giving a better remedy in the case of a criminal offense * * *." As the Supreme Court of Pennsylvania said in Cooper v. McDermott, 159 A. 2d 486, at 489 (1960): "Equity's jurisdiction does not involve control of the prosecution, punishment and pardon of crimes or misdemeanors.  (Citing cases.) These important functions, for most compelling reasons and sound public policy, are performed exclusively in courts exercising criminal jurisdiction." See also McClintock, Equity (Hornbook Series, 2d ed.), sec. 173.  In the case before us, if the equity court had granted the relief sought, it would have been tantamount to an assumption of the administration of criminal justice.  

 [*8]  The only alleged injury sustained by the appellant is the loss of her liquor license. This is only an indirect incident or result of her conviction, comparable, to a degree, with a defendant's loss of elective franchise upon conviction of a felony.  In fact, Code (1957), Art.  [***14]  2B, sec. 72, provides that "Licenses issued under provisions of this article shall not be regarded as property or as conferring any property rights." Under the circumstances here presented, equity cannot interfere in the criminal case in order to consider whether relief would be appropriate in the incidental matter.  Although equity courts have enjoined the enforcement of judgments of justices of peace, e.g., Wilmer v. Picka, 118 Md. 543, 85 Atl. 778 (1912); Horner v. Popplein, 112 Md. 591, 77 Atl. 252 (1910), such cases were civil in nature.  Finally, it is well established that an equity court will not take jurisdiction of a case merely because if it does not do so no other  [**492]  remedy will be available, Chappell v. Stewart, supra; 1 Pomeroy, Equity Jurisprudence (4th ed.), sec. 424, footnote 1, and that where an appeal was available to test the legality or regularity of a proceeding, relief must be sought in that manner.  U. S. F. & G. Co. v. Taylor, 136 Md. 545, 549, 110 Atl. 883 (1920); Hazlehurst, et al. v. Mayor & C. C. of Baltimore, et al., 37 Md. 199, 220 (1872).
In regard to the action at law the appellant cites no authority for the proposition [***15]  that a circuit court sitting as a law court has jurisdiction to grant a belated appeal or new trial in a criminal case disposed of by a people's court or a magistrate.  The right of appeal from these inferior tribunals granted by Code (1957), Art. 52, sec. 13(b), supra, is to the criminal side of the circuit court.  A civil law court has no jurisdiction in a criminal case. The appellant relies on Code (1957), Art. 2B, sec. 192, to support her contention that the Circuit Court sitting as a law court has jurisdiction to give relief.  That section gives the circuit courts of the counties jurisdiction over liquor law violations concurrent with trial magistrates, but this contemplates the circuit court sitting as a criminal court and is thus of no aid to the appellant's position.
We come now to the criminal appeal. As noted earlier, the appellant filed a petition for a belated appeal or a new trial in 

 [*9]  the People's Court and when the petition was denied she appealed to the Circuit Court, where the appeal was dismissed.
The appeal was not from the judgment of conviction itself, but from Judge McGrath's denial of the petition on the ground that the People's Court lacked authority [***16]  to grant either form of relief prayed.  The State challenges the appeal to this Court as one from final action of the Circuit Court in its limited appellate jurisdiction on appeal from a magistrate or people's court as provided by Code (1957), Art. 52, sec. 13(b), supra.  We find it unnecessary to decide the right to appeal because we think it desirable and in the public interest that the case should be reviewed, as permitted in such a case by Code (1957), Art. 5, sec. 21.  Hence we treat the appeal as an application for certiorari, grant the application and decide the case.  Moulden v. State, 217 Md. 351, 142 A. 2d 595 (1958); Shipley v. State, 201 Md. 96, 93 A. 2d 67 (1952).
The correctness of the Circuit Court's denial of relief in the criminal case depends upon whether or not the People's Court had the power to grant a belated appeal or a new trial. By Ch. 675 of the Acts of 1961 (codified as Code (1964 replacement volume), Art. 52, secs. 25B, 98A, 99, 119(k) and 125A), the Legislature established the People's Court for Prince George's County under the authority of sec. 41B of Art. IV of the Constitution of Maryland, which gave the General Assembly the power by [***17]  law to establish such courts in the counties and incorporated cities of the State (except Baltimore City), and to prescribe and from time to time to alter, inter alia, their powers, duties, jurisdiction, and the right of appeal therefrom.  Chapter 675 invested the judges of the People's Court for Prince George's County with all the authority, powers, and civil and criminal jurisdiction theretofore vested in the justices of the peace designated as trial magistrates and other justices of the peace of the county.  It also gave such judges the power to suspend or reduce (within certain limitations) the sentence and/or costs in any case within their jurisdiction within ten days after judgment has been pronounced (increased to thirty days by Ch. 255 of the Acts of 1965).  See Art. 52, sec. 99, supra.  Hence, the effect of Ch. 675 was to bring the judges of the People's Court for Prince George's County within the purview 

 [*10]  of sec. 13 of Art. 52, supra, which specifies the jurisdiction and powers of the trial magistrates of the State in criminal matters, and permits an appeal from their judgments to the circuit court only  [**493]  within ten days from the rendition [***18]  of the judgment.
It is clear, therefore, that while the People's Court for Prince George's County was created under constitutional authority, its jurisdiction and powers are purely statutory.  And it is conceded in the case before us that the Legislature has made no specific grant of power to the People's Court for Prince George's County, or to the trial magistrates or justices of the peace of the State, to vacate or set aside a judgment of conviction and to grant a new trial, or to permit an appeal after the statutory period has elapsed.  However, the appellant argues that language in Art. 52, sec. 13(a), to the effect that trial magistrates "have power *** to do all acts which may be necessary for the exercise of their said jurisdiction, and may pronounce judgment and sentence in all such cases coming before them, in the same manner, and to the same extent as the circuit courts for said counties could, if such cases had been tried before said courts * * *", constitutes a sufficient basis for the finding of such power.  But the same theory was considered and rejected in State v. Jacob, 234 Md. 452, 455-457, 199 A. 2d 803 (1964). In that case then Chief Judge Brune, for the [***19]  Court, concluded that the quoted phraseology did not confer upon the trial magistrates of Anne Arundel County the power to grant probation without verdict.  The decision was based largely upon the fact that "when the Legislature has wished to confer upon justices of the peace or trial magistrates the power to grant probation without verdict, it has done so specifically." Similarly, in the instant case, although the Legislature gave to the judges of the People's Court for Prince George's County the power to suspend or reduce sentences within ten (now thirty) days after their imposition, as previously noted, it has not seen fit to confer upon them the power to grant new trials or to permit belated appeals.  Indeed, this Court held more than a century ago that because of such a lack of statutory authority, justices of the peace had no authority to strike out their own judgment, once entered, and grant a new trial. Frazier v. Griffie, 8 Md. 50, 55 (1855). The rule is thus stated by a respected Maryland author: 

 [*11]  "It is the general rule that Justices have the power to strike out judgments only in jurisdictions where they may grant new trials.  Justices in Maryland have no [***20]  power to grant new trials, and their judgments once entered, are final, unless appealed from." Thomas, Procedure in Justice Cases (2nd ed.), sec. 78.  See also State v. Stoesser, 183 A. 2d 824 (Del. Super. 1962). And the same lack of statutory authority has over the years prevented belated appeals from justices of the peace, trial magistrates, and the people's courts.
Appellant informs us that the People's Court for Prince George's County has adopted its own rules of procedure, under the authority of Code (1964 replacement volume), Art. 52, sec. 99(b), and that rule No. 1 provides that the "Maryland Rules of Procedure, 1961, and the Local Rules of the Circuit Court of Prince George's County, 1962, in so far as the same are applicable or can be consistently applied, are hereby adopted and made a part hereof * * *." The appellant then argues that Rule 764 b of this Court is applicable to her situation.  That rule provides, in part, that a trial court "shall have revisory power and control over" a judgment entered for 90 days after imposition and that after such period has expired the court "shall have revisory power and control only in case of fraud, mistake or irregularity".  [***21]  
Rule No. 1 of the People's Court is not in the record, and therefore the issue is not properly before us.  This Court does not ordinarily take judicial notice of the rules of the lower court.  Eisenberg, Admin. v. Air Cond., Inc., 225 Md. 324, 333, 170 A. 2d 743 (1961). In any event, the argument is without merit.  While the People's Court for Prince George's County was authorized to adopt  [**494]  certain procedural rules, it has no power to adopt a rule to change the ten day statutory time for appeal.  We have held that a circuit court under a statutory provision which gives it the power to promulgate its own rules of procedure cannot validly adopt a rule which is inconsistent with a general rule of practice or procedure or which is inconsistent with a statutory or constitutional provision.  Bastian v. Watkins, Clerk, 230 Md. 325, 331, 187 A. 2d 304 (1963); Laurel Canning Co. v. B. & O.R.R., 115 Md. 638, 642, 81 Atl. 126 (1911). It follows that a fortiori an inferior tribunal cannot do so.

 [*12]  We conclude that we must hold, as we do upon the basis of the authorities cited, and particularly upon the rationale of State v. Jacob, supra, that in the absence [***22]  of a specific statutory grant of authority, the judges of the People's Court for Prince George's County are without power to vacate a judgment of conviction, once entered, and to grant a new trial, or to authorize the taking of an appeal from their judgments subsequent to the statutory ten day period.  The remedy provided by law to the appellant, who admitted in her petitions that her counsel informed her before trial that conviction would cause her to lose her liquor license, and who then stood silent when a plea of guilty was entered on her behalf, and who paid the fine imposed, without protest, was by appeal to the Circuit Court within ten days.
Appellant argues that the People's Court had jurisdiction to issue a writ of error coram nobis, and that that court should have treated her petition for a new trial or a belated appeal as an application for such a writ.  As pointed out in Madison v. State, 205 Md. 425, 432, 109 A. 2d 96 (1954), the writ of error coram nobis is a common law writ, available in both civil and criminal cases, without limitation as to time, to bring before the court facts which were not brought into issue at the trial of the case, and which were [***23]  material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment.  In England, the writ of coram nobis was a common law writ which issued out of the Court of Chancery to the Court of King's Bench, a common law court.  We have found no authority for the proposition that at common law in England a justice of the peace had authority to issue such a writ.  Our research has revealed that in this country only two jurisdictions have stated that statutory courts have the power to issue this common law writ in the absence of specific statutory authorization.  In California, an intermediate appellate court held, in People v. Superior Court, 82 P. 2d 718 (Dist. Ct. of App. 1938), that a petition for a writ of error coram nobis filed in a police court should be treated as a motion to vacate a judgment previously entered.  But in Maryland, as we have seen, the inferior tribunals do not have the power to vacate or strike out their judgments, once entered.  In Hogan 

 [*13]  v. Suprme Court, 65 N. E. 2d 181 (1946), involving a writ of prohibition, the Court of Appeals of New York observed that an inferior court -- not [***24]  a court of record -- had power to entertain coram nobis applications as an incident to its jurisdiction over certain crimes.  With all due respect to that eminent Court, however, we believe that in Maryland a statutory court is not empowered to issue the common law writ of coram nobis, in the absence of express legislative authority, and we so hold.  Cf. State v. Stoesser, supra.
We note that relief under the Uniform Post Conviction Procedure Act, Code (1964 Cum.Supp.), Art. 27, secs. 645A, et seq., even as amended by Ch. 442 of the Acts of 1965, is not available to appellant since she is not incarcerated or under probation or parole.  If the truth of the allegations in the appellant's petitions be assumed, it would appear that there is no adequate judicial remedy for the wrong of which the appellant complains, but, as was said in Keane v. State, 164 Md. 685, 694, 166 Atl. 410 (1933), "this Court cannot create  [**495]  a remedy where none exists, since its function is to discover and apply existing law and not to make new law."
Orders affirmed, with costs.  

DISSENTBY:
HORNEY 

DISSENT:

Horney, J., filed the following dissenting opinion.
The majority, despite eminent [***25]  authority to the contrary, n1 which they declined to follow on the theory that a statutory court is not empowered to issue the common law writ of error coram nobis, in my opinion, have indubitably denied the appellant her fundamental right to due process.  To me it is incredible that a people's court established by law pursuant to constitutional authority does not have power to issue a writ of error coram nobis in a proper case to review its own judgment as to an alleged error of fact in order to determine whether or not the judgment should be vacated as void. n2

n1 See the decision of the Court of Appeals of New York in Hogan v. Supreme Court, 65 N. E. 2d 181, and the subsequent reference thereto in this dissenting opinion.
n2 The purpose of the writ of error coram nobis, as stated in Keane v. State, 164 Md. 685, is not to permit a review of the evidence given in connection with the issues actually tried but to determine whether facts existed which were unknown to the court at the trial, and were not in issue under the pleadings, but which, if known, would have prevented the judgment.  See also Bernard v. State, 193 Md. 1; Madison v. State, 205 Md. 425.

 [***26]  

 [*14]  The explicit holding n3 of the majority to the effect that the People's Court of Prince George's County was without power to vacate a judgment of conviction and to grant a new trial in the absence of specific statutory authority to do so is based primarily on the cases of State v. Jacob, 234 Md. 452, 199 A. 2d 803 (1964) and Frazier v. Griffie, 8 Md. 50 (1855). Neither of these cases is in point and both are distinguishable from the case at bar.  The Jacob case is distinguishable in that we were there concerned with the statutory power of a trial magistrate to grant probation in a criminal case without verdict which (as therein stated) was essentially a question of jurisdiction.  Here, however, we are concerned with the inherent power of all courts (including courts which are not of record) to issue a writ of error coram nobis for the purpose of considering facts material to the validity and regularity of the trial, which, had they been known to the court at the time, would have prevented entry of the judgment of conviction. The Frazier case, cited by the majority for the proposition that a justice of the peace has no authority to strike out [***27]  a judgment once entered and grant a new trial, is at least distinguishable in that we are concerned here, not with a justice of the peace of the old school, but with a modern people's court within the trial magistrates system created under constitutional authority and possessing statutory power "to do all acts which may be necessary for the exercise 

 [*15]  of [its] jurisdiction *** in the same manner, and to the same extent as the circuit courts" have power to do.  Code (1957), Art. 52, §  13(a).

n3 Although the record contains three appeals, there is but one basic question -- whether or not the People's Court of Prince George's County lacked power to issue a writ of error coram nobis.  The majority ruled, as did the lower court, that the Circuit Court for Prince George's County, either at law or in equity, could not decide the question under the pleadings presented.  As to this, there is no disagreement.  Nor is there disagreement that this Court had the power to decide the question treating the appeal (from the Circuit Court in its appellate capacity) as an application for certiorari.  But this member of the Court does not agree that the People's Court was without power to issue a writ of error coram nobis under the extraordinary facts and circumstances of this case.

 [***28]  
In any event, even if there is no fundamental difference in the powers of inferior courts under the old and new magisterial systems, the Frazier case, as well as the  [**496]  Delaware case of State v. Stoesser, 183 A. 2d 824 (1962), also cited by the majority, are clearly distinguishable from the case at bar in that both of those cases involved situations in which the judgments previously entered had been stricken out or set aside merely because the justices (who had no power to correct an issue of fact wrongly determined and adjudicated) were of the opinion that the judgments were erroneous, while in the case at bar, if it is assumed that the alleged facts are true, it is apparent that the People's Court had power to vacate the void judgment and proceed as though no judgment had ever been entered.  See Clubine v. City of Merrill, 163 Pac. 85 (Or. 1917); State v. Stoesser, supra; 51 C.J.S., Justices of the Peace, §  113.
In my opinion, the contention of the appellant that the People's Court had power under the facts and circumstances of this case to issue a writ of error coram nobis, and that that court should have treated her petition for a new trial as [***29]  an application for such a writ, was correct.  Even though the statute does not in terms expressly authorize the court to issue the writ, there is, on the contrary, nothing to preclude the court from so doing in a proper case.  Likewise, although there is no case law in this State on the question one way or the other, the appellate courts in two other jurisdictions have held that tribunals which are not courts of record nevertheless have power to issue the common law writ of error coram nobis.  In Hogan v. Supreme Court, 65 N. E. 2d 181 (1946), the Court of Appeals of New York, after stating that a court not of record or continuing jurisdiction was not debarred from entertaining a coram nobis application when no other remedy is available to vacate a judgment which was void because of fraud, held that the refusal of a court of special sessions to deal with the matter by way of coram nobis would deprive the appellants of their constitutional rights to due process.  In People v. Superior Court, 82 P. 2d 718 (Cal. Dist. Ct. of App. 1938), where a writ of error coram 

 [*16]  nobis is treated as a motion to vacate a judgment and the question was whether a police [***30]  court had power to consider such a writ, the District Court of Appeals held that where fraud or other facts overriding the free will and judgment of a defendant is involved, and no statutory remedies are available, he was entitled to the common law remedy of a writ of error coram nobis in order to withdraw a guilty plea and have his case heard on the merits.
Without attempting to consider the merits of the appellant's claim (which is first a matter for the People's Court to consider) that she was the victim of a fraud, mistake or irregularity arising out of the conduct of her counsel in that he had led her to believe (despite her desire to plead not guilty) that she might be able to prevent revocation of her liquor license by pleading guilty to a charge of selling whiskey on Sunday, it is apparent to me that the consecutive adverse rulings of the People's Court, the Circuit Court and the majority of this Court to the effect that the People's Court had no power to issue a writ of error coram nobis, absent express statutory authority to do so, to vacate what may well be a void judgment of conviction, has not only foreclosed n4 the appellant from having the case heard on the [***31]  merits, but has deprived her of the constitutional right to due process.

n4 The appellant is foreclosed from pursuing the usual statutory remedies because her right to enter a direct appeal has expired and because the right to post conviction relief was never available to her since she was fined and not imprisoned.

The case, in my opinion, should be remanded to the People's Court to the end that it may issue a writ of error coram nobis for the purpose of inquiring whether or not the judgment of conviction was void because of fraud or other valid reason.  

29 of 138 DOCUMENTS 

MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. BORINSKY 

No. 385, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 611; 212 A.2d 508; 1965 Md. LEXIS 589 

August 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Sodaro, J.  

DISPOSITION:
Motion to dismiss appeal denied; order reversed; case remanded for the passage of an order affirming the action of the Board; appellee to pay the costs.  

HEADNOTES:

Zoning -- Baltimore City -- City Held Proper Party To Appeal To This Court, And Motion To Dismiss Appeal Denied.  This Court denied a motion to dismiss the appeal filed by the Mayor and City Council of Baltimore in the present zoning case.  While the Board of Municipal and Zoning Appeals is an administrative body having no official interest in matters coming before it other than to decide them according to the law and the proved facts, the City was clearly a proper party in the proceeding.  The zoning ordinance is an exercise of the City's police power, and the City has a legitimate interest in the effectuation of its policies.  It was also contended that the City should not have been named as a party in the appeal to the lower court from the Board's decision, but having been made a party by the appellee, the City's right to appeal from the order of the trial court was clear.  Nor did the Court find any merit to the contention that the City, in fact, was appealing [***2]  only upon behalf of the Board, this Court declining to inquire into the City's motives for taking the appeal.  The fact that the Board joined in the appeal to this Court was immaterial, since one of the parties to the appeal had legal standing, and this was sufficient.  The Court characterized as "unimportant trivia" the fact that the Mayor's letter approving the appeal was filed with the Clerk of this Court, rather than in the court below, and was pre-dated.
Zoning -- Unconstitutional Where Owner Affirmatively Shows That He Is Deprived Of All Reasonable Use Of Property -- Conclusion Of Lower Court Upon Question Of Law Not Entitled To Presumption Of Correctness.  If the owner of real property affirmatively demonstrates that the legislative or administrative zoning action taken deprives him of all beneficial use of the property, the action will be held unconstitutional.  But the restrictions imposed must be such that the property cannot be used for any reasonable purpose, it being insufficient that the zoning action results in substantial loss or hardship.  Where the facts are undisputed, the question is one of law, and the conclusion of the lower court is not entitled to the presumption [***3]  of correctness which attaches to findings of fact.
Zoning -- Baltimore City -- Residential Use -- No Showing That Present Zoning, And Refusal To Allow Exception For Office And Warehouse Building, Constituted Unconstitutional Taking In Present Case.  Where the appellee applied for a special exception to construct an office and warehouse building upon her property located in a Residential Use District in Baltimore City, this Court held that she had not sustained the burden of demonstrating that the present zoning of her property, and the refusal of the Board of Municipal and Zoning Appeals to allow an exception, constituted an unconstitutional taking. A number of garages were located upon the property, some being rented for storage of materials other than automobiles, and it was not shown how much revenue was being derived from this source, nor affirmatively proved that this use could not be legally continued.  Testimony that the land had been offered for sale for residential purposes, without success, did not show the price at which the property was offered.  Five row houses could be built upon the tract, and testimony that this was not economically feasible was not supported [***4]  by any evidence as to cost, sales or rental value, or the extent of occupancy and marketability of similar houses in the neighborhood. The fact that real estate developers were not interested in the project did not necessarily make it economically unfeasible for the property owners themselves, and there was no specific evidence that they had attempted to finance the building of the houses and had been unsuccessful.  Nor was there any evidence that the land could not be economically used for purposes permissible under the present zoning other than individual residences.  While the area to the west of the property was commercial and there was a commercial structure to the north, generally the areas to the east and north were residential in nature, and it was immaterial that many of the homes were rented rather than owner-occupied.
Zoning -- Exception Or Variance -- Refusal To Permit, Must Not Be Arbitrary, Unreasonable Or Discriminatory -- Board's Action Upheld Where Supported By Substantial Evidence -- Extent Of Judicial Review.  The refusal of a zoning board to permit an exception or variance may be illegal, if arbitrary, unreasonable or discriminatory, even though there is no [***5]  unconstitutional taking. However, if there is substantial evidence to support the board's decision, its action will be upheld; a court will not substitute its judgment for that of the board as to the wisdom or soundness of the action taken; and it is only where the question decided is not fairly debatable that the decision will be declared invalid.
Zoning -- Baltimore City -- Exception In Residential Use District For Office And Warehouse Building -- Denial Of, By Board Held Not Arbitrary, Unreasonable Or Discriminatory.  The Board of Municipal and Zoning Appeals of Baltimore City did not act in an arbitrary, unreasonable or discriminatory manner when it denied an application for a special exception to construct an office and warehouse building on property located in a Residential Use District, the question being fairly debatable.  There were four violations of the zoning ordinance upon the face of the application, and the Board reasonably could have found that the owner could derive some income from her property under its present zoning. Nevertheless, the owner was entitled to an exception if she proved practical difficulties or unnecessary hardships, or the peculiar topography [***6]  of her tract, but she was required to show that her plight was due to unique circumstances and not to general conditions in the neighborhood. That the property was adjacent to commercial areas was not enough, and mere financial hardship or an opportunity to obtain an increased return from the property was insufficient to show that the zoning was illegal.  This was also true of the claim that the topography of the tract reduced its value under its present zoning to one-half or less of what its worth would be if the exception were granted.  And the fact that a non-conforming use of the property was no longer profitable did not entitle the owner to an exception or variance, there being some evidence of income-producing use of the land possible within the residential zoning, even though the majority of the structures thereon could no longer be used for their original purpose.  

SYLLABUS:

Petition by Sarah Borinsky for appeal from the decision of the Board of Municipal and Zoning Appeals of Baltimore City in denying her application for a special exception to construct an office and warehouse building upon property located in a Residential Use District.  From an order reversing the action of [***7]  the Board, the Mayor and City Council of Baltimore appeals, and the petitioner moves to dismiss the appeal.  

COUNSEL:
Simon Schonfield, Assistant City Solicitor of Baltimore, with whom were Joseph Allen, City Solicitor, and Ambrose T. Hartman, Deputy City Solicitor, on the brief, for the appellants.
Edward Azrael, with whom were Azrael & Gann on the brief, for the appellee.  

JUDGES:
Hammond, Horney, Marbury, Oppenheimer and Barnes, JJ.  Oppenheimer, J., delivered the majority opinion of the Court.  Barnes, J., dissents.  Dissenting opinion at page 628, infra.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*614]   [**510]  The Mayor and City Council of Baltimore (the City) has appealed an order of the Baltimore City Court reversing the action of the Board of Municipal and Zoning Appeals of Baltimore City (the Board) which denied the Appellee's application to construct an office and warehouse building on her property in a Residential Use District.
I
The Appellee has filed a motion to dismiss the City's appeal 

 [*615]  on the grounds that, although the order for appeal was entered on behalf of both the City and the Board, the appeal is, in fact, the appeal of the Board; that the [***8]  order for appeal to this Court was not approved by the Mayor as provided for by the Baltimore City Charter; and that the City is not properly a party to this cause.
When the Appellee filed her Motion of Appeal to the Baltimore City Court from the resolution of the Board, she made both the Board and the City parties defendant.  Both the City and the Board, through the office of the City Solicitor, filed an answer to the Appellee's petition in support of her Order of Appeal.  Judgment was made absolute for the Appellee in the Baltimore City Court on November 10, 1964.  On the same day, the Board, by majority action, voted to have its Chairman and Executive Secretary write to the City Solicitor or meet with him to request that an appeal be taken from the order of the Baltimore City Court to this Court.  On November 12, 1964, the Chairman of the Board wrote to the City Solicitor giving reasons why, in the opinion of the Board, an appeal "must be taken." Section 65 of the Baltimore City Charter (1946) states that the City Solicitor is the legal advisor of the City and its several departments, commissions and boards.  Section 66 of the Charter provides that no appeal shall be taken except [***9]  upon written order of the City Solicitor, approved by the Mayor.  An Order of Appeal was filed in the Baltimore City Court, signed by the City Solicitor and an Assistant City Solicitor, on November 23, 1964.  As of that date, (admittedly, the letter was actually written on December 9), the Mayor wrote to the City Solicitor approving the entering of this appeal.  The Mayor's letter was not filed in the Baltimore City Court and did not accompany the Record when it was sent to this Court, but was sent directly to the Clerk of this Court and was received by him on December 10, within the 30 day period from the entering of the final judgment in the court below.
The City, in the argument before us, conceded that the Board is not a proper party to an appeal which involves its own decision.  The Board is an administrative body which has no official interest in the matters which come before it other than to decide them according to the law and the proved facts.  Nuova 

 [*616]  Realty Co. v. City of Baltimore, 197 Md. 266, 272, 78 A. 2d 765 (1951); Zoning Appeals Board v. McKinney, 174 Md. 551, 562, 199 Atl. 540 (1938).
The City, however, is clearly a proper party in these proceedings.  [***10]  The zoning ordinance is an exercise of the City's police power.  Grant v. City of Baltimore, 212 Md. 301, 314, 129 A. 2d 363 (1957); Jack Lewis, Inc. v. Baltimore, 164 Md. 146, 153,  [**511]  164 Atl. 220 (1933); Tighe v. Osborne, 150 Md. 452, 456-57, 133 Atl. 465 (1926). The City has a legitimate interest in the effectuation of its policies.
In Mayor & C. C. of Baltimore v. Shapiro, 187 Md. 623, 51 A. 2d 273 (1947), we overruled a motion to dismiss an appeal which the City had filed, as here, from an order of the Baltimore City Court reversing an action of the Board.  In that case, Judge Henderson, for the Court, referred to the provisions of the Enabling Act, Code Article 66 B, Section 7, which provide for an appeal from any decision of the Board, by any person, officer, board or bureau of the municipality, and said, at 187 Md. 627, "we cannot say that *** the City has no legitimate interest in the subject matter or outcome of the litigation, even if such inquiry were open under the unqualified provisions of the statute." See also Town of Berwyn Heights v. Rogers, 228 Md. 271, 280, 179 A. 2d 712 (1962).
The Appellee contends that the City should not have [***11]  been named as a party in the appeal to the lower court from the Board's decision, and that she should have merely filed a Petition for Review, as the Enabling Act provides.  The City answers that, the Appellee having made it a party, she has no standing now to question her own act.  If the City had not been joined as a party defendant, it would have had the right, on petition, in the court below, to be made a party because of its interest.  Having been made a party by the Appellee, its right to appeal from the order below is clear.
The Appellee further contends that her motion should be granted because, in fact, the City is only appealing on behalf of the Board, which had no right to appeal.  The contention is answered in Mayor & C. C. of Baltimore v. Shapiro, supra. There, it was alleged in the motion to dismiss that the City had simply consented to permit the appeal to be prosecuted in its 

 [*617]  name for the benefit of and at the expense of certain private parties.  We refused to inquire into the City's motives for taking the appeal, and said, at 187 Md. 627, we did not regard the fact that private persons, denied the right to intervene for the purpose of appeal, had agreed [***12]  to reimburse the City for costs, as controlling.  We said: "Whether a particular case should be appealed *** must rest in the sound discretion of the City authorities."
The fact that the Board joined in the appeal to this Court, when it was not a proper party, is immaterial.  If, as here, one of the parties to the appeal has legal standing, that is sufficient.  Windsor Hills Improvement Association, Inc. v. M. & C. C. of Baltimore, 195 Md. 383, 73 A. 2d 531 (1950).
It is immaterial also, in our view, that the necessary approval of the appeal by the Mayor was not filed with the original order of appeal and was filed in this Court instead of below.  The purpose of the requirement in the Charter is to show that the appeal was authorized by the Chief Executive of the City.  That authorization was made manifest within the necessary 30 day period.  That the Mayor's letter was filed with the Clerk of this Court instead of below, and that the letter was pre-dated, like the language of the Board intimating that an appeal must be taken, are unimportant trivia.  There was compliance with the substance of the statutory requirements, and, if there were technical irregularities, the Appellee [***13]  was in no way prejudiced.  See Irvine v. Montgomery Co., 239 Md. 113, 210 A. 2d 359 (1965) and Board of Co. Comm. v. Kines, 239 Md. 119, 210 A. 2d 367 (1965).
The motion to dismiss the appeal is denied.  We turn to the merits.
II
The Appellee, Sarah Borinsky, and her brother Louis are the owners of a lot of ground situate in Baltimore City and known as 2649 Quantico Avenue, midway between Park Heights Avenue and Pimlico Road.   [**512]  The property was inherited by them from their deceased parents who acquired it in 1925 or 1926.  At that time, the property was improved by 53 garages which were then rented to neighbors for the storage of automobiles.  Ten of these garages have been razed and the remaining 43 

 [*618]  are not being used save for nine or ten which are from time to time used by tradespeople for the storage of miscellaneous items.  Practically all of the garages are dilapidated.  The district in which the lot is located has always been zoned for Residential Use.
The lot is irregular in shape in that its width at its northern boundary line, fronting on Quantico Avenue, is approximately 115 feet, and it tapers down for a distance of approximately 297 feet [***14]  so that at its south end it is only about 20 feet wide.  This is the only lot of ground in the block on the south side of Quantico Avenue with frontage on Quantico Avenue.  The lot of ground lies between two alleys. The entire eastern line of the lot binds on an alley running in the rear of the back yards of dwelling houses fronting on Pimlico Road.  The property to the west, across the other alley, consists of converted houses used for commercial purposes, fronting on Park Heights Avenue.
The property to the west is in a First Commercial Use District.  The property to the east is zoned Residential, as is the property to the north, except for a one-story masonry office and warehouse building on the north side of Quantico Avenue.  This building was recently permitted by the Board by allowing an extension into the residential zone under the provisions of Section 14 of the Baltimore Zoning Ordinance. That section is not applicable to the property here involved, because the adjacent commercial zone to the west is separated from the property by an alley. Quantico Avenue is about 50 feet wide between the building lines to the north and south.
The Appellee filed an application with the [***15]  Building Inspection Engineer to construct a one-story masonry building and warehouse on her property, similar to the building on the north side of Quantico Avenue.  The Engineer has no legal power to permit an office or commercial use in a residential zone and refused the application.  The Appellee appealed to the Board.  In her appeal, she requested a special exception under Section 36 (b) and (c) of the Zoning Ordinance. The appeal was heard by four of the Board members, the fifth member being absent.
At the hearing before the Board, Louis Borinsky, the Appellee's brother and one of the owners of the property, testified 

 [*619]  that the garages on the lot are no longer rentable for the storage of private automobiles because of the size of modern cars, the fact that automobiles can now be parked on the streets, and the changes in the neighborhood. Some of the garages, however, an average of nine or ten, are rented for commercial uses other than the storage of cars, such as the storage of building materials.  Mr. Borinsky testified he and his sister had tried to sell the property for residential purposes. "We have talked to agents on and off throughout the years and haven't [***16]  had any success at all." In Mr. Borinsky's opinion, the lot cannot be sold or used for residential purposes.
Mr. Richard M. Hutman, a registered architect, testified on behalf of the Appellee that he found the site not feasible for residential construction, because of the shape and depth of the lot.  He pointed out that the residences in the neighborhood are of a rowhouse type, built on lots approximately 15 1/2 feet wide by 110 feet deep.  The lot involved has an area of about 1700 square feet. In an area of this size, if it were rectangular, a developer might hope to get nine or ten family units.  However, because of the triangular shape of the lot, only five houses could be built. Therefore, only slightly more than 52 1/2% of the property is usable, whereas a developer building row houses would normally expect close to 100% use of the land.  In response to a question from a member of the Board, Mr. Hutman admitted that the remaining  [**513]  "48%" of the land could be used for extended back yards or a park for the five houses, although the developer would only get a density of about 13.2 families per acre instead of the 27.3 families he would normally expect.  It would be [***17]  pleasant, Mr. Hutman thought, for tenants to have the additional 110 or 115 feet of backyard, but he doubted that it would be income producing to a developer. He would not advise a client to develop houses on the property.
Mr. Melvin Goldman, a developer and real estate expert, testified for the Appellee that he was familiar with the property and that Mr. Hutman had covered the situation adequately.  He, Mr. Goldman, would not think of developing the tract if it were offered to him.  In his opinion, it would be economically unsound and unwise to build houses on it; the use of the land for residential purposes would be "economic suicide." The occupants 

 [*620]  of the houses in the residential portions of the general neighborhood have changed from homeowners to renters; the use of the houses on the west, fronting on Park Heights Avenue, has changed from residential to commercial; and there have been other changes to commercial in the neighborhood. In his opinion, it would be "most difficult" to secure financing for the construction of residential dwellings on the property.
After the hearing, two members of the Board voted to disapprove the application and two to approve it.  In [***18]  view of the requirement that at least four members of the Board must vote in favor of granting the permit for the Appellee to prevail, the application stood as disapproved.  The effect of the Board's action was to leave the denial of the application by the Building Inspection Engineer in force.  Levy v. Seven Slade, Inc., 234 Md. 145, 148-152, 198 A. 2d 267 (1964) and cases therein cited.
The two members of the Board who approved the denial of the application relied upon four violations of the Zoning Ordinance shown on the face of the application: (1) a violation of Sections 9 and 10 of the Ordinance in that the proposed use was a prohibited one in a Residential Use District, (2) a violation of Section 13-H-1 of the Ordinance which prevents the changing of the garage buildings to any other form of non-conforming use, and which provides that where garage buildings have the status of non-conforming uses, such buildings may not be extended, expanded, enlarged or added to in any manner; n1 (3) a violation of Section 24 of the Ordinance in that the 

 [*621]  application provided for 100 per cent lot coverage which would be in excess of the permissible 50 per cent; (4) a violation [***19]  of Section 28 of the Ordinance in that the  [**514]  application showed that there would be no front yard setback as required by that Section.

n1 Section 13-H of the Zoning Ordinance was passed by the Mayor and City Council of Baltimore as Ordinance 1162 and approved on April 4, 1962.  It reads as follows:
"H. NON-CONFORMING STATUS OF CERTAIN USES
1. Notwithstanding other provisions of this Article, any building or structure all or substantially all of which is designed and constructed for the storage or parking of privately owned passenger automobiles in a Residential and Office Use District or in a Residential Use District, may be continued for such use, and such use shall not have the status of a non-conforming use, and further, nothing herein shall be construed to permit the change of such use to any non-conforming use.  Where such building, structure or portion thereof is devoted to a use other than the storage or parking of privately owned passenger automobiles and the use is non-conforming, such non-conforming use may be continued subject, however, to the following provisions:
(a) that such building, structure or portion thereof shall not be altered in internal arrangement and no structural alterations shall be allowed in or to such building or structure for a use other than the storage or parking of privately owned passenger automobiles, except those required by law;
(b) that such non-conforming use shall not be changed to any other use except to the storage or parking of privately owned passenger automobiles;
(c) that such non-conforming use shall not be extended, expanded, enlarged or added to in any manner; * * *"

 [***20]  
The respective reasons for the votes of the members of the Board were given as follows:
"The Board, in considering this case, reviewed the Court of Appeals' decision in Frankel versus the Mayor and City Council and Sapero versus the Mayor and City Council but, in the judgment of the Board, it was felt that this case does not come within the purview of these decisions.  It was also observed that recently a non-conforming use provision was passed and set forth that garages cannot be changed to uses of any classification and must revert to residential use unless a non-conforming use is established.  (Section 13).  The Board, (two members) felt that the use of the premises for commercial purposes would have an adverse effect upon the neighborhood. Two of the members of the Board were of the opinion that a hardship does exist and that this case is similar to the previously cited Court of Appeals' cases mentioned above and that the evidence adduced at the public hearing warranted a finding favorable to the appellant.

 [*622]  "In accordance with the above facts and findings, the Board disapproves the application." n2

n2 The Board voted 3 to 2 to request the City to appeal the decision of the Baltimore City Court.  In his letter of November 12, 1964 to the City Solicitor, the Board's Chairman wrote:
"The Court's decision rests primarily on the Court of Appeals' decisions in the first Sapero case and the Frankel case.  The Board disagrees with this position since it feels that the present case is clearly distinguishable."

 [***21]  
Judge Sodaro, of the Baltimore City Court, decided the case on the record made before the Board.  In reversing the action of the Board, he held that the Board, in denying the exception asked by the Appellee, was in a legal sense arbitrary and capricious; and that the Appellee had met the burden of proving by clear and convincing evidence that she would be deprived of all reasonable use of her property under the present zoning.
These are the two legal issues presented on this appeal.  We shall consider them in reverse order.
III
The legal principles whose application determines whether or not the restrictions imposed by the zoning action on the property involved are an unconstitutional taking are well established.  If the owner affirmatively demonstrates that the legislative or administrative determination deprives him of all beneficial use of the property, the action will be held unconstitutional.  But the restrictions imposed must be such that the property cannot be used for any reasonable purpose.  It is not enough for the property owners to show that the zoning action results in substantial loss or hardship.  Pallace v. Inter City Land Co., 239 Md. 549, 212 A. 2d 262;  [***22]  DePaul v. Board, 237 Md. 221, 227-29, 205 A. 2d 805 (1965) and cases therein cited.  Where, as here, the facts are undisputed, the question is one of law, and the conclusion of the lower court is not entitled to the presumption of correctness which attaches to findings of fact.  Pallace v. Inter City Land Co., supra.
In this case, all three of the Appellee's witnesses testified that, in their opinion, the property could not be economically or feasibly used for residential purposes. However, facts adduced 

 [*623]  by the evidence must also be considered.  Some of the garages on the property have been and are being rented for the storage of building materials or personal property other than  [**515]  automobiles.  Five row houses, similar to those in the immediate neighborhood, although perhaps with larger back yards or a small community park, can be built on the tract. While the structures to the west of the property, separated by an alley, are used for commercial purposes and there is an office and warehouse building on the north side of Quantico Avenue, the areas in the neighborhood immediately to the east and to the north are occupied almost entirely by residences.  [***23]  
There are, moreover, material gaps in the testimony of the Appellee's witnesses.  It was not shown how much revenue is being derived from the rental of some of the garages for storage other than of automobiles.  The Appellee intimates that this storage may not be permitted under present zoning, because there has been no determination that there is a non-conforming use.  But the burden is on the Appellee to show that her property cannot be used for any reasonable purpose.  Part of it, at least, brings in some income, and the Appellee has not affirmatively proved that this use cannot be legally continued.  Section 13-H-1. of the Baltimore Zoning Law expressly provides that where any structure constructed for the storage or parking of privately owned automobiles is devoted to a use other than such storage or parking, then, if that use is non-conforming, (subject to certain conditions not here applicable) it may be continued.
The testimony that the property had been offered for sale for residential purposes, without success, was not supported by evidence of the price at which the property had been offered.  The testimony that the building of the five row houses was not economically feasible [***24]  was not supported by any evidence of the cost of the erection of such houses, the sales or rental value of the houses, if built, or the extent of the occupancy and the marketability of similar houses in the neighborhood. That real estate developers were not interested in the project does not necessarily mean that it was economically unfeasible for the property owners themselves to build one or more houses for sale or rental.  There was no specific evidence that the owners had attempted 

 [*624]  to finance the building of the houses and had been unsuccessful.  Nor was there any evidence that the property could not be economically used for purposes other than individual residences, permissible under the present zoning, as, for example, a small apartment house, church or synagogue.
We have found a constitutional taking by zoning action on expert opinion testimony, when that opinion was factually supported.  In the first Sapero case, Baltimore v. Sapero, 230 Md. 291, 186 A. 2d 884 (1962), the overwhelming commercialization of the area was undisputed, including an adjacent service station and shopping center across from the lot.  In Frankel v. City of Baltimore, 223 Md.  [***25]  97, 103, 162 A. 2d 447 (1960), we held that the opinion testimony was supported by "the uncontrovertible physical facts." The lot there involved was located on a corner of an arterial highway and another street, and was bounded on two sides entirely by parking lots and public and semi-public institutions, with a synagogue, a public parking area and a large public junior high school across the street; the lot had formerly been used as a bus station.  However, when the expert opinion testimony was not supported by substantial factual evidence, we have held that general claims of economic unfeasibility are not sufficient to prove an unconstitutional taking. Pallace v. Inter City Land Co., supra; Sapero v. M. & C. C., 235 Md. 1, 200 A. 2d 74 (1964) and cases therein cited.  See also Pahl v. County Bd. of Appeals, 237 Md. 294, 297, 206 A. 2d 245 (1965).
In his opinion, in holding that there was an unconstitutional taking of the property in this case, Judge Sodaro found that Frankel was controlling.  We disagree.  It is true that the same expert witness who testified for the applicant in Frankel testified  [**516]  for the Appellee in this case; he was asked the same [***26]  general questions as in Frankel and gave the same answers; indeed, he testified that if, as he had stated in Frankel, the use of the land there involved for residential purposes would be "economic suicide," it would "certainly be doubly true in this instance." However, even emphatic opinion testimony does not take the place of the necessary factual support.  In Frankel, Judge Prescott, for the Court, relied largely upon the nature of the surrounding neighborhood. In that case, the property was 

 [*625]  virtually an island in the midst of public and private institutions and parking lots; while there were five residences to the south, these were row houses not ordinarily permitted in the residential "E" zone there involved.  In this case, as we have pointed out, while the areas to the west of the property are commercial and there is a commercial structure on the other side of Quantico Avenue, the area to the east and north are residential in nature.  It is immaterial that many of the homes to the west are rented rather than owner occupied; if a property is used as a home, it is a residence irrespective of the nature of the legal interest of the persons who occupies it.  [***27]  It is true that in Frankel there was testimony that two semi-detached homes could be built upon the property, but there was strong evidence from the applicant's witnesses that residences could not be sold because of the nature of the neighborhood. In this case, as we have pointed out, not only is the nature of the neighborhood different from that in Frankel, but there is no specific evidence as to the cost or marketability of the five row houses which can be erected, nor any testimony that the property cannot be used for permitted non-residential purposes, while admittedly a portion of the property, even at the present time, and despite the dilapidation which the owners have permitted, brings in at least some revenue.
On the record and the authorities, we find that the Appellee has not sustained the burden of demonstrating that the present zoning of her property and the refusal of the Board to allow an exception constitute an unconstitutional taking.
IV
The refusal of a zoning board to permit an exception or variance, if arbitrary, unreasonable or discriminatory, may be illegal, even though there is no unconstitutional taking. Baltimore v. Sapero, supra. However,  [***28]  if there was substantial evidence to support the Board's decision, its action will be upheld; a court will not substitute its judgment for that of the Board as to the wisdom or soundness of the action taken; it is only where the question decided is not fairly debatable that the decision will be declared invalid.  Sapero v. M. & C. C., supra; Montgomery Co. v. Scrimgcour, 211 Md. 306, 312, 127 A. 2d 

 [*626]  528 (1956); Offutt v. Bd. of Zoning Appeals, 204 Md. 551, 562, 105 A. 2d 219 (1954) and cases therein cited.
In this case, in denying the application for an exception, the Board relied upon four violations of the Zoning Ordinance shown on the face of the application.  It is clear that these violations exist.  From our discussion of the issue of unconstitutional taking, it follows that the Board could reasonably have found from the testimony and the inferences fairly deducible therefrom, that, under the present zoning, the Appellee can derive some income from her property.  The Appellee, nevertheless, was entitled to the exception if she proved practical difficulties or unnecessary hardships, or the peculiar topography of her tract, which entitled her thereto.  To sustain [***29]  this burden, she must show that her plight is due to unique circumstances and not to general conditions in the neighborhood. Penn Construction Co. v. Baltimore City, 233 Md. 372, 376-77, 196 A. 2d 879 (1964); Marino v. City of Baltimore, 215 Md. 206, 219, 137 A. 2d 198 (1957) and cases therein cited.
 [**517]  That the Appellee's property is adjacent to commercial areas to the west and that there is a business structure on the other side of Quantico Avenue is not enough.  As we pointed out in Marino, at 215 Md. 222, if the neighborhood is gradually changing as a result of additional commercial use, the City Council may have the power to extend the adjacent commercial district to include the property involved, but that is a legislative, not a judicial function.
It is unnecessary for us to add to what we have said above as to our holdings that mere financial hardship or an opportunity to obtain an increased return from the property is not sufficient to show the zoning action is illegal.  The topography of the Appellee's tract, because of its triangular nature, is such that only slightly more than one-half of her ground can be used for row houses.  But even if this circumstance [***30]  reduces the value of her property under its present zoning to one-half or less of what the worth would be if the exception were granted, that is not enough to make the Board's refusal illegal.  In Marino, there was testimony that the commercial value of the property was ten times that for residential use; we held that the application for the erection of a store building was not illegally denied.  

 [*627]  See also Greenblatt v. Toney Schloss, 235 Md. 9, 200 A. 2d 70 (1964).
Nor does the fact that the original use to which the property was put, the renting of the garages for the storage of private automobiles, is no longer feasible, entitle the Appellee to the relief she prayed.  It was admitted in the argument that there are many properties throughout the city, in residential use districts, which are occupied by garages which have become obsolete.  That a non-conforming use n3 is no longer profitable does not mean that the property owner is entitled to an exception or variance. As we pointed out in Grant v. City of Baltimore, 212 Md. 301, 307, 129 A. 2d 363 (1957), "the earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as [***31]  speedily as possible with due regard to the legitimate interests of all concerned." Here, as we have found, the Board could well have determined, as in effect it did, that there was some income-producing use of the property possible within the residential zoning, even though the majority of the garages can no longer be used for their original purpose.

n3 The history of the zoning law and decisions as to the status of garages prior to the passage of the 1962 Ordinance, excerpts of which are in footnote 2, supra, is set forth in Higgins v. City of Baltimore, 206 Md. 89, 110 A. 2d 503 (1955).

The City contends, and the Appellee denies, that Section 13 of the Zoning Ordinance as enacted in 1962 makes inapplicable the authority of the Board to grant exceptions as to garage buildings located in residential use districts.  We do not reach that question.  We hold that, assuming arguendo that the Board's power to grant exceptions was unchanged by the 1962 Ordinance, the question of whether to grant or deny the exception [***32]  was fairly debatable, that the Board's denial was not arbitrary, unreasonable or discriminatory, and that the court below erred in reversing the Board's action.
Motion to dismiss appeal denied; order reversed; case remanded for the passage of an order affirming the action of the Board; appellee to pay the costs.  

DISSENTBY:
BARNES 

DISSENT:

 [*628]  Barnes, J., filed the following dissenting opinion.
I agree with the Court's ruling on the appellee's motion to dismiss the appeal but I cannot agree with the Court's decision on the merits.
In my opinion Judge Sodaro, in his carefully considered opinion in this case, was correct in holding that the case at  [**518]  bar is controlled by our decision in Frankel v. Mayor and City Council of Baltimore, 223 Md. 97, 162 A. 2d 447 (1960), and that "the factual situation is not merely one of hardship, but of a taking in a constitutional sense." Indeed, in my opinion, the case at bar is factually a far stronger case to establish an unconstitutional taking than was the factual situation in Frankel.
In the Frankel case, the property involved was 5616 Park Heights Avenue, Baltimore, Maryland.  It was located at the southwest corner [***33]  of Park Heights Avenue at its intersection with Manhattan Avenue.  The lot was an irregular one with a frontage of 149.27 feet on Park Heights Avenue tapering from a width at its northern end of 56.2 feet to a width of 92.25 feet at its southern side.  It was in a Residential Use, E Area District.  The lot had, at one time been used by the Baltimore Transit Company, and at the time of Dr. Frankel's application in 1958 to construct a two-story and basement professional office building on the property, there was an abandoned bus terminal and waiting station 12 feet by 20 feet, containing plumbing fixtures previously used as a comfort station for employees of the Baltimore Transit Company and as a depository for various vending machines.  To the east of the Frankel property were the Synagogue of the Beth Jacob Congregation (an orthodox Hebrew congregation), located north of Manhattan Avenue, and the Pimlico Junior High School, located south of Manhattan Avenue.  To the north of the Frankel property, the Associated Jewish Charities planned to construct a Jewish Community Center with a large parking lot on the northwest corner of Park Heights and Manhattan Avenues.  Farther north, the Baltimore [***34]  Hebrew College had been erected.  To erect these new buildings, residential cottages had been demolished.  South of the Junior High School, Northern Parkway had been built. On the south of the Frankel property there were five row houses 

 [*629]  fronting on Park Heights Avenue so that the side of the adjacent row house was parallel to the south property line of the property.  During the 10 to 15 years preceding the filing of Dr. Frankel's application the neighborhood had gradually changed from a residential cottage-type use to either commercial uses or the institutional uses mentioned.  It was contemplated that the structure on the property be razed to permit the erection of the masonry professional office building which would be 100 feet by 40 feet, with two stories and a 25 foot basement.  There were both use and area violations presented by the application and Dr. Frankel applied for an exception or variance under Section 36, subsection (b) and (c) of the Baltimore City Zoning Ordinance.
Melvin Goldman, a well qualified real estate expert and a developer of residential property himself, testified for Dr. Frankel.  (Mr. Goldman is the same expert who testified for the applicants [***35]  in the case at bar).  His testimony in the Frankel case is summarized by Judge Prescott, speaking for the Court, as follows:

"After testifying to the changes in the neighborhood, he stated that their combined effect is 'overwhelming evidence of the tremendous change that has taken place in the neighborhood within recent years.'
"He also testified that due to the changes in the neighborhood, the existence of the commercial, institutional and office uses and the irregularity of the land, it would be highly impractical to attempt to develop this property by the erection of residences thereon, that it could not reasonably be used for residential purposes, and it would be economically unsound for a developer to undertake to erect residences on the property, as it was a very unlikely and unsatisfactory site for dwellings.  He added that any attempt to develop the lot for residential purposes would be 'sheer economic suicide.'" (pages 101-102 of 223 Md.).
There was also testimony by a financial advisor to building associations that although  [**519]  an application for financing for residential development of the Frankel property would be considered, 

 [*630]  he did [***36]  not believe that a mortgage for residential construction would be granted.  An architect testified that although it would be possible to erect residences on the Frankel property, "due to the irregularity of the lot and set backs it would not be feasible for residences." Another well qualified real estate expert, A. Gordon Gilbert, testified that "the property is unsuitable for residential purposes, although it is zoned for residential purposes" and that in his opinion the Frankel property "surrounded by such uses, *** would not be saleable for residential purposes, if so improved, or if saleable would be saleable at such a price as to reflect no value in the land." He testified that he could assign no value to the land for residential purposes.
Unlike the case at bar, however, there was a substantial protest from the Synagogue and the neighboring residential property owners (15 of whom appeared and testified at the hearing before the Board against granting the application) and there was substantial testimony in the lower court by a real estate expert that two semi-detached houses 16 feet by 31.6 feet, or two cottages, 20 feet by 30 feet, could be built on the subject property and [***37]  that these would be saleable in the vicinity of $ 9000 to $ 11,000 subject to an annual ground rent of approximately $ 2000.  This same expert testified that residences had within the two-year period prior to the application been erected on Ken Oak Road (less than one block to the southeast of the Frankel property) and sold.  The City's expert also testified that there would be a market for the sale of residences erected on the Frankel property resulting from those members of the Beth Jacob Congregation who because of the tenets of their faith in regard to travel on the Sabbath, wished to live within walking distance of their place of worship.  This testimony was accepted by the trial court in Frankel and the action of the Board (unanimous and not divided two to two as in the case at bar), was affirmed by the trial court.  In Frankel, we held that there was an unconstitutional taking of Dr. Frankel's property because "the uncontrovertible physical facts support the testimony given, and the conclusions reached, by the appellant's experts *** and clearly show that the present zoning ordinance restricts the use of the Frankel property so that it cannot, 

 [*631]  within [***38]  the sphere of its present zoning classification, be used for any reasonable purpose.  When this occurs, zoning goes beyond permissible and legal regulation and must yield to the rights of the property owner." (Page 103 of 223 Md.).
In the case at bar, the plat introduced into evidence shows that the subject property is irregular in shape.  It is triangular, with a frontage of approximately 115 feet on Quantico Avenue, and it becomes sharply narrower as it runs southerly from Quantico Avenue for a distance of more than 200 feet, until its southern boundary is only 20 feet. It has a far more extreme triangular shape than Dr. Frankel's property.  It is the only lot on the south side of Quantico Avenue which has frontage on that Avenue.  Directly across Quantico Avenue to the north there is a one-story masonry office and warehouse building permitted by the Board under the provisions of Section 14 of the Baltimore City Zoning Ordinance which gives power to the Board to grant a First Commercial Use within 100 feet of an existing First Commercial Use District provided that distance does not cross a street or alley. The applicants in this case applied for substantially the same type of [***39]  building and use and have used the warehouse building directly across Quantico Avenue to the north as a model for their application.  But for the presence of the 15 foot alley which is immediately adjacent to the First Commercial Use District to the west of the subject property, the Board would have power to grant the applicants relief like that granted the applicant across the street. There is a 10 foot alley to the east of the subject property.  [**520]  The rear yards of the two-story rented dwelling houses (which front on Pimlico Road) run to the east side of this 10 foot alley.
As pointed out in the majority opinion, the subject property was purchased by the parents of the applicants in 1925 or 1926 and garages were built in a Residential Use District for the parking of automobiles.  They were non-conforming uses when the first comprehensive zoning ordinance was passed in Baltimore City in 1931.  Ten of the original fifty-three garages have been demolished, so that forty-three remain.  The remaining garages are in very poor condition and show evidences of vandalism and lack of a productive economic use.  The improvements on the properties to the west of the subject property [***40]  

 [*632]  were originally built as residences, but now have commercial uses.  Their rear yards adjoin the 15 foot alley to the west of the subject property. The property at the southeast corner of Park Heights and Quantico Avenues -- the rear yard of which adjoins the 15 foot alley -- is used as a butcher shop.  The basement of the property on the southwest corner of Quantico Avenue and Pimlico Road is used as a butcher shop, fish market and produce market.  Its rear yard runs to the 10 foot alley on the east of the subject property. Fortunately there is an informative plat and four excellant photographs in the Appendix which clearly show many of the relevant physical facts in regard to the subject property and the surrounding properties.
Louis Borinsky, one of the owners, testified that after the City permitted automobiles to be parked on the streets during World War II, the use of the garages dropped off 50%.  Thereafter automobiles became larger and "now these garages cannot be used for the average modern car because of their size." He testified that the character of the neighborhood had changed and the people who live in the neighborhood "simply don't rent garages and couldn't [***41]  get their cars in them even if they wanted to.  So, it is an impossible situation from all points." He also testified that the subject property could not be sold or used for residential purposes and that the applicants "have tried from year to year, and simply cannot"; the subject property has been offered for sale, they have "talked to agents on and off through the years and haven't had any success at all"; and "Nobody is interested in it for residential use whatsoever." He also testified that 9 or 10 of the garages are rented from time to time for the storage of miscellaneous items such as to a roofing man, "a loner," who might store roofing materials for a few months, but they "leave all their stuff there and that is the end of them." There has been considerable vandalism in recent years and the remaining garage buildings in their present condition "offer some damage to the community." Mr. Borinsky also testified that on the other side of Park Heights Avenue, fronting on Quantico Avenue, there were formerly garages of the same sort and that they were now warehouses, a chicken killing establishment and a used car lot.  All of this testimony -- and indeed all of the testimony in the [***42]  case -- is uncontradicted.

 [*633]  As already indicated, Melvin Goldman, the same well qualified real estate expert who testified in the Frankel case, also testified for the applicants in the case at bar.  His testimony is accurately and succinctly summarized by Judge Sodaro in his opinion in the lower court as follows:
"This piece of property, if it were offered to me, I, as a developer, simply would not think of developing it *** my experience, through the years, this property has been offered to developers for residential development *** as much as ten years ago *** at that time the market was a little bit different *** and even at that time, the general character of the neighborhood was such that the average developer, to whom it was offered, rejected it for residential construction.   [**521]  So, the conditions in recent years in the neighborhood have become such that it is my opinion that no sound developer would undertake to develop residences on this tract *** to build houses there would, in my opinion, just be economically unsound and unwise *** I am not given to repeating phrases, but if I was asked to use this precise phrase (economical suicide)  [***43]  with this property, I would say that if it were true in the case of the Frankel land, which is located at Park Heights Avenue and Northern Parkway, it would certainly be doubly true in this instance.  There is no comparing the two locations *** primarily, going back to just after the war, the east side of Park Heights Avenue adjoining Quantico Avenue was residential and it was beginning to turn, house by house, to commercial use at that time.  Since that time, I believe that all of the property or about all of the property fronting on Park Heights Avenue is in commercial use *** the warehouse across the street from this property has been erected, and I note the increased use of the property on Pimlico Road, which lies on the east side of Pimlico Road *** the homeowners have moved away from the neighborhood *** it has changed from a homeowners neighborhood 

 [*634]  to a neighborhood of renters, *** and the garages themselves have deteriorated to a point where I actually consider them a menace *** that the City would benefit by their removal and the erection of a substantial warehouse type of building.  *** There is no market that I am aware of for garages, particularly [***44]  since when the change of the size of the cars *** I don't think the present day cars could even maneuver into these garages.'
"Mr. Goldman then stated that the property could not be reasonably used for the construction of residential properties; that it would be economically unsound, and on an unsatisfactory site; that the attempt to develop this lot for residential purposes would be 'sheer economic suicide'; that financing for the construction of residential dwellings would be most difficult."
Richard M. Hutman, a well-qualified architect, testified that although perhaps 5 row houses could physically be built on the subject property, only 52 1/2% of the property is usable and he was of the opinion that to build such row houses "would be a very foolish action, and I would never advise a client to develop houses on this property." He further stated:
"The property across the street has been pointed out as a warehouse. Bounded on the two sides and also the rear is an alley. There is no particular attractive outlook and on the contrary, I would say it is a rather ugly situation.  I frankly don't see any reason why a person would want to build a residential [residence] on [***45]  this property."
There was no protest from any one at the hearing before the Board.  As indicated, all of the testimony was that on behalf of the applicants and all of the testimony was uncontradicted.
It seems clear to me that Mr. Goldman's statement that if it would be "economic suicide" to build residences on the Frankel land "it would certainly be doubly true in this instance" is a conservative statement.  In the Frankel case the 

 [*635]  Synagogue, Junior High School and the Jewish Community Center are all compatible uses with a possible residential use. Indeed the trial court in Frankel approved the testimony of the City's real estate expert and found as a fact that the presence of the orthodox Synagogue would create a market for residential properties.  Residences had actually been recently built and sold on Ken Oak Avenue, less than a full block away from the Frankel property.  The Synagogue, the Junior High School and the Jewish Community  [**522]  Center buildings are all attractive and well-built structures.  In the case at bar, however, a prospective residential builder would face a warehouse building to the north, the rear yards of butcher shops to [***46]  the immediate east and west, the rear yards of other commercial properties to the west and additional rear yards of rented residential properties to the east.  The long and acutely triangular property simply cannot be used for residential use or for apartment houses, synagogues, churches or any other use now permitted by the existing zoning restrictions.  In my opinion, the "uncontrovertible physical facts" support the uncontradicted testimony and compel this conclusion.  To hold otherwise seems to me to lose touch with economic reality.  For the constitutional guarantee against the taking of private property for public use without just compensation to be effective, it must be applied firmly on the earth and not in the clouds.  As Judge Collins, for the Court, so aptly pointed out in Hoffman v. City of Baltimore, 197 Md. 294, 306, 79 A. 2d 367 (1951):
"*** the duty of the courts not to substitute their judgment for the judgment of legislative or administrative authorities acting within their powers is no more imperative than the power and duty to set aside any purported exercise of such power which is in fact arbitrary, capricious or confiscatory.  In this respect zoning [***47]  can no more escape judicial review than any other purported exercise of the police power."
It may be added that the issue of an unconstitutional taking may be raised and considered by the Baltimore City Court upon an appeal from the Board denying a special exception, although generally the issue is raised and decided in an equity 

 [*636]  suit in which the application of the zoning ordinance to the particular piece of property is directly challenged.  Hoffman v. City of Baltimore, supra, (see page 305 of 197 Md.).
The majority seeks to distinguish the case at bar from the Frankel case on the grounds that there was no showing how much revenue was being derived from the rental of some of the garages, that the price at which the subject property was offered for sale was not stated, that there was no specific unsuccessful attempt to finance the building of houses given and that there was no evidence that the subject property could not be economically used for other permissible purposes such as a small apartment house, church or synagogue. But there was no such proof as this in the Frankel case, for the same good reason as here, that the "uncontrovertible physical facts"  [***48]  make such testimony unnecessary.  Any income the applicants may derive from the sporadic and uneconomic use of a few of these deteriorated garages, in my opinion, cannot result in a sufficient return on the subject property to prevent a holding of an unconstitutional taking by the operation of the present zoning restriction on the subject property. This necessarily limited revenue is not derived from residential uses and even this very limited use may possibly be prohibited by the provisions of Ordinance of the Mayor and City Council of Baltimore, No. 1162, approved April 4, 1962, upon the validity of which and its application to the subject property, however, no opinion is expressed.
In my opinion, also, the uncontradicted evidence before the Board and the uncontradictable facts already set forth, made the Board's action in declining to permit the exception or variance requested, arbitrary, unreasonable and discriminatory, as the questions to be decided were not fairly debatable upon the facts before the Board which required that the application be granted.  See Mayor and City Council of Baltimore v. Sapero, 230 Md. 291, 296, 186 A. 2d 884 (1962) and Offutt v. Board of  [***49]   Zoning Appeals, 204 Md. 551, 562, 105 A. 2d 219 (1954).
I would affirm.  

30 of 138 DOCUMENTS 

POINTER v. STATE 

No. 391, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 641; 212 A.2d 260; 1965 Md. LEXIS 591 

August 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Entrapment In Narcotics Case -- No Merit To Defense Of -- Trial Court Was Warranted In Finding That Defendant Was The Seller And Not The Agent Of The Narcotics Officer -- Conflicts In Testimony -- Trial Court Was Not Clearly Wrong In Resolving Them Adversely To Defendant.
Criminal Law -- Sale, Possession And Control Of Narcotics -- Evidence Was Sufficient To Convict.
Criminal Law -- Defendant Was Not Improperly Sentenced As Third Offender Where Two Prior Convictions Were Misdemeanors -- Code (1964 Cum. Supp.), Art. 27, Sec. 300(a), In Referring To Penalty For Third Offenders, Makes No Distinction Between Prior Misdemeanor And Felony Convictions.  

SYLLABUS:

John Edward Pointer was convicted in non-jury trials as a third offender in two cases of the sale, possession, and control of a narcotic drug and from the judgments entered thereon, he appeals.  

COUNSEL:
John F. Burgan for appellant.
Fred Oken, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Carville M. Downes, Assistant Attorney General, Charles E. Moylan, Jr. and Stanley  [***2]   S. Cohen, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee. 

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

OPINIONBY:
SYBERT 

OPINION:

 [*642]   [**260]  The appellant, Pointer, was convicted as a third offender in two cases of the sale, possession, and control of a narcotic drug, after non-jury trials.  He was sentenced to two concurrent fifteen year terms in the penitentiary.

 [*643]  The appellant's first two contentions on this appeal are that he was entrapped by the federal narcotics officer who testified appellant sold him heroin twice, and that he was merely the agent of the officer so that his sale, possession and control of the  [**261]  drug were those of the officer.  The officer's testimony was that appellant approached him and asked whether he wanted to buy some heroin, saying it was "all right" to do business with him.  The officer gave him $ 30.00 for heroin, but he left and did not return.  The officer saw appellant some weeks later, and, after an excuse concerning the $ 30.00, appellant asked whether the officer wanted to buy any heroin [***3]  at that time.  After receiving an affirmative reply, appellant procured a quantity of heroin and handed it to the officer, who paid him $ 20.00.  Three days later, under similar circumstances, appellant again sold heroin to the officer.
Testifying in his own behalf, appellant admitted that he had received $ 30.00 from the officer on the first occasion and that he had promised, but failed, to deliver heroin. He contended that the officer had approached him.  He said that when he met the officer on the second occasion the latter asked him about the money and stated that "he would jump on my chest if I didn't return his $ 30.00." The officer then handed him $ 20.00 and told him to get him "two decks".  Appellant said he kept this money also and never delivered any heroin to the officer.  He denied that he met with the officer on the third occasion.  He admitted that he had previously been convicted of narcotics law violations in 1951 and 1955, and that he was a user of heroin.
Appellant bases his defense of entrapment upon the claim that there was "repeated and persistent solicitation" by the federal officer (the latter's testimony was that each illegal transaction originated with [***4]  appellant); upon the assertion that between the first and second contacts the officer "openly searched" for him and that this amounted to harassment (the officer testified that the only effort he made to find appellant was to ask several persons where he lived); and upon the claim that at the second meeting the officer threatened him (obviously not believed by the trial judge).  The alleged entrapment relied on here is little different from that unsuccessfully asserted in Cross v. State, 235 Md. 377, 

 [*644]  201 A. 2d 767 (1964), Snead v. State, 234 Md. 63, 65-66, 197 A. 2d 920 (1964), and Stewart v. State, 232 Md. 318, 321-322, 193 A. 2d 40 (1963). As to whether appellant was merely the agent of the officer, we think the latter's testimony, if believed, that appellant approached him and asked on each occasion whether he wished to buy heroin, warranted the trial court in finding that appellant was the seller and not an agent.  The circumstances as testified to by the officer are quite similar to the facts in Snead v. State, supra (at p. 66 of 234 Md.), and we find that case controlling.  See also State v. Brown, 235 Md. 401, 201 A. 2d 852 (1964); Stewart v.  [***5]   State, supra (at p. 322 of 232 Md.).  We cannot say the trial court was clearly wrong in resolving the conflicts in the testimony adversely to appellant.
It is also urged that the evidence was insufficient to support the convictions, but, without repeating it, we think the evidence produced by the State, coupled with the admissions of appellant, was ample for that purpose.  Brewer v. State, 229 Md. 251, 182 A. 2d 883 (1962). On this issue appellant advanced certain contentions, but we find them immaterial and therefore shall not detail them here.
Finally, appellant maintains that he was improperly sentenced as a third offender because his two prior convictions were misdemeanors under Code (1957), Art. 27, sec. 300, before that section was amended by Ch. 772 of the Acts of 1963 and Ch. 55 of the Acts of 1964 to make such offenses felonies. This contention is devoid of merit since Code (1964 Cum. Supp.), Art. 27, sec. 300(a), in referring to the penalty for third offenders, makes no distinction between prior misdemeanor and felony convictions.  Murray v. State, 236 Md. 375, 380-381, 203 A. 2d 908 (1964); Gans v. Warden, 233 Md. 626, 628, 196 A. 2d 632 (1964).
Judgments  [***6]   affirmed.  

31 of 138 DOCUMENTS 

FRANKLIN v. STATE 

No. 398, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 645; 212 A.2d 279; 1965 Md. LEXIS 592 

August 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Defendant's Constitutional Right Of Confrontation Not Violated Where Right To Cross-Examine Was Denied As Result Of Informer Invoking Privilege Against Self-Incrimination -- Informer, Who Was Called As Witness By Defendant, Was Under Indictment For Narcotics Law Violations -- There Was Good Faith, Reasonable Basis For Claim Of Privilege, Lower Court Properly Refused To Compel Witness To Testify -- Supreme Court Cases Do Not Hold Right Of Confrontation And Cross-Examination Paramount To Right Of Refusing To Incriminate Oneself.
Narcotic Drugs -- Evidence Legally Sufficient To Sustain Conviction For Sale Of, Even Though State Did Not Call Informer As Witness -- Testimony Of Informer Was Not Essential To State's Case.  

SYLLABUS:

Benjamin Franklin was convicted of selling narcotic drugs by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
Juanita Jackson Mitchell for appellant.
Julius A. Romano, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General and Charles E. Moylan, Jr., State's Attorney  [***2]   for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
HORNEY 

OPINION:

 [*646]   [**280]  The principal question presented by this appeal from convictions for the sale of narcotics is whether the defendant was denied the right of confrontation as the result of an informer invoking the privilege against self-incrimination. An additional question is raised as to the sufficiency of the evidence.
On an evening in February 1964 an officer of the Baltimore City narcotics squad and an informer went to a bar on West Saratoga Street.  On entering, the informer engaged in a conversation with the defendant.  Shortly thereafter the officer and informer left, went to the parked automobile of the informer and got in the front seat.  The defendant followed, got in the rear seat and asked "how much" was wanted.  He was told they wanted "one" and the officer handed the defendant nine dollars, whereupon the defendant left the automobile and returned promptly with a glassine envelope and gave it to the officer.  On the next evening, the officer, the informer and the defendant followed [***3]  a similar routine.  On this occasion, the defendant returned to the automobile with two glassine envelopes and received twenty dollars in return.  Subsequent chemical analyses showed that the envelopes contained heroin. Approximately five months later, the officer obtained a warrant and arrested the defendant, who, upon being interrogated, denied ever having seen the officer.
At the trial, the officer, besides relating the aforegoing incidents, positively identified the defendant as the person who had sold him the heroin. In his defense, the defendant called a friend who testified that on both of the days the defendant was charged with selling heroin he had been in Washington, D.C., and not in Baltimore.  The State, in rebuttal, produced a federal narcotics agent, who had worked with the city officer.  The agent testified that he had observed the meetings between the city officer, informer and defendant on both occasions.  No other witnesses were called by the State, and the defendant decided not to testify.
The informer was called as a witness by the defendant and sworn.  When he was asked whether or not he was a paid informer, he refused to answer the question on the ground that [***4]  

 [*647]  it might incriminate him.  At the ensuing colloquy between the trial judge and defense counsel, the latter sought to have the court order the witness to answer the question.  But the trial judge, who had knowledge of indictments charging the informer with violations of the narcotics law and other offenses and who knew that this was the reason the informer had claimed the privilege, thought it would be useless, as well as unfair, to continue with the examination and excused the witness.  The defendant made no proffer of what the witness would have testified to had he been compelled to do so and his counsel expressed no desire to propound further questions to the witness.
The lower court, choosing to believe the testimony of the city officer and federal agent rather than the testimony of the alibi witness, found the defendant guilty of making both sales and sentenced him to  [**281]  concurrent terms of imprisonment.  This appeal followed.
(i)
The contention of the appellant that his inability to "cross-examine" the informer because he was allowed to invoke his constitutional right not "to be compelled to give evidence against himself" n1 was a denial of the constitutional [***5]  right of the appellant "to be confronted with the witnesses against him" n2 is clearly without substance.

n1 Article 22 of the Maryland Declaration of Rights.
n2 Article 21 of the Maryland Declaration of Rights.

The right of an accused to be confronted with the witnesses against him is not only guaranteed by Article 21 of the Maryland Declaration of Rights but is also available under the Fourteenth Amendment to the Constitution of the United States in that the right given by the Sixth Amendment was made obligatory on the states in Pointer v. Texas, 380 U.S. 400 (1965) and Douglas v. Alabama, 380 U.S. 415 (1965). And, since Pointer, there is no room for doubt that the right to cross-examine is inherent in the right of the accused to be confronted with the witnesses against him in a criminal case.  But neither Pointer nor Douglas, on which the appellant relies, is authority for the proposition that he had a right to compel a witness (summoned but not used by the State), who claimed the [***6]  privilege against 

 [*648]  self-incrimination, to give evidence against himself.  In Pointer, where the transcribed testimony of a witness (whom the accused in the absence of counsel did not cross-examine at a preliminary hearing) was offered as evidence during the court trial at which the witness was not available to be cross-examined, it was held that the receipt of such testimony was a violation of the right of the accused to confront and cross-examine the witness against him.  In Douglas, where an accomplice of the accused (whose appeal from the conviction of the same offense was still pending) refused to testify and the prosecution nevertheless proceeded to read a confession allegedly made by the accomplice (in which he had also implicated the accused) under the guise of cross-examining him as a hostile witness, it was held that the inability of the accused to cross-examine the witness (as the prosecution had done in a form not subject to cross-examination) was a denial of the right of confrontation. n3 Obviously both cases prohibit the use of accusatory testimony of a witness wherever it is shown that the accused was not given an opportunity to cross-examine the witness [***7]  who gave it, but neither case is interpretable as holding, as the appellant would have us do, that the right of confrontation and cross-examination is paramount to the right of refusing to incriminate oneself.

n3 The cross-examination was accomplished by the prosecutor reading the several parts of the confession involving the accused he wanted the jury to hear and then asking the witness if he had not made the statements read.  On each occasion the witness instead of answering the questions propounded relied on his privilege to refuse to answer.

In the case at bar, where the informer was called as a witness by the appellant instead of by the State and where there was substantial reason for the witness to refuse to give evidence that might incriminate him, it is clear that no right of the appellant was violated.  A situation similar to the one in this case was before this Court in Royal v. State, 236 Md. 443, 204 A. 2d 500 (1964). There it was said that the privilege against self-incrimination is a personal [***8]  one which only the witness may assert.  Since the record shows that the refusal to testify was made in good faith and that there was a reasonable basis for claiming 

 [*649]  the privilege, we think the lower court properly refused to compel the witness to testify.  See Midgett v. State, 223 Md. 282, 164 A. 2d 526 (1960), cert. den. 365 U.S. 853 (1961).
(ii)
Even though the State did not call the informer to testify in its behalf, it is apparent, as the recital of facts shows, that there was legally sufficient evidence from which the trial court could find the appellant guilty of selling narcotics beyond a reasonable doubt.  Moreover, since the testimony of the informer was not essential to the completeness of the case for the State, there was no requirement to call him as a witness.  No claim is made that the appellant acted as an agent of the officer or of the informer or as a go-between.  See Snead v. State, 234 Md. 63, 197 A. 2d 920 (1964); Brewer v. State, 229 Md. 251, 182 A. 2d 883 (1962).
Judgment affirmed.  

32 of 138 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.  

33 of 138 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.  

34 of 138 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.  

35 of 138 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.  

36 of 138 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.  

37 of 138 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.  

38 of 138 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.  

39 of 138 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.  

40 of 138 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.  

41 of 138 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.  

42 of 138 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.  

43 of 138 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.  

44 of 138 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.  

45 of 138 DOCUMENTS 

BURLEY v. STATE 

No. 335, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 342; 211 A.2d 714; 1965 Md. LEXIS 555 

June 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

Appeal -- Denial Of Motion For A New Trial Generally Not Reviewable By Court Of Appeals Except Where Trial Court Refuses To Consider Newly Discovered Evidence Relating To The Motion.
Appeal -- Code (1964 Supp.), Art. 27, Sec. 645A (b), Bars A Direct Appeal From An Order Denying A Motion To Strike Out A Judgment And Sentence.
Post Conviction Procedure Act -- Where Appellant Filed A Motion "To Set Aside The Verdict And Grant Him A New Trial" On The Ground Of "Newly Discovered Evidence" He Should Have Sought Relief Under The Act -- Appellant Has Right To Have Application Heard At Trial Court Level -- Court Held That It Would Transfer Appeal To Docket Containing Applications For Leave To Appeal If Appellant Filed Proper Affidavit.  

SYLLABUS:

Leroy Mark Burley was convicted in the Criminal Court of Baltimore, and sentenced to five years confinement.  From the trial court's order denying his motion to set aside the verdict and grant him a new trial, he appeals.  

COUNSEL:
James R. White for appellant.
Julius A. Romano, Assistant Attorney General, with whom were Thomas B. Finan, Attorney  [***2]   General, Charles E. Moylan, Jr., and John E. deKowzan, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*343]   [**714]  Appellant was convicted, on December 6, 1960, by Judge Cullen in the Criminal Court of Baltimore, and sentenced to five years' confinement.  He appealed and this Court affirmed.  Burley v. State, 226 Md. 94. On, or about, May 7, 1964, he filed a motion "to set aside the verdict and grant him a new trial," on the ground of "newly discovered evidence." Judge Cullen, after hearing the newly discovered evidence, denied the motion and the present appeal resulted.
Appellant contends that Maryland Rule 764 b grants revisory power over judgments entered in their courts to the trial judges 

 [*344]  in cases of "fraud, mistake or irregularity," and it was a gross abuse of discretion by  [**715]  Judge Cullen in denying his motion.  The State, on the other hand, argues that the court's order is not an appealable one, and we agree.
If appellant's [***3]  motion be treated as one for a new trial and if it had been timely filed, it would have been heard by the Supreme Bench of Baltimore City.  And under the general rule, the court's action in denying a motion for a new trial is not reviewable by this Court.  Colter v. State, 219 Md. 190; Thomas v. State, 215 Md. 558 (decided prior to the effective date of the U.P.C.P.A., hereafter referred to as "the Act") Brady v. State, 222 Md. 442; Code (1964 Supp.), Article 27, Section 645 A (b).  Cf. Shields v. State, 224 Md. 485. We recognized an exception to the general rule where the trial court refused even to consider newly discovered evidence relating to a motion for a new trial. Wash., B. & A. R. Co., v. Kimmey, 141 Md. 243. Cf. Hanley v. Stulman, 216 Md. 461. The instant case comes within the purview of the general rule. (For a case stating the rule relative to civil actions, see B. J. Linthicum's Sons, Inc. v. Stack, 213 Md. 344.)
On the other hand, if the motion be treated as one to strike out a judgment and sentence, it is clear that Article 27, Section 645A (b), supra, bars a direct appeal from an order denying the motion.  Brady v. State; Shields  [***4]   v. State, both supra.  The objectives and purposes of the Act are stated in Brady; we shall not restate them here.  The direct appeal must, therefore, be dismissed.
If the appellant desires this Court to review the action of the trial court in ruling upon his motion, he should seek relief under the provisions of the Act.  As Judge Cullen heard the "newly discovered evidence" and it is printed in the record extract, the record, itself, is sufficient for our review.  However, if proceedings be brought under the Act, the appellant has a right at the trial court level, if he so elects, to have his application heard, in the first instance, by a judge other than Judge Cullen, who sat in appellant's original trial.  Maryland Rule BK 44 c. For the sake of economy in time and costs, we shall order this appeal transferred to our docket which contains the applications for leave to appeal to this Court under the Act and consider 

 [*345]  the case in that light upon the arguments made and briefs filed herein; provided both the appellant and the State make a request to this effect, and the appellant files a written affidavit stating that such procedure has been fully explained to him,  [***5]  and he understands that he has a right to have a judge other than Judge Cullen sit at the trial court level in hearing his application for relief under the Act, but he still desires the suggested procedure followed and said affidavit is accompanied by a written statement of his counsel that he has explained to appellant in detail the proposed procedure.
Appeal dismissed.  

46 of 138 DOCUMENTS 

GOAD v. STATE 

No. 354, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 345; 211 A.2d 337; 1965 Md. LEXIS 556 

June 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment reversed, and case remanded for a new trial; costs to be paid by the Mayor and City Council of Baltimore. 

HEADNOTES:

Arrest -- Without Warrant For Misdemeanor Not Committed In Arresting Officers' Presence, Held Illegal.  Appellant was arrested for the breaking and entering of a warehouse, which, even with intent to steal goods of the value of $ 100 or upwards, although punishable by confinement of up to ten years, is still, in Maryland a misdemeanor. The crime was not committed in the presence, or within the view, of the arresting officers.  The State contended that the officers, who had information that a man was seen coming out of a warehouse late at night, had probable cause to believe that a felony had been committed, and that appellant had committed it.  However, this Court was unable to discover in the evidence wherein the officers had sufficient knowledge or information that a felony had been committed and held the arrest illegal and the consequent search and seizure unreasonable.  The testimony of one of the arresting officers showed that he was under the mistaken idea that breaking and entering [***2]  of a warehouse constituted a felony. The Court noted that larceny of goods of the value of $ 100.00 or more is a felony, but, at the time of the arrest, the officers had no information that anything had been taken from the warehouse, and the officers made no claim that appellant was being arrested for an alleged larceny or any other felony. Hence, assuming the officers had probable cause to believe there had been a breaking and entering of the warehouse and the intruder intended to steal everything he could (without any knowledge or information that anything was stolen), still, the offense would only constitute a misdemeanor, which, not having been committed in the presence, or view, of the officers, did not justify appellant's arrest without a warrant.  

SYLLABUS:

Neal L. Goad was convicted of breaking into a warehouse and stealing therefrom goods and chattels of the value of $ 15.25 by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
Paul Smelkinson 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 [***3]  , on the brief, for appellee.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*346]   [**338]  This case again points out the handicaps under which peace officers in Maryland frequently find themselves due to the unusual distinctions between felonies and misdemeanors in this State.  David Kauffman, in an able and widely-read article, pointed out some of the problems arising therefrom as early as 1941.  See 5 Md. L. Rev. 125. Five years ago, this Court called attention to the fact that these problems still persisted then, and they could be dealt with by legislative, but not judicial, action.  

 [*347]  Oden v. State, 222 Md. 325. The problems, for the main part, are still existent.
Appellant was convicted of unlawfully breaking into a warehouse in Baltimore City and stealing therefrom goods and chattels of the value of $ 15.25.  Code (1957), Article 27, §  33.
The only question for our determination is whether or not the defendant's arrest was illegal, for the State, quite properly, concedes that if his arrest were illegal, the search of his person immediately thereafter [***4]  was unreasonable and the personal property seized as a result of the search should not have been received into evidence.
At about 12:15 a.m. on February 5, 1964, the burglar alarm of the warehouse involved went off.  Within minutes, a representative of the National Detective Corporation, a Mr. Gaugh, was on the scene.  He discovered two men there: one was coming out of a window of the warehouse; the other was outside, coming over a hill at the rear of the building.  Gaugh radioed his office to inform the police.  Unfortunately,  [**339]  he was unable to get a good view of either of the men and therefore was not able to give the police, when they arrived, a detailed description of them.  The only description he gave to the police was that one of the men was wearing a "black three-quarter length coat." (It would be interesting to know how many men in Baltimore were wearing this type of coat in February, 1964.) This was the description of the suspect that was broadcast by the police.  The man wearing the above mentioned coat ran across a road, and just beyond the road was a stream. Gaugh's testimony seems to indicate that the man wearing the overcoat was the one he saw coming out [***5]  of the window, but he does not say so with certainty; nor did he make it clear that the two were acting in concert.  He did not at anytime, including the time of trial, identify the appellant, and frankly admitted that he could not.
Officer Marslett, together with Officer Wheatley, was parked in a cruising police car nearby.  After hearing by broadcast of the entry, they went to the scene.  They learned that the two men had fled, and that the one wearing the black coat had run in the direction of the stream. They began cruising the area.  At about 12:45 a.m., they observed the appellant walking on a 

 [*348]  grass plot close to Jones Falls Expressway at North Avenue.  This was, perhaps, a half-mile from the warehouse. They hailed the appellant, and, after observing he was wet from the waist down, immediately arrested and searched him.  The search produced a flashlight, a transistor radio, and a screwdriver which were admitted in evidence over objection.  (The flashlight and radio were later identified by employees at the warehouse as having been rifled from their desk drawers.) The officer testified that appellant was arrested because "there was a felony committed in the area."  [***6]  When asked, "What felony?", he replied, "Breaking and Entering." (Breaking and entering a warehouse, as distinguished from breaking and entering a dwelling in the nighttime, is still a misdemeanor in Maryland.) There were, of course, additional facts, but the above are all that are pertinent to the question we must answer.
Appellant argues that his arrest, without a warrant, was made not for a misdemeanor committed in the presence, or the view, of the arresting officers, and at a time when the police did not have probable cause to believe that a felony had been committed, and he had committed it; hence his arrest was illegal.  The State concedes that the arrest was not made for a misdemeanor committed in the presence, or view, of the officers, but earnestly contends that the officers had probable cause to believe that a felony had been committed, and that appellant had committed it; consequently, the arrest was legal.  Our answer to these contentions will, unquestionably, be discouraging to an obviously good piece of police work, but it is dictated by authority beyond our control.
Before the decision of the Supreme Court in Mapp v. Ohio, 367 U.S. 643 (1961) which flatly reversed [***7]  its previous decision in Wolf v. Colorado, 338 U.S. 25, and held that in a State criminal prosecution evidence which had been secured as a result of an unreasonble search and seizure was inadmissible, this Court, consistently, had held (with certain statutory exceptions) such evidence admissible.  This Court reasoned that if a person be indicted by a Grand Jury for taking another's life, ravishing his wife, or stealing his life's earnings, the determination of the guilt or innocence of such a person should not be considered as a sporting event, to be governed by the Marquis 

 [*349]  of Queensberry Rules, but by a practical and actual determination of the guilt, vel non, of the indictee, with the State, in order to prevail, being required to establish guilt beyond any reasonable doubt and to a moral certainty to the unanimous satisfaction of twelve of defendant's peers, when a jury trial is elected, which, in this State, is at the option of the accused.  It is difficult to  [**340]  discern wherein this procedure fails to afford a defendant in a criminal prosecution every reasonable and just right to which he is entitled, and, if the accused be actually guilty, the logic [***8]  of having the determination of this guilt and the possible punishment therefor depend upon whether an arresting officer has as much knowledge as an appellate court concerning what is and what is not technically "a legal arrest" is hard for some to follow.  The practicality, if indeed not the good sense, of the Court of Appeals' reasoning seems to be confirmed, at least in part, by the following short excerpts from the recent case of Linkletter v. Walker, 381 U.S. 618, wherein it is stated: "But there is no likelihood of unreliability [of the evidence] or coercion present in a search and seizure case.  Rather than being abhorrent at the time of seizure in this case, the use in State trials of illegally seized evidence had been specifically authorized by this Court in Wolf.  * * *.  Here, as we have pointed out, the fairness of the trial is not under attack.  All that petitioner attacks is the admissibility of evidence, the reliability and relevancy of which is not questioned, *** [which is exactly the situation we have in the case at bar]." (Italics ours.) The law, of course, provides a civil remedy for persons who are illegally arrested, or are the subjects of unreasonable [***9]  searches or seizures. We proceed to a determination of the question involved herein.
The appellant committed no crime in the presence, or within the view, of the arresting officers; hence the legality of his arrest without a warrant depended upon whether the officers had probable cause to believe that a felony had been committed and appellant had committed it.  Probable cause to believe that a felony had been committed and that appellant committed it, as here used, exists where the facts and circumstances within the arresting officers' knowledge and of which they have reasonably trustworthy information are sufficient, in themselves, 

 [*350]  to warrant a man of reasonable caution to believe that a felony has been committed and appellant committed it.  Price v. State, 227 Md. 28; Farrow v. State, 233 Md. 526. We have been unable to discover in the evidence wherein the officers had sufficient knowledge or information that a felony had been committed.  True they had information that a man was seen coming out of a warehouse late at night, but the breaking and entering of a warehouse, even with intent to steal goods of the value of $ 100 or upwards although punishable by [***10]  confinement of up to ten years, is still, in Maryland a misdemeanor. The testimony of one of the arresting officers shows that he was under the mistaken idea that it constituted a felony. Larceny of goods of the value of $ 100 or more is a felony, but, at the time of the arrest, the officers had no information that anything had been taken from the warehouse, and the officers made no claim that appellant was being arrested for an alleged larceny or any other felony. Hence, if we assume that the officers had probable cause to believe there had been a breaking and entering of the warehouse and the intruder intended to steal everything he could (without any knowledge or information that anything was stolen), still, under the unusual treatment of crimes in this State, the offense would only constitute a misdemeanor, which, not having been committed in the presence, or view, of the officers, would not justify appellant's arrest without a warrant.  As the arrest was illegal, the search for, and seizure of, the property, as an incidence thereto, were unreasonable; consequently, this property should not have been received as evidence.
Judgment reversed, and case remanded for a new trial;  [***11]   costs to be paid by the Mayor and City Council of Baltimore.  

47 of 138 DOCUMENTS 

BAKER v. BAKER 

No. 363, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 351; 211 A.2d 320; 1965 Md. LEXIS 557 

June 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Oppenheimer, J.  

DISPOSITION:
Judgment affirmed, appellant to pay the costs.  

HEADNOTES:

Automobiles -- Sufficient Evidence For Case To Go To Jury On Issues Of Appellant's Negligence -- Motion For Directed Verdict Properly Denied -- Trial Court Instructed Jury In Language Of Code As To Driving At Speed That Is Reasonable And Prudent Under Existing Circumstances -- Evidence Was Conflicting And Contradictory As To Material Facts -- Question Of Whether Negligence Of Appellant, Including Violation Of Statutory Provisions, Was A Proximate Cause Of Accident, Could Only Be Answered By Jury.
Automobiles -- Record Included Testimony As To Alcohol Consumption Prior To Accident -- No Error In Refusing To Instruct Jury That Appellant Was Not Under Influence Of Intoxicating Liquor At Time Of Accident -- Question Was Within Province Of Jury To Determine.  

SYLLABUS:

Action by Donald E. Baker against Robert Baker arising out of the alleged negligent operation of an automobile.  From the judgment entered upon a jury verdict in favor of the plaintiff, defendant appeals.  

COUNSEL:
Milton I. Vogelhut and Robert J. Thieblot for appellant.
Edward Pierson, with whom [***2]  was John S. Collins on the brief, for appellee.  

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

OPINIONBY:
MARBURY 

OPINION:

 [*352]   [**321]  This is an appeal by Robert Baker, one of the defendants below, from a judgment entered upon a jury's verdict in the Baltimore City Court in favor of his brother, Donald E. Baker, plaintiff below and appellee here.  The verdict was also against Edward James Coates and Paper Coating and Converting Company, Inc., co-defendants.  The latter two defendants appealed but dismissed their appeals.  Robert Baker's appeal is founded upon the failure of the trial court to direct a verdict in his favor upon application seasonably made at the close of the plaintiff's case and renewed at the close of all the evidence, and upon motion for judgment n.o.v. or for a new trial as subsequently made; and upon the failure of the trial court to instruct the jury that there was no legally sufficient evidence in the case that the appellant was operating his vehicle while under the influence of intoxicating liquor immediately before the accident for which suit was brought.
Robert Baker was driving his car in [***3]  an easterly direction on Central Avenue in the Seat Pleasant area of Prince George's County, approaching its intersection with 86th Avenue.  This intersection is in the form of a "T", with Central Avenue the head and 86th Avenue the shaft of the "T".  Traffic entering Central Avenue from 86th Avenue is controlled by a stop sign.  A hill on Central Avenue is 171 feet west of the intersection. Central Avenue at the time of the accident was blacktop macadam, with one lane in each direction, and had a posted speed limit of fifty miles per hour.  The accident occurred in the early afternoon of March 25, 1960, on a clear and sunny day.  Passengers in the car were Kathryn Dancha, sitting next to the driver, and appellee to her right.
Appellant testified that as he came over the crest of the hill he saw a truck, operated by the defendant Coates.  It displayed no turn signals, but approximately seventy-five or eighty feet from the intersection the truck made a left turn into 86th Avenue in front of him blocking his entire lane of travel.  He applied the brakes, turned the car to the left, shouted to his brother whom he grabbed by the shoulder and pulled down on the seat.  The point of impact [***4]  between the two vehicles was the 

 [*353]  right rear of the truck and the right side of appellant's car.  He stated that he was familiar with the intersection since he had lived in the area prior to the time of the accident.
Coates, the driver of the truck, testified that before beginning his turn into 86th Avenue he brought his truck to a standstill, with the turn signals on, at which time he did not see any traffic approaching from the west on Central Avenue.  He then began his turn, proceeded a distance of five feet when he again looked west and still did not see any traffic approaching. Coates described his truck as being a two and one-half ton, van type model, about seven feet wide and twenty-five feet long.
Donald Baker's testimony was not consistent.  At one time he said that when he first saw the truck, it was about one-quarter of the way across the road; at another time, that when he first saw it, it was entirely in its lane; and at still another, that he vaguely remembered seeing it in its lane and then saw it turn.  Kathryn Dancha,  [**322]  now appellant's wife, was also inconsistent as to the position of the truck in the intersection.
The record indicates that [***5]  the Baker brothers each had two beers some time before the accident.  The investigating officer noted that appellant had been drinking but did not charge him with driving under the influence of intoxicating liquor. After the accident, Kathryn Dancha threw a pint bottle of whiskey out of the car.
The appellant contends that his motion for a directed verdict should have been granted since there was insufficient evidence to go to the jury on any issue of his negligence; and that the trial court committed prejudicial error in refusing to instruct the jury that he was not under the influence of intoxicating liquor at the time of the accident.
We do not agree with the appellant's first contention.  The trial court instructed the jury in the language of the Code (1957), Article 66 1/2, Section 211 (a) and (e), that no person shall drive a vehicle on a highway at a greater speed than is reasonable and prudent under the circumstances then existing; and that the fact that the speed of a vehicle is lower than the prescribed limit does not relieve the driver from the duty to decrease speed when approaching a hill crest. He also instructed the jury that speed shall be decreased as may be necessary [***6]  

 [*354]  to avoid colliding with any person or vehicle on or entering the highway in compliance with the duty of all persons to use reasonable care.  The issue presented here is whether appellant's violation of these statutory provisions was the sole or a contributing cause of the ensuing accident, and whether there was some negligence attributable to him which contributed to the accident and appellee's injuries.
The evidence was conflicting and contradictory as to many of the material facts, and there were inferences which might be drawn from these facts, such as how far the truck had turned before it was first seen by the appellant; whether Baker could have turned to the left and crossed in the rear of the truck and thus have avoided the accident; whether the appellant was traveling at a reasonable speed preceding the accident under the circumstances presented; whether the truck was displaying a left turn signal; whether the appellant, familiar with the intersection, could reasonably have been expected to anticipate a vehicle making a turn at the intersection; and the effect of the appellant's alcohol consumption prior to the accident.  These were issues having to do with the [***7]  question whether any negligence of the appellant was a proximate cause of the accident, which only the jury could answer.  Tates v. Toney, 231 Md. 9, 188 A. 2d 283; Meldrum v. Kellam Distr. Co., 211 Md. 504; 128 A. 2d 400. The trial judge was correct in permitting the evidence to go to the jury on the issue of appellant's negligence.
The appellant's second contention is without merit.  The officer investigating the accident noted that the appellant had been drinking. The record shows that the brothers admitted drinking two beers prior to the accident.  It was within the province of the jury to determine whether appellant was actually under the influence of intoxicating liquor and whether this contributed to the accident.  We find no error on the part of the trial judge in declining to instruct the jury that appellant was not under the influence of intoxicating liquor at the time the accident occurred.
Judgment affirmed, appellant to pay the costs.  

48 of 138 DOCUMENTS 

JOHNSON v. STATE 

No. 360-A, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 696; 211 A.2d 335; 1965 Md. LEXIS 599 

June 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Robbery -- Identifications By Victim Were Sufficient To Support Conviction -- In Addition, Testimony As To Flight From Police Had Probative Value Under Circumstances Of Case.  

SYLLABUS:

Rudolph Johnson was convicted of robbery by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted on brief by Joel L. Levin for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, R. Randolph Victor, 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:
Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*696]   [**335]  After being convicted of robbery by Judge Shirley B. Jones, sitting without a jury in the Criminal Court of Baltimore, the appellant Johnson was sentenced to a term of six years.  His sole contention on appeal is that the evidence produced by the State was not sufficient to support his conviction.
The victim of the robbery was a Mrs. Georgianna [***2]  Sinkler, who testified that while she was walking home from work late 

 [*697]  at night, two young men jumped her and one put his hand over her mouth and choked her while the other, the appellant Johnson, violently tore her purse from her hand.  About five minutes later the police arrived and drove her in the direction her assailants had run.  Within four blocks of the crime they came upon two boys who ran when they saw the police car.  Mrs. Sinkler immediately identified them as the two who had robbed her.  The next morning she picked out the same two boys as her assailants in a police line-up.  Finally, at the trial she repeated her identifications.
It is clear that the identifications by Mrs. Sinkler were enough to support  [**336]  the conviction.  Bailey v. State, 226 Md. 353. In addition, the testimony as to the flight of the appellants from the police had probative value under the circumstances.  Braxton v. State, 234 Md. 1, 4.
Judgment affirmed.  

49 of 138 DOCUMENTS 

TATE v. STATE 

No. 360-B, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 697; 211 A.2d 336; 1965 Md. LEXIS 600 

June 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Guilty Plea -- No Substance To Contention That Plea Was Not Voluntarily And Intelligently Made Because Of Appellant's Youth And Lack Of Understanding As To What He Was Pleading Guilty.  

SYLLABUS:

Gregory W. Tate pleaded guilty to the charge of robbery and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted on brief by Gilbert A. Hoffman for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, R. Randolph Victor, 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:
Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*698]   [**336]  The appellant Tate was indicted on a five-count indictment which included a count charging robbery. He plead guilty in open court to the robbery count and was sentenced to three years by Judge Shirley B. Jones.  On this appeal he contends that his guilty plea was not knowingly and understandingly made and was improperly received and ineffective because [***2]  of his youth and because he did not understand to what he was pleading guilty.
The record refutes the appellant's claims.  Tate was sixteen years old and had completed the ninth grade in school.  He had been working for several years at an advertising company.  At the outset of the trial appellant's attorney asked him the following questions:

"Q. Are you aware of the reason you are in this court today?  A. Yes.
Q. You understand that you have been charged with robbery? A. Yes.
Q. Do you understand that the penalty if convicted of this crime is from three to ten years?  A. Yes.
Q. Now, Gregory, I have explained to you, haven't I, that you have a right to plead not guilty and take a court or jury trial?  Do you understand that?  A. Yes.
 [**337]  Q. You informed me that you wanted to plead guilty? A. Yes.
Q. You do?  A. Yes.
Q. You understand that by your plea of guilty this Court or the State's Attorney cannot make any promises to you?  A. Yes.

 [*699]  Q. Do you understand that?  A. Yes.
Q. This doesn't mean that you are going to get probation.  You understand that?  A. Yes.
Q. It is up to Her Honor to determine what disposition will be made of your case.  [***3]  A. Yes.
Q. Has anybody coerced you or made any promises to you to enter into this plea?  A. No, sir." (emphasis supplied)

Later Tate's lawyer asked him on the stand:

"Q. Have you been satisfied with the advice I have given you, Mr. Tate?  A. Yes.
Q. Have I called the witnesses and interviewed the persons you wanted me to interview?  A. Yes."

Tate's counsel thereafter said to him at the suggestion of the judge:

"Do you understand that actually you don't have to be sentenced today.  If you think there is something wrong with your trial you can file a motion for a new trial and it can be heard by the Judges of the Supreme Bench.  If you are sentenced now, then you have thirty days in which to appeal to the Court of Appeals.  Do you understand that?"

and Tate replied "Yes."
It is clear that there is no substance to the appellant's contention that his plea was not voluntarily and intelligently made.  Gleaton v. State, 235 Md. 271; Berndt v. State, 235 Md. 565.
Judgment affirmed.  

50 of 138 DOCUMENTS 

DAUBERT v. DAUBERT 

No. 339, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 303; 211 A.2d 323; 1965 Md. LEXIS 549 

June 25, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Prendergast, J.  

DISPOSITION:
Decree affirmed; costs to be paid by appellant.  

HEADNOTES:

Custody of Infants -- Paramount Consideration Is The Welfare Of The Child.
Custody of Infants -- Award Of Six Year Old Boy To Father Held Not To Be Wrong In View Of All The Circumstances Present Here.  

SYLLABUS:

Petition for custody of three minor children by their father, John M. Daubert.  From a decree awarding custody of one of the children, a six year old boy, to the father, the mother, Patricia Gay Daubert, appeals.  

COUNSEL:
W. Walter Fernandis for appellant.
Edward S. Vidali, with whom were Fair, Vidali, Wagner & Evering on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Marbury, Sybert and Oppenheimer, JJ.  Oppenheimer, J., delivered the majority opinion of the Court.  Hammond, J., dissents.  Dissenting opinion at p. 310, infra.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*303]   [**324]  This case involves the custody of a six year old boy whose parents have been divorced. The parents, John M. Daubert and Patricia G. Williams, were married on December 14, 1952.  

 [*304]  They have three children, two daughters, Debra and [***2]  Darlene, now eleven and four years old respectively, and a son, Michael.  The Dauberts separated in 1961.  On April 2, 1963, the father, John Daubert, obtained a decree of absolute divorce on the ground of constructive desertion.  The wife did not oppose the bill.  The custody of all three children was awarded to the mother and the father was directed to pay twenty-five dollars a week for their support, which he has done.  At the time of the divorce, Daubert testified that his wife was a fit and proper person to have the custody of the children.  He now states that he so testified because at that time he was unable to provide a proper home for the children.
About one year prior to the separation of the Dauberts, they voluntarily agreed to send Michael to the home of his mother's parents, James and Elsie Williams; at that time both of the Dauberts were working.  Michael needed special medical care, which the grandparents could afford to give.  Michael has lived with his grandparents ever since, for a period of four years.  Mr. and Mrs. Williams, who are respectively fifty-six and fifty years of age, live in a one-bedroom house in the Brooklyn area of Baltimore City; both of them work [***3]  full-time. It has been necessary for Mrs. Williams to take Michael to the Brooklyn Community Nursery School each morning on her way to work; Mr. Williams calls for him each afternoon on his way home from work.  It is undisputed that the grandparents have provided excellent care for Michael, at their own expense.  There is general agreement that Mr. and Mrs. Williams are understanding, kindly people and have provided as good a home for the boy as their means permitted.
John Daubert, the father, remarried on May 18, 1963.  His present wife is the former Charlotte Lotz, who was a widow with four children of her own, two of whom are approximately of the age of Michael.  Daubert and his present wife live in a large nine-room cottage, with facilities for the erection of additional bedrooms. Three of the present Mrs. Daubert's children by her former marriage live in the house.  She is not employed.
Michael's mother, the former Mrs. Daubert, remarried on December 31, 1963.  Her present husband is Donald W. Gill, 

 [*305]  who had recently divorced his second wife.  He and Patricia, Michael's mother, live in a small rented home with three bedrooms, in the Pimlico area of Baltimore.  Mr.  [***4]  Gill is employed as a truck driver and Patricia works full-time at the Social Security Administration.  The girls, Debra and Darlene, live in this house and evidently have made a good adjustment and are happy.
On November 12, 1963, John Daubert filed a petition in the Circuit Court Part II of Baltimore City asking for the custody of all three children.  Patricia Gill, the mother, filed an answer asserting that it would be in the best interest of the children if custody remained with her and also filed a petition asking for an increase in the amount of support to be paid by her former husband.
Testimony was taken before Judge Prendergast which developed the marital histories and present circumstances of the parties.  Mrs. Ellis, a Director of the Brooklyn Community Nursery School in which Michael is enrolled, testified that Michael "is an unusual child many times" although at other times he acts normally.  There are times, in Mrs. Ellis' opinion, when he is really hard to cope with.  She feels that Michael needs to be corrected and "a firmness." In a previous letter, Mrs. Ellis had stated that Michael has always needed special care.  She testified that, in her opinion, "[t]he only [***5]  reason that I would feel that Michael should be  [**325]  removed from the home -- and maybe not that now -- if anything should happen to Mrs. Williams, then I think that Michael should be with his father." She was of the opinion there is no present reason why Michael should be removed from the home but also stated: "Well, I think it would be a wonderful thing for the child to be with his own father and his new mother if they would provide the proper home for him."
Mr. Karlin, Probation Officer of the Circuit Court of Baltimore City, who had made an investigation for the court in this matter, was of the opinion, as a result of his investigation, that the present arrangements with respect to the three children should not be changed.  He had interviewed the present Mrs. Daubert and thought she was a very capable woman and that there would be no question as to her ability to provide a good 

 [*306]  home for Michael.  Patricia, the present Mrs. Gill, in his opinion, was not able physically, because of her home conditions, to take care of Michael, but Mr. Karlin felt that, if the care of Michael were taken away from Mr. and Mrs. Williams by the court, Mrs. Gill should be given his [***6]  custody.
Mr. and Mrs. Williams both testified.  Michael sleeps in the only bedroom in their house; the Williams sleep on the sofa-bed in the living room.  Mrs. Williams testified that Michael has constantly been under the doctor's care ever since he has been with them.  "[H]e never did seem to grow up well *** He needs a lot of special care that just an ordinary child doesn't require." He has asthma trouble and has had an operation on his ears.  Mr. and Mrs. Williams enjoy Michael and feel they can give him more personal care, which he needs, than either his mother or his father.
Michael's mother, the present Mrs. Gill, when asked by the court what she proposed to do when Michael could no longer stay in the nursery school, said that she hoped to get him in McDonogh and believes that her parents would pay the necessary expense.  She also said that at the nursery school older children are sometimes permitted to stay on to help with the younger ones.
The present Mrs. Daubert testified that, from her observation, all three of the Daubert children feel insecure because of the breakup of their home.  She has found her present husband to be a good influence on her own children and [***7]  believes that she could grow to love his children as much as her own.
Daubert and his present wife are Catholics.  Patricia is a Protestant, although her present husband is what he describes as a "non-practicing Catholic"; the two Daubert girls attend the Catholic church. Michael, who is described as being a Catholic, which Judge Prendergast interpreted to mean, perhaps, that he had been baptized, is taken by his grandparents to a Protestant church each Sunday.
Several days after the conclusion of the testimony, Judge Prendergast filed a memorandum in which he recited the facts, gave his impression of the witnesses and analyzed and weighed the circumstances which he deemed controlling.  In his analysis of the facts, Judge Prendergast referred to the general agreement 

 [*307]  as to the fine character of Mr. and Mrs. Williams.  As to the present Mrs. Daubert, Judge Prendergast said: "Mrs. Charlotte Daubert made an excellent impression on the court and seems to be a dedicated mother to all the children for whom she is caring at present.  She alone, of all the potential custodians of the children in dispute, is not employed and is available at all times to care for them."
In his [***8]  discussion, the judge referred to the recommendation of the Probation Department that the present custodial situation remain unchanged.  The judge agreed that the two daughters are receiving proper and adequate care at present and that no change should be made as to them.  He disagreed with the recommendation that Michael should remain in the custody of his mother.  The judge pointed out that, under the present arrangement, Michael, for an  [**326]  indefinite period, would remain in the custody of his maternal grandparents. As to this, the judge said: "Inevitably he will get the impression, if he has not already done so, that he is not wanted by either his father or mother.  This is borne out by the information which the Probation Officer obtained from the boy's kindergarten principal who said that he 'appears to be very confused by the home situation'." The judge then considered the physical facilities available for Michael's care, with particular reference to his school attendance.  The judge said: "The Brooklyn Community Nursery School is for the care of children of pre-school age.  Michael is now of school age and is about to enter the first grade.  While Mrs. Williams testified [***9]  that the Nursery occasionally accepts children several years past elementary school age, this is not really what the Nursery is equipped to do.  Undoubtedly, Michael's continuance in the Nursery School would be of short duration so that as long as his grandparents are employed, as they are, they will not be able to care for him properly in the near future.  It is exceedingly doubtful that it would be wise to continue to keep a red-blooded boy in a nursery school for infants, as the respondent suggests be done here.  It is quite significant that Mrs. Elizabeth Ellis, the director of the Nursery School, testified that 'it would be nice if the boy were with his real father and new mother.' Mrs. Ellis is a lady of vast experience with young children and probably 

 [*308]  knows Michael as well as any of the persons in this case." The judge then considered Michael's religious training, noting that his father wishes to have him brought up in the Catholic faith.  Under the circumstances, the judge felt that the father's wishes with respect to the boy's religious training should be respected.
The court concluded that the care and custody of Michael should be awarded to his father.  He ordered [***10]  that the father should continue to pay twenty-five dollars weekly to the Probation Department for the care and support of the two daughters, subject to the further order of the court, and retained jurisdiction so as to make any changes in custody which may prove necessary as the result of future developments.
The father did not appeal from the portion of the decree continuing custody of his two daughters with their mother.  Mrs. Gill, the mother, during the hearing, had withdrawn in open court her petition to have the present support payments increased, so that the only question presented is the mother's appeal from so much of the decree of the lower court as awards custody of Michael to his father.
Citation of authority is no longer necessary for the fundamental rule that, in questions of custody, the paramount, overriding consideration is the welfare of the child.  Courts generally deal with the legal results of past action; here, the question is a choice between limited alternatives for the unpredictable future of a boy already handicapped by his parents' separation.  Prescience is not a judicial attribute.  Some legal principles have been evolved in custody cases, which may or [***11]  may not be applicable to the particular circumstances.  The facts, not the law, must guide judicial judgment.  "[N]o general principles can be laid down in this class of cases * * *" Barnard v. Godfrey, 157 Md. 264, 272, 145 Atl. 614 (1929). "[T]he real dilemma generally stems from the endeavor to apply the established principles of law to the facts and circumstances * * *" Hild v. Hild, 221 Md. 349, 357, 157 A. 2d 442 (1960).
In the limitless kaleidoscope of personalities, environment and economic facts, patterns may emerge to which one or another legal aphorism may seem applicable.  So, in this case, the mother claims as apposite the principles that, in general, the mother is considered the natural custodian of the young, 

 [*309]  Glick v. Glick, 232 Md. 244, 248, 192 A. 2d 791 (1963); that, ordinarily a divided control of children is to be avoided; and that the fact a mother works does not bar her as her child's custodian. Roussey v.  [**327]  Roussey, 210 Md. 261, 123 A. 2d 354 (1956). The appellee refers to cases where circumstances led to the award of custody to the father.  Sibley v. Sibley, 187 Md. 358, 362-63, 50 A. 2d 128 (1946); Sewell  [***12]   v. Sewell, 218 Md. 63, 145 A. 2d 422 (1958); Carter v. Carter, 156 Md. 500, 144 Atl. 490 (1929).
"In general", "ordinarily", "other circumstances being equal" and like phrases, are invariable limitations of any general rule in custody. In our approach to the review of decree awarding custody, we have emphasized the vital role of the chancellor who hears the case.  In Sibley v. Sibley, supra, Judge Collins, for the Court, said:

"We see none of the parties.  The chancellor had the parties and the witnesses before him.  He was able to observe their demeanor and general appearance while on the stand, to judge of their character, probable attitude toward and their probable influence over the infant. He also had the opportunity to talk to the infant. Unless there is some reason to the contrary, his findings ought not to be disturbed." 187 Md. at 362.
Judge Prendergast saw, heard and appraised all the persons interested in Michael's custody and obviously brooded over the disposition of the case.  He weighed the natural desires of the mother and her parents against what, to him, seemed best for Michael's future.  The judge emphasized Michael's confused emotional status,  [***13]  which, in Judge Prendergast's opinion, called for life with the only parent who is presently in a position to take him, rather than a continued residence with his grandparents, however selfless and kind.  In this decision, the judge was influenced by the physical and educational facilities available in the father's home and was particularly influenced by his impression of the present Mrs. Daubert as an understanding woman. On the matter of religion, it is not the father's wishes which are necessarily controlling, but the court can consider the added subconscious strain on a six year old boy of 

 [*310]  being brought up in a religion different from that of his father and sisters, whatever the religions involved may be.  Levitsky v. Levitsky, 231 Md. 388, 398-399, 190 A. 2d 621 (1963), and authorities therein cited.  The retention of jurisdiction over the matter of custody is a proper recognition of the uncertainties of life.
In view of all the circumstances, we cannot say that the chancellor's decision was wrong.
Decree affirmed; costs to be paid by appellant.  

DISSENTBY:
HAMMOND 

DISSENT:

Hammond, J., filed the following dissenting opinion.
I dissent reluctantly and only because [***14]  I have been compelled to conclude that the best interests of the boy will be furthered by keeping him with his grandparents, who have demonstrated that they can lovingly and effectively raise him in a good home in which he is content and happy. Determining the best interests of a child in a custody or adoption case results from applying judgment to the set of circumstances involved, and try as I can, I am not persuaded that the careful, sincere and conscientious efforts of Judge Prendergast below and Judge Oppenheimer for the Court on appeal to exercise such judgment wisely have been achieved.  For the facts and inescapable inferences which the record and the opinion below and on appeal paint clearly for all who are interested to see (and which it is not necessary to emphasize further), neither the father nor the mother offer the boy anything like the chance that the grandparents do to develop character, achieve a good lay and religious education and achieve success and happiness as a useful citizen.
I would reverse.  

51 of 138 DOCUMENTS 

TERRY v. STATE 

No. 347, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 314; 211 A.2d 341; 1965 Md. LEXIS 551 

June 25, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment and sentence affirmed.  

HEADNOTES:

Searches and Seizures -- Question As To, Not Raised Below Was Not Properly Before This Court -- Claim As To, Devoid Of Merit -- No Tangible Evidence Was Offered At Trial -- Record Disclosed No Allusion To Search Or Seizure.
Attorneys -- Claim Of Incompetency Of Court-Appointed Counsel Rejected -- No Complaint Was Made At Trial -- Record Showed That Defense Was Vigorously Advocated.
Criminal Law -- Confession -- Admissible Under Circumstances Of This Case If Trial Judge Believed It To Have Been Made -- Appellant, Who Testified In Own Behalf, Denied Making Statement But Offered No Testimony Contrary To Police Officer's Testimony That No Threats, Force, Promises Or Inducements Were Used, That Confession Was Freely And Voluntarily Given And That No Request For Counsel Was Made.
Criminal Law -- Robbery -- State's Evidence, Exclusive Of Confession, If Believed By Trial Judge Was Sufficient To Support Conviction -- Record Of Previous Convictions Was Only Admissible To Bear Upon Appellant's Credibility As A Witness.  

SYLLABUS:

Robert Terry was convicted of robbery by [***2]  the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
William O. Goldstein, with whom was Roland Walker on the brief, for appellant.
Fred Oken, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., and Morton Sachs, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*315]   [**341]  As far as this Court is concerned, this appeal is another frivolous one brought by a convicted and self-acknowledged 

 [*316]  recidivistic criminal, the costs of which (required by authority higher than this Court) must be borne by the State of Maryland.
Appellant was convicted of robbery in the Criminal Court of Baltimore.  He raises several questions, all of which will be answered, but not in the sequence they are set forth in his brief.
The first two which we shall consider are of such paltry significance that his court-appointed counsel, quite rightfully in our opinion,  [***3]  pointed out that they were included in the brief only upon the insistence of the appellant.  The first one reads: "Were the defendant's legal and constitutional rights violated by an unlawful search and seizure?" The question was not raised below, and, therefore, is not properly before us.  Maryland Rule 885.  In addition, an examination of the trial record discloses no allusion to a search of appellant or any seizure of his property.  No tangible evidence was offered at the trial.  It is obvious that the claim is utterly devoid of merit, and it illustrates how far transgressors of our criminal law have been encouraged by decisions  [**342]  elsewhere to reach, at State expense, for any possible straw that might relieve them of the requirement of paying the penalty for their offenses against honest citizens, in this instance the owner of a food market.
The second contention insisted upon by appellant was that his court-appointed counsel was inept (nearly all lawyers are now considered incompetent by those accused of crime, except those who keep the defendants' "feet upon the bricks").  Appellant did not complain to the trial court of the conduct of his counsel; hence, under our [***4]  previous decisions, he has no just complaint here.  Brown v. State, 237 Md. 492; Stevens v. State, 230 Md. 47. In addition, an examination of the record shows affirmatively that the defense was vigorously advocated; appellant's counsel did all that any lawyer reasonably could have been expected to do in his behalf.  Appellant was convicted, as we shall point out below, by the overpowering strength of the State's evidence.
Appellant also contends that an oral confession made by him to the police was improperly admitted into evidence.  This claim, like the others, is lacking in substance.  He was arrested on 

 [*317]  August 2, 1964, under the authority of an arrest warrant issued on July 13th, the validity of which is not challenged.  He was questioned on the same day by Sgt.  Tabeling, in the presence of one other officer, from 2:05 p.m. until 4:49 p.m., when he made the statement.  Sgt. Tabeling testified that no threats, force, promises, or inducements of any kind were used to obtain the confession, and it was given freely and voluntarily by appellant, and, at no time did he request counsel.  No testimony was offered to the contrary and no impropriety was leveled against [***5]  the officers present during appellant's interrogation, even though he testified in his own behalf; he merely denied that he had made the statement.  No citation of authority is necessary to show that a confession made under the above circumstances is admissible (if believed by the trial judge to have been made) as evidence in this State.  (What we say below discloses that the trial court did not have to rely upon the confession to support the conviction.)
This brings us to appellant's final claim of error; namely, the insufficiency of the evidence to support his conviction, which has practically become a routine claim of indigent defendants in present-day appeals in this jurisdiction.  The co-owner of a food market testified that three men, one of whom was the appellant, entered his store, and, holding their hands inside their shirts, they announced in loud voices: "This is a hold-up." He stated that appellant, who had been a former customer of the store, came behind the counter and helped empty the cash register, besides helping himself to some bottles of whiskey. He also took the owner's wallet.  All told, the robbers obtained about $ 625.  This testimony was corroborated by the [***6]  other co-owner of the store and a clerk, and, in addition, was corroborated, in substantial part, by another clerk.
Appellant took the stand and stated that he had been drinking heavily and was feeling his "wheaties." He went into the store to buy some fruit juice and Alka Seltzer because the drinking had upset his stomach.  While he was in the store, two men came in and committed the robbery, and, as the owner was excited on account of it, appellant took a couple of bottles of whiskey from the shelf, for which he did not pay.  He also did not pay for the fruit juice and didn't remember what happened 

 [*318]  to it.  About four minutes after the departure of the two robbers, he left the store.  He had a formidable record of previous convictions, which, insofar as the question of guilt was concerned, was only admissible to bear upon his credibility as a witness.  From the above, it is readily seen that the State's evidence, exclusive of the confession, was sufficient, if  [**343]  believed by the trial judge, to sustain the conviction.  In the confession, he admitted participation in the robbery, and said his share of the loot was about $ 197. n1

n1 It is doubtful that any fairminded businessman and taxpayer begrudges an indigent accused of crime, who has some substance to his defense, a trial and appeal at the State's expense.  But it is also doubtful that the same fairminded businessman and taxpayer would approve of the State's being required to pay a lawyer for a criminal -- no matter how many times he takes others' property -- and bear the expense of an appeal after his conviction, which has no semblance of merit in it.

 [***7]  
Judgment and sentence affirmed.  

52 of 138 DOCUMENTS 

BARBEE v. STATE 

No. 369, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 329; 211 A.2d 343; 1965 Md. LEXIS 553 

June 25, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Identification Of Accused As Perpetrator Of Crime By Single Eye-Witness Is Sufficient To Support Conviction -- Identification Of Defendant By Three Eye-Witnesses Was Abundant In This Assault With Intent To Murder And Unauthorized Use Of Automobile Case.  

SYLLABUS:

After a retrial William Barbee was convicted by a jury of assault with intent to murder and the unauthorized use of an automobile, and from the judgment entered thereon, he appeals.  

COUNSEL:
George Z. Ashman for the appellant.
Loring E. Hawes, 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 Hammond, Marbury, Sybert and Oppenheimer, JJ.  Marbury, J., delivered the opinion of the Court.  

OPINIONBY:
MARBURY 

OPINION:

 [*330]   [**344]  On September 21, 1964, the appellant, William Barbee, was found guilty by a jury in the Criminal Court of Baltimore of assault with intent to murder and unauthorized use of [***2]  an automobile.  For these crimes, he was sentenced to serve fifteen years and four years consecutively, from May 16, 1957, in the Maryland Penitentiary.  Appellant had been convicted and received identical sentences for the above crimes on May 16, 1957.  On May 15, 1959, we denied his application for leave to appeal under the Post Conviction Procedure Act.  Barbee v. Warden, 220 Md. 647, 151 A. 2d 167. Subsequently, Barbee applied to the United States District Court for the District of Maryland for a writ of habeas corpus, which was denied.  He then appealed to the United States Circuit Court of Appeals, 4th Circuit, which reversed the United States District Court and remanded the case for the issuance of a writ of habeas corpus unless the State elected within a reasonable time to retry the appellant.  Barbee v. Warden, Maryland Penitentiary, 331 F. 2d 842. The present appeal is from his convictions and sentences on his retrial by the State.
On March 6, 1956, at about 5:30 p.m., Officer Fischer was directing traffic at the intersection of North and Greenmount Avenues in Baltimore City.  Traffic was unusually heavy because of a prevailing transit strike.  Allen Gross was riding [***3]  in an automobile operated by Harold Tabb, a co-worker, when he spotted his 1953 Plymouth automobile, which had been stolen the previous day.  Gross ran to Officer Fischer for assistance while Tabb went to the stolen car to prevent the operator from getting away.  Officer Fischer apprehended the appellant who was struggling with Tabb and after "patting down" the suspect, he took him to a police call box. While at the call box, appellant shot Officer Fischer, broke away and escaped.  The officer was taken to a hospital where he later described the suspect who had shot him.  Gross and Tabb likewise gave the police a 

 [*331]  description.  On May 1, 1957, approximately a year later, appellant was arrested on another charge.  He was viewed in a line-up by Officer Fischer, Tabb, and Gross, all of whom identified him as the man who was in the car on March 6, 1956, and who had shot the officer.
On appeal, appellant contends that the lower court erred in refusing to grant his motion for a judgment of acquittal because he was not sufficiently identified by eye-witnesses. We do not agree.  This Court has many times held that the identification of the accused as the perpetrator of a crime [***4]  by a single eye-witness furnishes sufficient evidence to support the conviction of the accused.  Watkins v. State, 237 Md. 357, 206 A. 2d 568; Hursey, Jr. v. State, 233 Md. 243, 196 A. 2d 472; Bailey v. State, 226 Md. 353, 173 A. 2d 732. Here, there was identification of appellant by three eye-witnesses. Gross identified Barbee in court and in a police line-up as the man whom he saw get out of his stolen car and subsequently shoot Officer Fischer.  When the shooting occurred, he was only five or six feet from Barbee.  Tabb recognized appellant in the courtroom and picked him out of a line-up. Officer Fischer stated that he was holding Barbee when he shot him.  He positively identified him at the trial and at the city jail.  We hold that the appellant was abundantly identified to support his conviction by the triers of the fact.
Judgment affirmed.  

53 of 138 DOCUMENTS 

PLATER v. STATE 

No. 327, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 691; 211 A.2d 710; 1965 Md. LEXIS 596 

June 25, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment and sentence affirmed.  

HEADNOTES:

Rogues and Vagabonds -- Evidence Ample To Support Conviction -- Question Was Whether Appellant Was Apprehended Under Circumstances From Which "An Intent [By Appellant] May Be Presumed [That He Intended] Feloniously To Break And Enter Into Any Dwelling House."
Criminal Law -- Court-Appointed Counsel Made An Earnest And Sincere Effort To Obtain Reversal But Appeal Was Hopeless.  

SYLLABUS:

Lorenzo E. Plater was convicted of being a rogue and vagabond in Baltimore City, by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted on brief by Bernard A. Greenberg for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, Jon F. Oster, Assistant Attorney General, Charles E. Moylan, Jr. and John D. Hackett, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

JUDGES:
Prescott, C. J., and Horney, Marbury, Oppenheimer and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*691]   [**710]  Appellant was indicted and convicted under Code (1957), Article [***2]  27, Section 490, in the Criminal Court of Baltimore by a judge, sitting without a jury.

 [*692]  The sole question for determination is whether appellant was apprehended under circumstances from which "an intent [by appellant] may be presumed [that he intended] feloniously to break and enter into any dwelling house."
We have carefully examined the evidence adduced by the State below -- the appellant offered none -- and hold that it was ample to support the finding of the trial court.  Bergen v. State, 234 Md. 394; Wright v. State, 222 Md. 242; Martin v. State, 203 Md. 66.
Court-appointed counsel for the appellant made an earnest and sincere effort to obtain a reversal of his client's conviction, but, because of the State's evidence, appellant's appeal was hopeless.
Judgment and sentence affirmed.  

54 of 138 DOCUMENTS 

WILKINS v. STATE 

No. 350, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 692; 211 A.2d 308; 1965 Md. LEXIS 597 

June 25, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Identification Of Accused By Victim -- Even If Victim Was Hesitant At First As To Identity Of Appellant, His Testimony On The Whole Was Not So Uncertain As To Require Reversal Of Conviction -- Credibility Of Witness And Weight Of Evidence For Trial Judge To Determine.  

SYLLABUS:

Hugh Maurice Wilkins was convicted of robbery with a deadly weapon by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
David L. Bowers for appellant.
Franklin Goldstein, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Lucy Ann Garvey, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
PER CURIAM 

OPINION:

 [*693]   [**308]  This appeal presents a question as to whether the identification of the appellant by a service station attendant as one of the colored boys who, holding handkerchiefs to their faces, had robbed him at gunpoint, was so uncertain that it [***2]  could not be relied on to support the conviction.
The attendant, who had known both boys for several years, apparently had not recognized them when he notified the police, and the warrants for their arrest were not sworn out until several days later.  At the preliminary hearing, the attendant, although unsure that the other boy was involved, was sure that the appellant had participated in the robbery, and, at the trial, positively identified him as one of the robbers.  On the other hand, the appellant, although admitting that he had run through the service station premises to avoid a group of white boys who were chasing him at or about the time of the holdup and that he had stayed away from home for three days after being told that the police were looking for him, categorically denied that he was implicated in the crime, and told the police that he was "going to stick to" his story.
The credibility of the witnesses and the weight of the evidence was for the trier of fact to determine, and we cannot  [**309]  say that the trial judge was clearly wrong in choosing to believe the victim.  Wilson v. State, 237 Md. 634. Even if the victim was somewhat hesitant at first as to the [***3]  identity of the appellant, his testimony on the whole was not so uncertain as to require a reversal.  Cf. Tucker v. State, 237 Md. 422, with Kucharczyk v. State, 235 Md. 334. There is no merit to the contention of the appellant.
Judgment affirmed.  

55 of 138 DOCUMENTS 

STREAT v. STATE 

No. 364, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 694; 211 A.2d 709; 1965 Md. LEXIS 598 

June 25, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Robbery With Deadly Weapon -- Sufficient Evidence To Support Conviction Despite Lack Of Positive Identification By Victims -- Identification Impossible Because Robbers Wore Stockings Over Faces -- Appellant Confessed To Participation In Crimes -- Voluntariness Of Signed Statements Was Not Impeached.
Criminal Law -- Evidence -- No Error In Use Against Appellant At Trial Of Shirt Belonging To Him And Worn By Accomplice -- Mother Gave Shirt To Police And Appellant Identified It.
Sentence -- Within Statutory Limits Did Not Amount To Cruel And Unusual Punishment.  

SYLLABUS:

Purnell Fox Streat was convicted under two indictments of robbery with a deadly weapon by the trial court, sitting without a jury, and from the judgments entered thereon, he appeals.  

COUNSEL:
Submitted on brief by Jack E. Richards for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, Jon F. Oster, Assistant Attorney General, Charles E. Moylan, Jr. and James A. McAllister, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

JUDGES:
 [***2]  
Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*695]   [**709]  The appellant was indicted and convicted on two counts of robbery with a deadly weapon. For these offenses he received terms of five and ten years, the sentences to run consecutively.  The appellant's primary argument is that there was not sufficient evidence to support his convictions because there was no positive identification of him as the robber by the victims, an argument which his counsel presents by request of his client but candidly does not endorse.
The appellant in signed statements, the voluntariness of which was not impeached below and is not questioned here, acknowledged his participation in each of the two crimes.
The corpus delicti of each robbery was established by the victims who explained that positive identification was not possible because the robbers wore stockings over their faces.  The appellant confessed to being a participant in the robberies the witnesses testified to.  This is enough to support a finding of guilt without eyewitness identification of the accused as the robber. Foster v. State, 230 Md. 256, 259; Bagley v. State, 232 Md. 86; Stevens  [***3]   v. State, 232 Md. 33.
Appellant's subsidiary contention, again presented by his counsel by request,  [**710]  is that he was deprived of a fair trial because a red sport shirt with white stripes was received in evidence against him.  Streat had told the police of the shirt which was given to the police by his mother when they went to his home.  When the shirt was shown to him, he identified it as his and as having been worn by his accomplice in one of the robberies. We find no error in its use against him at the trial.
Appellant argues further that the sentences imposed on him were grossly disproportionate to the offenses committed and amounted to cruel and unusual punishment.  The sentences were in total well within statutory limits, and their length offer no basis to appellant for relief.  Apple v. State, 190 Md. 661; Hobbs v. Warden, 223 Md. 651.
Judgments affirmed.  

56 of 138 DOCUMENTS 

LEAMAN v. LEAGUE LUMBER COMPANY, INC.  

No. 290, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 258; 211 A.2d 296; 1965 Md. LEXIS 545 

June 22, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Carter, J.  

DISPOSITION:
Judgment affirmed; appellant to pay the costs.  

HEADNOTES:

Negotiable Instruments -- Lost Instrument -- Sufficient Evidence To Support Finding That Appellant Signed Under Seal On Face Of Note As An Individual Maker -- Twelve Year Statute Of Limitations Applicable.  In the instant action based on the non-payment of a lost demand confessed judgment note (a reconstructed copy of which was filed with the declaration), this Court held that there was substantial evidence upon which the trial judge could have based his findings that appellant had signed the note on its face as an individual maker, in addition to executing it on behalf of the corporate defendant as its president, and that his individual signature was under seal. Appellant had testified that he had signed only once on the face of the note -- as president of the corporate defendant.  However, he stated that he had signed on the back of the note as an accomodation indorser, and that this signature was not under seal. Because suit was filed approximately three years and three months after the date of the note, appellant filed a special plea of limitations and argued [***2]  that his indorsement was governed by the three-year period of limitations applicable to actions in assumpsit. But, since the evidence simply presented questions of fact to the trial judge and he had had the opportunity to judge the credibility of the witnesses, and there was substantial evidence that appellant had signed under seal on the face of the note as an individual maker, so that the trial judge's findings were not clearly erroneous, this Court did not reach the limitations question raised as to the alleged indorsement, the twelve year period of limitations being applicable in this situation.
Negotiable Instruments -- Lost Note -- Parol Evidence Admissible To Prove Contents Of -- Evidence Of Prior Dealings Between Parties Was Material And Admissible As Bearing Particularly Upon The Manner In Which Appellant Signed.  

SYLLABUS:

Action by League Lumber Company, Inc. against William W. Leaman and Blythenia Developmnt Co., Inc. to recover for the non-payment of a lost demand confessed judgment note allegedly executed under seal by both defendants, Blythenia and William W. Leaman, president of defendant corporation.  From a judgment entered against both defendants, defendant Leaman [***3]  appeals.  

COUNSEL:
John C. Evelius, with whom were Gallagher & Evelius on the brief, for appellant.
Julius G. Maurer, with whom was Samuel S. Sapero on the brief, for appellee.  

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

OPINIONBY:
SYBERT 

OPINION:

 [*259]   [**296]  The appellant, William W. Leaman, seeks reversal of a judgment entered against him after the trial court, sitting without a jury, found as a fact that he had, as a maker, signed a note under seal, together with the Blythenia Development Company, Inc., payable on demand to the appellee, League Lumber Company, Inc. Blythenia, against which judgment also was entered, did not appeal.
It was undisputed that the note in question, which was for $ 4063.07, was stolen from the office of the appellee some twenty-three months after its execution.  Suit thereon was not filed until approximately three years and three months after the date of the note.  A reconstructed copy of the note was filed with the declaration. The plaintiff-appellee, League Lumber Company, produced evidence to show that the defendant-appellant, Leaman, had executed the note [***4]  on behalf of Blythenia, as its president, and had again signed the note on its face, under seal, as an individual maker.  (The period of limitations for a suit 

 [*260]  on a negotiable instrument under seal is twelve years.  Code (1957), Art. 57, sec. 3.) On the other hand, Leaman testified that he had signed only once on the face of the note -- as president of Blythenia; however, he stated that he had signed on the back of the note as an accommodation indorser, and that this signature was not under seal. (He filed a special plea of limitations and argues that his indorsement is governed by the three-year period of limitations applicable to actions in assumpsit under sec. 1 of Art. 57, supra.) It was conceded in the case that nothing has been paid on the note.  Demand for payment was proven.
The trial judge found that the appellant had signed the note on its face as an individual maker, in addition to executing it on behalf of the corporate defendant as its president, and that his individual signature was under seal. Our function on this appeal is to determine whether there was substantial evidence upon which the trial judge  [**297]  could base his findings.  We can set [***5]  the judgment aside only if his conclusions from the evidence were clearly erroneous. Maryland Rule 886 a.
George M. Baker, the assistant secretary and bookkeeper of League Lumber Company, testified for the plaintiff that he had filled in the original printed confessed judgment note, that he was present when it was signed, and that he saw the note about fifty times after its execution since it was kept in a metal box in his office.  (The appellant admitted that Baker was present at the time of execution.) Baker further testified that the note was signed on its face twice by Leaman, once as president of Blythenia and once individually. He reconstructed the note at deposition and at trial.  The form used each time contained the word "(SEAL)" opposite the names of the makers.  Baker stated that no copy of the note was made by him.
Dorothy R. Soltys, secretary to the appellee corporation and its president, Albert H. League, testified for the plaintiff that though she was not present at its execution, she saw the note many times in the metal box. She stated that she particularly remembered Mr. Leaman had signed it twice on its face and that since she was not familiar with notes she [***6]  wondered why a person would sign it twice. She stated that no corporate seal was affixed but that the word "seal" appeared after Mr. Leaman's 

 [*261]  signature. When she reconstructed the note in court the form contained the word "(SEAL)".
Mr. League also testified that Leaman had signed the note on its face as president of Blythenia and individually. He denied that Leaman had signed on the back at all.  He said the note was executed because there was an outstanding debt due League Lumber for materials furnished and that because of Blythenia's financial difficulties he wanted the note as definite evidence of the obligation.  He stated that when Blythenia began to deal with League Lumber, Leaman agreed that he should be billed personally along with the corporation for all goods delivered.  He added that no credit would ever have been extended except for Leaman's personal undertaking, as he trusted Leaman but knew nothing of his company.  Twenty-one invoices were introduced showing that Blythenia and Leaman were both billed for materials furnished by League Lumber.  League further testified that when Leaman signed the note this was again because he relied on Leaman and not Blythenia [***7]  for payment and that he had promised not to record the note for a time so as not to jeopardize Leaman's chances of getting construction contracts.  He admitted that after the note was stolen he asked Leaman to indorse a note to replace the original but said he did so only because Leaman refused to sign a new note as maker.
On the other hand, Leaman, as previously noted, testified that in addition to executing the note on its face as president of Blythenia, he also signed it on its back individually as an indorser and that such indorsement was not under seal; he denied that he had signed individually on the face.  He said the note was executed at the request of Mr. League as evidence of a prior existing debt which League desired to take out of his company's accounts receivable.  He admitted that League Lumber had billed him, as well as Blythenia, for material delivered.  He further testified that Blythenia was in financial difficulties, mechanics liens and judgments had been filed against it, negotiations were taking place in regard to a new development in Harford County, and that a recording of the confessed judgment note might injure Blythenia in regard to these negotiations. Therefore,  [***8]  according to Leaman, in exchange for 

 [*262]  League's promise not to record the note until the Harford County negotiations were completed, he signed the note individually on its back as an indorser. He introduced in evidence what he said was a copy of the note given to him when the original was executed.  It shows the name of Blythenia followed by the appellant's name as president, directly opposite the printed word "(SEAL)".  There  [**298]  is no indorsement on the back.  The appellant explained that when the copy was given to him it did not contain his signature as president on the face but that he typed in his name later, though he did not add the indorsement. He further testified that when he was asked by League to sign a duplicate note after the original was stolen he refused since the Harford County deal had fallen through and therefore there was no reason for him to indorse the note individually.
In rebuttal, both League and Baker denied that any copy of the note had been given to Leaman.
It is manifest that the evidence simply presented questions of fact to the trial judge.  There was substantial evidence from several witnesses that Leaman had signed the note on [***9]  its face as an individual maker, and that this signature was under seal. The trial judge chose to believe those witnesses.  Taking into consideration the fact that he saw and heard all the witnesses, and had the opportunity to judge of their credibility, we cannot say that his conclusions were clearly erroneous. Hence, since the twelve year period of limitations is applicable in this situation, we do not reach the limitations question raised by the appellant with respect to his alleged indorsement.
The appellant maintains that the trial court erred in allowing the admission of the invoices and testimony, over objection, that related to the business transactions of the parties prior to the execution of the note.  The point is not well taken.  It is well settled that parol evidence is admissible to prove the execution and contents of a lost instrument.  Barranco v. Kostens, 189 Md. 94, 54 A. 2d 326 (1947); Yingling v. Kohlhass, 18 Md. 148 (1862). Since in the case before us the matter of the contents of the note -- particularly the manner in which the appellant signed -- was at issue, evidence of prior dealings between 

 [*263]  the parties was clearly material and admissible [***10]  as bearing thereon.  Cf. Leahy, Executrix v. McManus, 237 Md. 450, 206 A. 2d 688 (1965).
Judgment affirmed; appellant to pay the costs.  

57 of 138 DOCUMENTS 

SKINKER v. STATE 

No. 251, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 234; 210 A.2d 716; 1965 Md. LEXIS 543 

June 14, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Montgomery County; Moorman, J.  

DISPOSITION:
Judgment reversed and case remanded for trial.  

HEADNOTES:

Probation -- Before Verdict -- Imposition Of, And Subsequent Revocation Of, At The Circuit Court Level -- Court Of Appeals Has Jurisdiction To Review.
Probation -- Before Verdict -- History And Purpose Of.
Probation -- Before Verdict -- Grant Of, Was Held Invalid Here Due To Lack Of Appellant's Written Consent -- Judgment Reversed Where Probation Was Revoked And Appellant Sentenced To Prison Without Benefit Of Trial.  In the instant case, where the appellant was charged with forging and uttering, it was held that the oral order of the lower court purporting to grant probation without verdict was invalid from its passage because of the absence of any written consent of the appellant filed in the proceedings, and that the requirement of the statute (Code (1964 Supp.), Art. 27, sec. 641.) that such consent be given, is mandatory.  It was further held that the "Motion for Probation without Verdict" filed and signed by appellant's counsel was insufficient to constitute the written consent of the person accused required by sec. 641.  The Court [***2]  went on to point out that in this case, while the appellant had originally elected to plead guilty, the plea was withdrawn on the same day, with the consent of the court.  No later plea was ever made; hence, no plea was properly before the court, unless it was an "automatic" plea of not guilty under Maryland Rules 721 or 722.  There had never been a trial on the merits, or a determination that the appellant was guilty beyond a reasonable doubt.  The appellant now finds himself in prison on the basis of 1) a grant of probation without verdict which did not comply with the requirements of the statute, 2) a revocation thereof one month later, coupled with an unwarranted entry by the court of a "verdict of guilty", and 3) a sentence to a penal institution for a period not in excess of four years -- all of which took place without the prior written consent of the accused.  The Court stated that our system of jurisprudence requires a "lawful trial to convict, and a lawful conviction to sentence".  Therefore, the Court reversed the judgment below and remanded the case for a trial.  

SYLLABUS:

Michael E. Skinker was convicted of forging and uttering and from the judgment entered thereon, he appeals.  

COUNSEL:
 [***3]  
William M. Cave for appellant.
Donald H. Noren, Special Attorney, with whom were Thomas B. Finan, Attorney General, Leonard T. Kardy and James J. Cromwell, State's Attorney and Deputy State's Attorney, respectively, for Montgomery County, on the brief, for appellee. 

JUDGES:
Barnes, J., delivered the opinion of the Court.  

OPINIONBY:
BARNES 

OPINION:

 [*235]   [**717]  This is an appeal from an order of the Circuit Court for Montgomery County revoking the appellant's probation before verdict, entering a verdict of guilty, and sentencing the appellant to confinement in the Maryland Institution for Men for an indefinite term not to exceed four years (dating from May 25, 1964).
At the outset, we consider that the jurisdiction of this Court to entertain an appeal from an order revoking probation has been settled by Coleman v. State, 231 Md. 220, 222, 189 A. 2d 616 (1963). In that case the State moved to dismiss upon the ground that in granting and striking out probation, the lower court was exercising a special, limited power, not known to the common law and created wholly by statute, and that, therefore, no appeal would lie to this Court in the absence of an express [***4]  law permitting one.  We denied the State's motion, and re-affirmed our ruling in Swan v. State, 200 Md. 420, 425, 

 [*236]  90 A. 2d 690 (1952) that an appeal would lie "if only for the purpose of determining whether that discretion [given to the trial court] has been abused in any way, or whether an erroneous construction has been placed by the trial judge on the conditions of the parole." The case at bar appears to be the first case dealing generally with the imposition of probation before verdict at the Circuit Court level and the problems attendant upon its revocation (cf. State v. Jacob, 234 Md. 452, 199 A. 2d 803 (1964), a case dealing with the authority of a Circuit Court, on writ of certiorari, to review and vacate the action of a trial magistrate who had placed a defendant on probation before verdict).  We are of the opinion that the reasons for permitting appellate review in Swan and Coleman apply with equal vigor to the case before us and that the appeal is properly here.
The facts of the instant case may be summarized as follows: Michael Skinker was indicted on April 21, 1964 by the grand jury for Montgomery County for forging (count one) and uttering [***5]  (count two) a charge account receipt of Humble Oil & Refining Company, in the name of one Henry Brylawski, with intent to defraud.  Skinker was "arraigned" on May 4, 1964 at which time he filed an affidavit alleging his lack of funds with which to employ counsel; counsel was present at all subsequent stages of the proceedings.  On May 25, 1964 the docket entries show that the case came on for hearing, that the defendant was re-arraigned (or formally arraigned), and that a plea of guilty was entered.  The docket next records an oral motion by the defendant to withdraw his plea of guilty, and that the court orally granted such motion.  Then, still on the same day, there was filed a written motion by counsel to grant "probation without finding a verdict as provided for by Section 641 of Article 27 of the Annotated Code of Maryland (1957 Edition)." The docket entries show that the court orally granted this motion.
There is, in the record before us, no transcript of the testimony taken before Judge Moorman on May 25th, if any was taken.  In any event no such testimony could accurately be termed "evidence" against appellant on the forgery and uttering charges, since: 1) after a plea of [***6]  guilty, "the necessity for a trial is obviated," (Ogle v. Warden, 236 Md. 425, 426, 204 

 [*237]  A. 2d 179 (1964), and all that remains is the matter of sentencing; 2) in exercising intelligently the discretion reposed in him with respect to punishment, the trial judge may consider and rely upon many kinds of information which "would be unavailable if *** restricted to that given in open court by witnesses subject to cross-examination," -- Driver v. State, 201 Md. 25, 33, 92 A. 2d 570  [**718]  (1952), (see Costello v. State, 237 Md. 464, 206 A. 2d 812 (1965)) -- as well as data and oral hearsay which may draw upon every aspect of the defendant's life.
The record before us, however, does contain a transcript of the oral conditions imposed by Judge Moorman in granting probation before verdict to appellant at the May 25th hearing, which were two in number.  First, the court directed appellant to "make restitution of $ 450.00 to the people from whom you stole the money and who had to pay it"; second, the court cautioned appellant "that while you are in the State of Maryland *** you maintain a code of conduct that is acceptable to all people." Approximately a month [***7]  later, Judge Moorman ordered the Clerk of the Circuit Court to issue a bench warrant "for the arrest of Michael Edward Skinker for violation of probation."
On June 30, 1964 a hearing was held before Judge Moorman to determine whether Skinker had violated the terms of his probation. A Marine Corps sergeant assigned to the Armed Forces Apprehension Center testified that Skinker had been a member of the Marine Corps prior to and through May 25, 1964; that he was reported as absent without official leave shortly after the Circuit Court proceedings of that date; and that he had subsequently been declared a deserter from the Corps.  The appellant admitted his desertion but stated that in his opinion such conduct did not violate either of the conditions of probation imposed by the court.  He further admitted that he had stolen a tire and had concealed a .25-caliber automatic pistol on his person at the time of the theft, but indicated that such activity also did not violate those conditions because it took place entirely within the District of Columbia.  (The State contends that comprehensive "good conduct" is an implied condition of every probation).  Omitting the colloquy between the [***8]  court and the defendant, it is sufficient for the purposes 

 [*238]  of this case to say that Judge Moorman ordered the clerk to "strike the entry of probation without verdict," and to "enter a plea of guilty," which was later amended to "verdict of guilty." After further colloquy he sentenced appellant to confinement in the Maryland Institution for Men for an indeterminate sentence not to exceed four years (forging and uttering a "writing obligatory" is by statute a felony punishable by a maximum of 10 years in the penitentiary, Code, Art. 27, Sec. 44).  The defendant filed timely notice of appeal.
In Maryland, probation without verdict, as distinguished from probation upon the conditional suspension either of the execution or of the imposition of a criminal sentence (see Brown v. State, 237 Md. 492, 207 A. 2d 103 (1965), is of relatively recent origin.  Chapter 316 of the Laws of 1957 was the first law giving authority to all of the circuit courts of the state and to the Criminal Court of Baltimore to place a person accused of crime on probation without finding a verdict; n1 Chapter 616, §  22 of  [**719]  the Laws of 1961 granted such authority to the Circuit 

 [*239]   [***9]  Courts and the Criminal Court of Baltimore upon appeals from the Municipal Court of Baltimore City.  The present provisions of the general law are codified as Code (1964 Supp.), Article 27, §  641.  That section provides:
"The circuit courts of the several counties in this State and the Criminal Court of Baltimore City, before conviction of any person accused of crime with the written consent of the person so accused, including persons appealing from convictions before trial magistrates or before the Municipal Court of Baltimore City, whether a minor or an adult, and after conviction or after a plea of guilty or nolo contendere, without such consent, are empowered, during the term of court in which such consent, conviction or plea is had, to:
(1) Suspend the imposition of sentence; or
(2) Place such person on probation without finding a verdict; and
(3) Make such conditions of suspension of sentence and probation as the court may deem proper."

Unlike the suspension of the imposition of or the execution of a criminal sentence, which can be exercised "only when there has been a conviction and sentence thereon, probation without verdict, if granted, avoids any finding of [***10]  guilt" (State v. Jacob, supra, 234 Md. at 455). Avoidance of the stigma of a criminal record, indeed, is the very raison d'etre of the procedure.  There is, however, a singular lack of authority in the United States in regard to the scope, procedure, and nature of probation without verdict. n2

n1 Chapter 436 of the Laws of 1955 codified as Annotated Code (1951), Art. 27, Sec. 726A, was the forerunner of the present provision.  That earlier law contained grants of powers almost identical substantively with those of the current law, but limited their applicability to the circuit courts of the counties comprising the Second Judicial Circuit of Maryland.
The Act of 1955, Chapter 436, in turn, was taken almost verbatim from the provisions of the Charter and Public Local Laws of Baltimore City (1949 edition), section 277 derived from Laws of 1931, Chapter 132, §  351B).  The approach, structure, and language of Section 277 are essentially the same as the comparable provisions of the 1955 law -- the one cardinal difference being the matter with which this opinion is concerned, that of probation without verdict.  §  277(2) empowers the criminal court, before conviction, with the defendant's written consent, to "place such person on probation before or after commitment and incarceration." §  641 of Article 27 of the current Code empowers the criminal courts, before conviction, with the written consent of the person accused, to place such person on probation without finding a verdict." (Emphasis supplied).  One effect to be deduced from this key difference is that the authority of the Criminal Court of Baltimore to place an accused on probation without finding a verdict, derives from the quoted provisions of the Code, and not from the provisions of the Charter and Public Local Laws of Baltimore City. [***11]  
n2 The Federal Probation Law presupposes a conviction; Title 18 U.S.C. §  3651 begins: "Upon entering a judgment of conviction *** any court having jurisdiction *** when satisfied that the ends of justice and the best interest of the public as well the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best." The introductory word "upon" means "after." Kirk v. U. S., 185 F. 2d 185 (9 Cir., 1950).
The American Law Institute's Model Penal Code (Proposed Official Draft, 1962) contains no indication of such a procedure; see §  301.1.  Readily distinguishable are §  6.05(3) and §  306.6, which become operative only after a lawful conviction and sentence.
England experimented with a species of probation without conviction during the period 1907-1948.  The statute of 7 Edward VII, Chapter 17, known as the Probation of Offenders Act of 1907, authorized magistrates' courts (but not courts of quarter sessions or courts of assize) to grant probation "without proceeding to conviction." Earlier statutes had already authorized the practice of probation per se. (e.g. the Summary Jurisdiction Act of 1879, 42 and 43 Vict., c. 49, s. 10).  See Orfield, Criminal Procedure from Arrest to Appeal (1947), page 531-532; Jackson, Machinery of Justice in England (2d ed., 1940), pp. 161-168, (3d ed., 1960), pp. 181-189.  The English probation order derived from the earlier system of recognizances or "common law binding over." Instead of passing sentence (e.g. fine or imprisonment), the court could require a convicted person to execute a document known as a recognizance, in effect a penalty bond, with or without sureties, wherein he agreed to forfeit x pounds to his Sovereign Lady the Queen unless he should thereafter keep the public peace and be of good behavior.  10 Halsbury's Laws of England (3d. ed.), §  904-910.  Entry of a conviction (after 1907) was apparently deemed unnecessary, inasmuch as upon failure to satisfy the conditions of a recognizance, "the sheriff enforces the forfeiture by levying the amount of the recognizance on the goods and chattels of the recognisor, and if sufficient goods and chattels cannot be found, by seizing his body" (loc. cit., §  907).
The difficulties inherent in probation without conviction vis-a-vis-judgment, appealability, and so forth, were brought to light in the leading case of Oaten v. Auty, [1919] 2 K.B. 278. The lower court had determined that the criminal charge (evasion of military service) was proved, but believing any punishment to be "inexpedient," it "dismissed" the indictment and placed the defendant on probation. (The register of court contained the entries: "Plea -- not guilty.  Offense proved, dismissed under the Probation of Offenders Act, inexpedient to punish").  The five judges hearing the case on appeal to the King's Bench Division delivered seriatim opinions, in which they roundly condemned the device of probation without conviction:
Justice Darling: "In this case the justices dismissed the information, and it is said there was no conviction, order, or determination from which an appeal lies at the instance of the present appellant.  The words of s.1 of the Probation of Offenders Act, 1907, are unscientific, thoroughly illogical, and are merely a concession to the modern passion for calling things what they are not; for finding people guilty and at the same time trying to declare them not guilty.  Here the justices have found the offense proved -- they use the word 'offence' -- and they make an entry to that effect in the register of the Court, but because they acted under the Probation of Offenders Act, 1907, and considered it inexpedient to inflict any punishment, it is said that no appeal lies. If this appellant cannot appeal a grave injustice might be done." *** "The Probation of Offenders Act, 1907, has allowed the justices to find all the facts that make a person guilty but to enter in their record that he is not guilty.  The logical and proper procedure would have been to provide that the justices should record that in view of the trivial nature of the particular offence or for one or other of the reasons mentioned in the Act no punishment would be inflicted and the accused might appeal, punishment or no punishment, in this case against the stigma placed upon him as a person who has broken a law which goes to the safety of the country.  For the reasons I have given I think that, notwithstanding all the ambiguities and difficulties with which the point has been involved by the Legislature, an appeal lies in this case."
Justice Bray: *** "It is said that it may be a great hardship upon an accused if he is dealt with under that section and so has a finding that the charge preferred against him has been proved and he be without a right of appeal. That may be so.  But the fact does not justify us in distorting the language of the statute.  In this case I cannot construe what was done by the justices as a 'conviction.' I therefore disregard that word, and I come to the word 'order.' The only order made was one dismissing the information."
Justice Lawrence: "What we are asked is whether the justices came to a correct determination in point of law.  What is the determination to which they have come?  They neither convicted nor acquitted the appellant, and he is entitled, like every other subject, to have the offence dealt with to the end either by acquittal or conviction.  *** If they thought he was subject to the Military Service Acts they should have convicted him, and they were wrong in trying to escape from this by applying the Probation of Offenders Act, 1907.  I therefore think the appeal can be heard."
Justice Avory: "It is in my opinion the duty of the Court, if possible, to make sense of the words of a statute rather than to make nonsense of them.  Sect. 1. sub-s. 1, of the Probation of Offenders Act, 1907, may be made sensible by reading the words 'the Court may, without proceeding to conviction' as meaning 'the Court may, without proceeding to record the conviction.' I have no doubt that that was what was intended by the Legislature."
Justice Lush: "A. T. Lawrence, J., has said that this appellant has been neither convicted nor acquitted. I should prefer to say that he has been both convicted and acquitted. Upon the merits of the case the justices have convicted him.  I can see no difference between saying 'offence proved' and saying 'we convict of the offence.' So far, however, as the form is concerned, they have acquitted him.  This is highly illogical.  When I ask myself whether there has been a 'determination' against the appellant I must answer in the affirmative.  The justices have found that the appellant has committed the offence charged in the information.  Serious consequences follow from that determination; nothing follows from the form of the record.  The determination of fact not only exposes this man to obloquy; it makes him liable under the Military Service Acts.  It is said by Mr. Branson that there is no right of appeal because there is only one determination, one dismissing the information.  I do not agree.  The real substantial determination is that the appellant is guilty, and inasmuch as the Summary Jurisdiction Act, 1879, gives a person aggrieved the right to appeal against a determination against him this appellant has a right of appeal."
Professor Edwin H. Sutherland, in an article entitled The Position in the United States with Regard to Probation and Conviction, 19 Canadian Bar Review 522 (1941), states: "Conviction is always a prerequisite to probation in the United States, with two nominal exceptions described below [juvenile court probations].  *** We now pass to the question of the merits of ordering probation without conviction.  This, in the first instance, is a question of terminology.  It is necessary that the court be convinced that the defendant has engaged in criminal behavior before probation can be ordered.  Conviction is implicit in that finding and that order, and it is made explicit by the pronouncement of a few words.  Consequently probation without conviction is a legal fiction.  *** If there is a real difference between the offenders placed on probation without conviction and those placed on probation with conviction, it would appear that other and more important variations could be made in the methods of treatment than this arbitrary and formal difference."
See the collection of comments contained in 19 Canadian Bar Rev. 500-524 (1941).  A comprehensive Criminal Justice Bill of 1938 proposed to continue the use of probation without conviction.  See The English Criminal Justice Bill, 40 Col. L. Rev. 105 (1940) at 110 (n. 26-30), 116-121.  Due to the pressures of World War II, the bill was never passed.  In 1948 the Criminal Justice Act of 1948 (11 and 12 Geo. VI, c. 58) was enacted; by its terms, a conviction is now required in all courts before "probation orders" can be made.  See 28 Halsbury's Statutes of England (2d ed.), at page 353.

 [***12]  

 [*240]  At the outset of this opinion, we indicated that the propriety of the lower  [**720]  court's action in revoking Skinker's probation is properly before us on this appeal.  The existence of "violation of probation" as a distinct and independent offense; and the nature of, and the procedural safeguards surrounding, the revocation hearing, are  [**721]  matters which we have just recently had 

 [*241]  occasion to consider; Scott v. State, 238 Md. 265, 208 A. 2d 575 (1965). In the case at bar, however, the appellant argues a second, and far more serious, issue: the validity vel non of the entire probation-without-verdict proceedings ab initio.  Because of our views on this second issue, we find it unnecessary to consider whether Judge Moorman abused his discretion in revoking appellant's probation, and will dispose of the case 

 [*242]  solely on the basis of the second issue raised.  We hold that the oral order of the lower court purporting to grant probation without verdict was invalid from its passage because of the absence of any written consent of the defendant filed in the proceedings, and that the requirement of the statute that such consent be [***13]  given, is mandatory.  We further hold that the "Motion for Probation without Verdict" filed and signed by appellant's 

 [*243]  counsel was insufficient to constitute "*** the written consent of the person so accused * * *," n3 required by §  641.

n3 We do not feel that so formal a procedure as was employed here (a written "motion," addressed to the court, signed by counsel, served on the State's Attorney, and filed with the clerk of the court with an "affidavit of service" appended) is required in making what is, in its essence, a mere request to the court to consider granting probation to the defendant without finding a verdict.

In the present case, while Skinker had originally elected to plead guilty, the record discloses that this plea was withdrawn on the same day, with the consent of the court.  No later plea was ever made; hence, no plea was properly before the court, unless it be an "automatic" plea of not guilty under Maryland Rules 721 or 722.  There has never been a trial on the merits, or a determination [***14]  that Skinker is guilty beyond a reasonable doubt of forging and uttering the charge account receipt of another.  Skinker finds himself in prison on the basis of 1) a grant of probation without  [**722]  verdict which did not comply with the requirements of the statute, 2) a revocation thereof one month later, coupled with an unwarranted entry by the court of a "verdict of guilty," and 3) a sentence to a penal institution for a period not in excess of four years -- all of which took place without the prior written consent of the accused.  We need only repeat that our system of jurisprudence requires a "lawful trial to convict, and a lawful conviction to sentence"; Ruckle v. Warden, 

 [*244]  335 F. 2d 336, 338 (4 Cir., 1964) cert. den. 379 U.S. 934, 85 S. Ct. 330, 13 L. Ed. 2d 345 (1964). The judgment below must be reversed and the case remanded for a trial.
Judgment reversed and case remanded for trial.  

58 of 138 DOCUMENTS 

PHILLIPS, Etc. v. COOK et al.  

No. 281, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 215; 210 A.2d 743; 1965 Md. LEXIS 541 

June 8, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed; costs to be paid by appellant.  

HEADNOTES:

Partnerships -- Partnership Vehicle Involved In Accident -- Any Evidence, No Matter How Slight, Viewed Most Favorably To Plaintiffs, That Defendant-Partner Was Using Vehicle Within Scope Of Partnership Agreement And Business Calls For Submission Of Question To Jury.
Partnerships -- Liability Of Partnership And Members For Torts Of Partner -- Test As To.  The test of the liability of a partnership and of its members for the torts of any one partner is whether the wrongful act was done within what may reasonably be found to be the scope of the business, purpose and agreement of the partnership and for its benefit, each partner being an agent and principal of the others as to acts committed within such scope.  While the extent of a partner's authority is determined essentially by the same principles as those which measure the scope of an agent's authority, the element of control or authorization is not important in the case of a partnership, for those matters are generally within a partner's power to exercise as a principal.  Code (1957), Art. 73A, sec.  [***2]  13.
Partnerships -- Partnership Vehicle Involved In Accident While Being Operated By Partner -- Question Whether Partner Was Acting Within Scope Of Partnership Business, And For Its Benefit, Held Properly Submitted To Jury Under Circumstances Here.  Where a partnership automobile being operated by one of the partners was involved in a collision, this Court held, that even though the partner was on his way home from his business location at the time, the evidence was sufficient to permit the jury to find that he was acting within the scope of the partnership business arrangement and for its benefit.  The partners were in the used car business, and the very vehicle involved in the accident was a partnership asset for sale at all times and at any location.  The Court also called attention to the facts, inter alia, that the vehicles sometimes carried "for sale" signs; that the partner was on call at his home; that he had no set time and worked irregular hours; that he frequently stopped to conduct partnership business on the way to and from the car lot; that he drove partnership vehicles on business while on his way to or from his home; and that he had full use of the vehicles.  [***3]  His use of the automobile for transportation to and from his home admittedly was "essential" to the partnership arrangement and the most practical and convenient way to operate, and he conducted the partnership business both at the used car lot and from his home.
Partnerships -- Where It Was Shown That Vehicle Was Owned By Partnership For Resale, And Operated By Partner At Time Of Accident, Presumption Arose That Automobile Was Upon Partnership Business -- Then Incumbent For Defendants To Show Otherwise -- Instruction To Jury In This Case Relating To Presumption Was Substantially Correct And Fairly Presented Question To Jury.
Partnerships -- Each Member Of Partnership May Be Held Personally Liable Where Claim Is Based Upon Alleged Tort Committed In Course Of Partnership Business.  

SYLLABUS:

Action by Delores Cook and Marshall Cook, her husband, against Isadore Harris and Daniel Phillips, individually and as co-partners trading as Dan's Used Cars, for damages for personal injuries and other losses allegedly sustained in an automobile collision.  From a judgment for the plaintiffs, entered upon a jury's verdict in their favor, Daniel Phillips, individually and trading as Dan's [***4]  Used Cars, appeals. 

COUNSEL:
Frederick J. Green, Jr., and C. MacNair Speed (on both arguments), with whom were Lord, Whip, Coughlan & Green on the brief, for the appellant.
Everett L. Buckmaster (on both arguments), with whom were George W. White, Jr., Samuel D. Hill and Buckmaster, White, Mindel & Clarke on the brief, for the appellees.  

JUDGES:
Hammond, Marbury, Sybert, Oppenheimer and Barnes, JJ., and reargued before the entire Court.  Marbury, J., delivered the majority opinion of the Court.  Hammond and Sybert, JJ., dissent.  Dissenting Opinion by Hammond, J., at page 224, infra.  

OPINIONBY:
MARBURY 

OPINION:

 [*217]   [**745]  This is an appeal by Daniel Phillips individually, and trading as "Dan's Used Cars", one of the defendants below, from a judgment in favor of Delores Cook and Marshall Cook, her husband, plaintiffs below, entered upon the verdict of a jury in favor of the plaintiffs against the defendants, Isadore Harris and Daniel Phillips, individually and as co-partners trading as Dan's Used Cars, in the Superior Court of Baltimore City.  The verdict was rendered in an action by the Cooks to recover damages for injuries sustained by them as a result [***5]  of a collision involving a partnership automobile operated by Harris and bearing dealer plates issued to Dan's Used Cars by the Department of Motor Vehicles.
The Cooks sued Harris and Phillips, individually, and as co-partners trading as Dan's Used Cars.  The accident in question occurred on January 7, 1960, at about 6:50 p.m., when a partnership automobile operated by Harris struck the rear of a vehicle driven by one Smith, which in turn hit an automobile operated by Delores Cook, at the intersection of Reisterstown Road and Quantico Avenue in Baltimore.  Harris was on his way home from the used car lot when the accident occurred.  He was using the most direct route from the partnership lot and was only five blocks from his home at the time of the incident.
In October 1959, Harris and Phillips entered into a partnership on an equal basis under the name of "Dan's Used Cars" for the purpose of buying and selling used automobiles.  Phillips owned the lot and a gas station adjacent to it.  He went 

 [*218]  into the partnership with Harris because the latter had the experience and money which he did not have to put into the business.  This partnership agreement was oral and it was [***6]  agreed between the partners that each would have an equal voice in the conduct and management of the business.
Neither of the partners owned a personal automobile or had one titled in his individual name.  It was agreed as a part of the partnership arrangement that Harris would use a partnership vehicle for transportation to and from his home.  Under this agreement, he was authorized to demonstrate and sell such automobiles, call on dealers for the purpose of seeing and purchasing used cars, or go to the Department of Motor Vehicles on partnership business after leaving the lot in the evening and before returning the next day.  Both Harris and Phillips could use a partnership automobile as desired.  Such vehicles were for sale at any time during the day or night and at various times and places they had "for sale" signs on the windshields.  Harris had no regular hours to report to the used car lot but could come and go as he saw fit.  Phillips testified that it was essential that Harris have a partnership automobile  [**746]  for his transportation to and from his home, and that it was the most practical way to operate.  It is also significant to note that both Harris and Phillips [***7]  testified at the trial that each paid for the gasoline used in the partnership automobiles they drove. However, Phillips said at the time of the taking of his deposition, which was admitted in evidence, that the gasoline used came out of the used car business and was for cars that were for sale on the lot.  He admitted that the Mercury sedan involved in the collision was for sale and had been sitting on the lot.  This car was titled in the name of the partnership and Phillips could have used it if he wanted to.  After the accident, he objected to Harris using the dealer's tags because "he didn't want to get in any more accidents." About a week later, the partnership was terminated and Harris left the business.
Harris did not appeal.  The questions involved in Phillips' appeal are: I, did the lower court err in refusing to grant appellant's motions for a directed verdict in that there was no legally sufficient evidence from which a jury could find that Harris was acting within the scope of the partnership business 

 [*219]  arrangement and for its benefit; II, was there prejudicial error in the trial court's charge to the jury with respect to the use of the automobile and the effect [***8]  of the presumption arising out of its ownership by the partnership; and III, did the lower court err in refusing to direct a verdict as to appellant individually.
I
If there was any evidence, no matter how slight, viewed in the light most favorable to appellees, that Harris, in using the partnership vehicle, was acting within the scope of the partnership agreement and business, i.e., the use was of some benefit or incidental to the partnership arrangement, then the question was for the jury's determination.  Appellant contends that because Harris was on his way home from the used car lot at the time of the accident, the evidence was insufficient to support a finding by the jury that he was acting within the scope of the partnership arrangement or that such use of the vehicle was of benefit to the partnership.
In a case involving a partnership, the contract of partnership constitutes all of its members as agents of each other and each partner acts both as a principal and as the agent of the others in regard to acts done within the apparent scope of the business, purpose and agreement of the partnership or for its benefit.  It is clear that the partnership is bound by the partner's [***9]  wrongful act if done within the scope of the partnership's business.  Code (1957), Article 73A, Section 13 provides:
"Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his co-partners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act." n1

 [*220]  The test of the liability of the partnership and of its members for the torts of any one partner is whether the wrongful act was done within what may reasonably be found to be the scope of the business of the partnership and for its benefit.  The extent of the authority of a partner is determined essentially by the same principles as those which measure the scope of an agent's authority.   [**747]  Schloss v. Silverman, 172 Md. 632, 192 Atl. 343. Partnership cases may differ from principal and agent and master and servant relationships because in the nonpartnership cases, the element of control or authorization is important.  This is not so in the case of a partnership for [***10]  a partner is also a principal, and control and authorization are generally within his power to exercise.

n1 Section 15.
"All partners are liable:
(a) Jointly and severally for everything chargeable to the partnership under § §  13 and 14."

In the past, we have held both in workmen's compensation cases and others that where an employer authorizes or furnishes the employee transportation to and from his work as an incident to his employment, or as a benefit to the employer, the employee is considered in the course of his employment when so traveling.  This is so whether it be to his place to eat, sleep or to the employee's home.  In Rumple v. Henry H. Meyer Co., Inc., 208 Md. 350, 118 A. 2d 468, where an employer furnished an employee free transportation to and from his work as an incident to his employment, we held that an injury sustained by the employee during such transportation arose out of and in the course of his employment.  In Beam Motor Car Co. v. Loewer, 131 Md. 552, 102 Atl. 908, an employee [***11]  told his employer that he thought he might be able to sell one of its automobiles, and while on his way home and before showing it to the prospective customer, he became involved in an accident.  We held that the question of whether the employee was acting in the scope of his employment was for the jury.  See also Scott v. James Gibbons Co., 192 Md. 319, 64 A. 2d 117, where an employee was going to a place to sleep; and McDowell Etc. v. Magazine Service, 164 Md. 170, 164 Atl. 148, where an employee was going to get his lunch.  Other jurisdictions have held that the question of agency or scope of employment is for the jury where the use of a motor vehicle by an employee or agent to go to and from the place of his employment, to his home or to get his meals, is dictated by the nature of the services to be 

 [*221]  performed, part of the contract of employment, or whether such use is beneficial to both principal and agent or master and servant. Ely v. Rice Bros., 167 S. W. 2d 355 (Tenn.); Randall Insurance, Inc. v. O'Neill, 128 S. E. 2d 239 (N.C.); Merwin v. Kellems, 78 So. 2d 865 (Fla.).
Here, the fact that the defendant partners were in the used car business;  [***12]  that the very vehicle involved in the accident was one of the partnership assets for sale at all times, day or night, at any location; that Harris was on call by Phillips or customers at his home -- he went back to the lot two or three times after going home; that he had no set time and worked irregular hours, coupled with the fact that he frequently stopped to conduct partnership business on the way to and from the lot; drove partnership vehicles to the Department of Motor Vehicles, and to dealers in Baltimore to view and buy used cars while on his way to or from his home; that one of the elements of the partnership arrangement was that each partner could have full use of the vehicles; that the use of the automobile by Harris for transportation to and from his home was admittedly "essential" to the partnership arrangement and the most practical and convenient way to operate; and that Harris conducted partnership business both at the used car lot and from his home requires that the question of whether the use of the automobile at the time of the accident was in the partnership interest and for its benefit be submitted to the jury.  We find that the lower court did not err in refusing [***13]  to grant appellant's motions for a directed verdict as to him in the capacity of a co-partner trading as Dan's Used Cars.
II
The appellant next complains that the lower court committed reversible error in  [**748]  charging the jury that the burden of proof was upon the defendants to show that the vehicle was not at the time being operated on partnership business. The trial court in its charge instructed the jury that the ownership of the automobile by the partnership raised the presumption that it was being operated by Harris on partnership business at the time of the collision and instructed that the jury would have to determine from the evidence whether or not Harris was, in fact, 

 [*222]  operating the automobile on partnership business at the time of the accident.  Judge Carter went on to say:
"When I say it is a rebuttable presumption, what do I mean?  You have the presumption in the first instance, and then it is rebuttable, and then it becomes the duty of the defendant -- that would be Harris and Phillips, operating the partnership -- to go forward with the evidence to establish to your satisfaction by a fair preponderance of the evidence that the car was not at [***14]  that time being operated on partnership business. So again you will have to determine from the facts of the case whether or not at the time of this accident this car was in fact then and there being operated by Mr. Harris on partnership business."
Appellant contends that the above quoted part of the court's charge cast the burden of proof upon the defendants to show that the automobile was not being operated on partnership business. It is the established law in Maryland that the legal presumption arising from the ownership of a motor vehicle places the burden of overcoming the presumption on the owner.  We see no difference between a master and servant situation and one involving a partnership. We have held that in a collision caused by an automobile operated by the servant of the owner, there is a reasonable presumption that the servant was acting in the scope of his employment and upon the business of his master, and the burden of overcoming this presumption is upon the master by showing that the servant was employed in business other than his employer's.  Grier v. Rosenberg, 213 Md. 248, 131 A. 2d 737; Erdman v. Horkheimer & Co., 169 Md. 204, 181 Atl. 221; Jordan  [***15]   Stabler v. Tankersly, 146 Md. 454, 126 Atl. 65. Here, where it was shown that a vehicle was owned by the partnership for resale and operated by one of the partners at the time of the accident, there arose the presumption that the car was upon partnership business. It was incumbent at that time for the defendants to show otherwise.  We think that the court's instruction concerning the presumption was substantially correct, fairly presented the question to the jury, and find no error in this regard.

 [*223]  III
At the conclusion of the plaintiff's evidence and again at the conclusion of all the evidence, Phillips, the appellant, moved for a directed verdict in his favor as an individual.  These motions were apart from and in addition to the motions with regard to directing a verdict in Phillips' favor as a co-partner. Phillips contends that, in any event, he could not be held liable as an individual because partnership assets must first be used in the payment of partnership liabilities and the individual assets in the payment of individual liabilities, although, concededly, a partner's individual assets may be held liable for the payment of partnership debts where partnership [***16]  assets are insufficient.
The principle prevails both at common law and under the Uniform Partnership Act when suit is brought on an alleged contractual obligation of the partnership. Union Bank v. Mechanics' Bank, 80 Md. 371, 30 Atl. 913; Glenn v. Gill, 2 Md. 1; McCulloh v. Dashiell's Adm'r., 1 Harr. & G. 96; Code (1957), Article 73A, §  15 (b).  The rule is otherwise, however, both at common law and under the Uniform Partnership  [**749]  Act, where the claim is based upon an alleged tortious act committed in the course of the partnership business. In the early case of Stockton v. Frey, 4 Gill 406, 422, we held that the members of a firm are individually liable in actions of tort for the acts of the firm, their agents and servants, and for such acts may be sued individually. In Schloss v. Silverman, supra, at page 638, we reaffirmed this principle of the common law even without reference to the Uniform Partnership Act. The Maryland common law rule is in accordance with the great weight of authority.  Weaver v. Marcus, 165 F. 2d 862 (4th Cir.).  See Annotation, Liability of Partners in Tort as Joint and Several, 175 A.L.R. 1310.
It has been held [***17]  that the language of the Uniform Partnership Act, in making all partners jointly and severally liable for tortious acts chargeable to the partnership (Code 1957, Article 73A, § §  13 and 15), reaffirms the common law doctrine.  Weaver v. Marcus, supra; Soberg v. Sanders, 220 N. W. 781 (Mich.).  See also David v. David, 161 Md. 532, 537-538, 157 Atl. 755. In Weaver and Soberg it was held that under the Uniform Partnership Act, as at common law, a member of the partnership 

 [*224]  individually is liable for injuries sustained by reason of a tortious act of another partner or of a servant or agent of the partnership. We agree with the reasoning of these cases that in tort actions, as contrasted with contractual claims, each member of the partnership may be held personally liable.  See Rowley on Partnership, §  15 (a) C and D (2d ed. 1960).  If the tortious act may reasonably be found to be done within the scope of the business of the partnership, the individual partner against whom judgment is obtained may have a right of contribution from the partnership and from the other partners, but that right does not limit the remedy of the plaintiff to proceed against the [***18]  members of the partnership as individuals as well as co-partners.
The motions of the appellant for directed verdicts in his favor as an individual were properly denied.
Judgment affirmed; costs to be paid by appellant.  

DISSENTBY:
HAMMOND 

DISSENT:

Hammond, J., filed the following dissenting opinion, in which Sybert, J., concurred.
I dissent because I think the evidence conclusively rebutted the presumption that the operator of a motor vehicle owned by another is the agent or servant of the owner, acting within the scope of the owner's business, and left no room for the jury to find the partnership liable.  The holding of the majority extends the liability of a partnership for the tortious acts of a partner to new and, to me, unjustified lengths.
There was no contradiction or impeachment of, or reason to doubt, the testimony that Harris had left the used car lot on the evening of the accident for the day and was driving home to eat supper and spend the evening. He planned to remain at home and to drive back to the used car lot the next morning.  It is undisputed that both Harris and Phillips were free to treat vehicles owned by the partnership as their own for personal trips and uses.  [***19]  In the months that the partnership had existed, Harris had returned to the used car lot, after he had gone home, only two or three times.  He never kept a car at home for sale, always on the partnership lot.  The car he drove he had paid 

 [*225]  for although it was titled in the name of the partnership. He did not solicit business away from the lot and apparently had not sold a car away from there, but if some one had asked him to sell the car he was driving he would have done so at the right price.
Restatement, Second, Agency, Sec. 14A (a) says that the rights and liabilities of partners with respect to each other and to third persons are largely determined by agency principles so that the members of a partnership are liable in tort for the acts of a partner when the act is within the  [**750]  agency power of a partner. This Court has agreed, saying in Schloss v. Silverman, 172 Md. 632, 638:
"The liability of one copartner for the tortious acts of another is analogous to the liability of a principal for the acts of his agent, since each partner acts both as principal and as the agent of the other as to acts done within the apparent scope of the business and [***20]  purpose of the partnership and for its benefit.  1 Rowley on Partnership, secs. 509, 485; 47 C. J. 884; 20 R. C. L., Partnership, secs. 94, 126.  The test of the liability of the partnership and of the several members thereof for the torts of any one partner is whether the wrongful act was done within what may be reasonably found to be the scope of the business of the partnership and for its benefit (Ibid; Cooley on Torts, sec. 88), and the scope of the authority of a partner is determined by the same principles as those which measure the scope of an agent's authority."
It is established that a master is not liable for harm caused by the use of an instrumentality entrusted by him to a servant when it is not used in the scope of employment. Restatement, Second, Agency, Sec. 238.  Comment b of that section says:

"The mere fact that the master habitually allows the servant to use the instrumentality, or even that the master maintains the instrumentality entirely for the use of the servant, does not of itself subject the master to liability.  The master is liable only when the instrumentality 

 [*226]  is being used by the servant for the purpose of advancing [***21]  the employer's business or interests, as distinguished from the private affairs of the servant. Thus, a master who purchases an automobile for the convenience of his servants is not subject to liability when a servant is using it for his own purposes; * * *."
The test is not whether the servant on another occasion or at another time might use the instrumentality in furtherance of the master's business or interests or within the scope of the business of the partnership, it is whether at the time the servant causes harm he then reasonably could be found to be so acting.  If the servant's activities at the time of the infliction of the harm were for his own purposes, or in his own behalf, the master is not liable.  It matters not that earlier he had acted for his master or that later he would again act for him; at the time of the harm the immediately predominating purpose of the servant must have some significant relation to the business of the master, if the master is to be held liable.  See cases cited in the Annotation, "Automobile -- Scope of Employment," 51 A. L. R. 2d 120, 128-130, and the Annotation, "Car Salesman Respondeat Superior," 53 A. L. R. 2d 631, 655-661; and also [***22]  Sauriolle v. O'Gorman (N. H.), 163 Atl. 717; Trucking and Storage, Inc. v. Durkin, 183 Md. 584, 588-590. Other cases include McDowell, Pyle & Co., Inc. v. Magazine Service, Inc., 164 Md. 170 (where the facts permitted recovery against the master but the court said at page 174:
"It is not contended that, if the appellant's driver was engaged on business of his own, and not on any business of his employer, the appellant would be liable.  *** If the appellant's driver used the truck to go from appellant's store for his lunch, as he had frequently done, with or without express permission of the employer, there would have been no liability, as that would have been merely an accommodation, or a favor granted him (Myers v. Shipley, 140 Md. 380, 116 A. 645; Fletcher v. Meredith, 148 Md. 580, 129 

 [*227]  A. 795),  [**751]  and would have been wholly independent of, and unmixed with, his employment.");

Wagner v. Page, 179 Md. 465; A. S. Abell Co. v. Sopher, 179 Md. 687; State, Use of Shipley v. Walker, 230 Md. 133; and Tregellas v. American Oil Co., 231 Md. 95.
The majority finds evidence that the driving of the car home to supper and [***23]  for the night was within the scope of the partnership business because "for sale" signs were on the partnership cars "at various times and places," the car was always for sale, Harris had on two or three occasions over a number of months gone back to the used car lot at night, and at times in the morning had driven from his home, before going to the lot, to the Department of Motor Vehicles or to an automobile dealer on partnership business. I find no support in the record for a finding that "for sale" signs were ever on the cars except when they were standing on the lot, certainly none that such a sign was on the car Harris was driving on the night of the accident.  The fact that Harris would have sold the car for a price if some purchaser had flagged him down while he was en route home or telephoned him at home, does not make his purpose in driving home to supper and an evening of television and sleep less predominantly personal and unmixed with business than that of a lawyer driving home from the office with a briefcase full of files (which he may or may not open).  If the lawyer negligently injures someone while driving home, his partners certainly would not be liable because of [***24]  the briefcase or because a client involved in a street accident might flag him down en route or another client call him at home for advice.  The "possibility of sale" theory as a basis for a master's liability for a salesman's negligence (even as a component of a "general entrustment" arrangement) has been rejected by the cases.  In Barrett v. Employers' Liability Assur. Corporation (5th Cir.), 118 F. 2d 799, Judge Hutcheson for the court was unimpressed by this theory.  There an automobile salesman, like others employed by his master, was employed to sell used cars, and had the unrestricted right to use a company car at any time and place on company business and to go to and from his home, on other personal trips and uses, and keep the car at home.  While 

 [*228]  driving on an admitted pleasure trip, the salesman injured a passenger.  The contention of the claimant was that since the salesman was in rightful possession of the car and could sell it at any time, "*** it must be held that it was being driven on the business of the employer * * *." The district judge took a different view and instructed a verdict for the employer, and the Court of Appeals affirmed, saying it [***25]  was clear that the use of the car was personal and not for the business of the owner or the combined pleasure of the salesman and business of the owner.  See also Matheny v. United States Fidelity & Guaranty Co. (La.), 181 So. 647; Oliphant v. Town of Lake Providence (La.), 192 So. 95, 103; Bartek v. Glasers Provisions Co. (Neb.), 71 N. W. 2d 466; and Summerville v. Gillespie (Ore.), 179 P. 2d 719.
Maryland has taken the same viewpoint.  See Phipps v. Milligan, 174 Md. 438, where the fact that the salesman was driving a purchaser of a car, which had been shipped to his new distant home, to the train was held not to make the drive other than personal and not to bind the employer, the automobile agency, for the negligence of the salesman while driving his employer's car; Fletcher v. Meredith, 148 Md. 580, where the fact that the employee was to perform an errand (a delivery) for the employer before he began the trip for which the truck was lent to him, as well as the fact that he had later to return the truck, did not make the tort of the employee on his own trip the tort of the employer; and Tregellas v. American Oil Co., supra.
 [**752]  The answer to [***26]  the theory of the majority, that because Harris occasionally used the car in the morning to visit the Department of Motor Vehicles or an automobile dealer he was on partnership business when he was driving home in the evening after work, is simply that if he had been negligent on such a morning his partner would have been liable with him, but that does not make his partner liable because he was negligent when driving home without any thought of partnership business, any more than it would have if he had been negligent while driving his wife to the doctor after supper, if she had then been taken ill.  For illustrative analogous "driving home" cases, see Senn v. Lackner (Ohio), 105 N. E. 2d 49; Crosby v. Braley and 

 [*229]  Graham (Ore.), 134 P. 2d 110; and McCauley v. Steward (Ariz.), 164 P. 2d 465 (there the car later was to be shown to a prospective customer).  See also Trucking and Storage, Inc. v. Durkin, supra; and Tregellas v. American Oil Co., supra (where the employee was going to work from home).
The defendant's prayer for an instructed verdict should have been granted.  

59 of 138 DOCUMENTS 

JACOBS v. STATE 

No. 349, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 648; 210 A.2d 722; 1965 Md. LEXIS 706 

June 8, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Assault With Intent to Murder -- Evidence Was Sufficient To Convict.
Evidence -- Conflict In, Is For Determination Of Trier Of Facts -- Trial Court's Judgment Will Not Be Set Aside On The Evidence Unless Clearly Erroneous -- Credibility Of Witnesses Judged By Lower Court.  

SYLLABUS:

Martin Jacobs was convicted of assault with intent to murder and from the judgment entered thereon, he appeals.  

COUNSEL:
Marvin B. Steinberg for appellant.
Robert F. Sweeney, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and James W. McAllister, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
PER CURIAM 

OPINION:

 [*648]   [**723]  Judge Harlan, in the Criminal Court of Baltimore, found the appellant, Martin Jacobs, guilty of assault with intent to murder the prosecuting witness, Donald E. Stahl.
On February 4, 1964, Jacobs became involved in an argument with Stahl at "Mary's Bar," at Pratt and Wolfe Streets  [***2]  

 [*649]  in Baltimore City over a shuffle board game.  Both men had been drinking and Mary Krupa, the proprietress, to avoid any trouble at her place, asked Jacobs if he had a knife. Jacobs indicated that he had and the proprietress asked Jacobs to give it to her.  He did this.  The proprietress had been warned by a witness, Donald Canning, to "break it up" as "she was going to have some trouble." Canning testified that he had heard Jacobs call Stahl a foul name and state that if Stahl would "'slip out the door I'll cut you' or 'I'll cut you fast' or words to that effect." This argument, however, was confined to verbal abuse. Stahl and others left "Mary's Bar" and, with others, went over to "Sophie's Bar" at Pratt and Durham Streets, near "Mary's Bar." Stahl played one or two games of shuffle board with Canning and ordered a beer and a bowl of soup. Fifteen to twenty minutes later Jacobs left "Mary's Bar", after first receiving back his knife from the proprietress of that bar, and entered "Sophie's Bar." Immediately thereafter the argument between Jacobs and Stahl began again and there was more verbal abuse of Stahl by Jacobs.  Miss Sophie, the proprietress of Sophie's Bar told [***3]  Jacobs she wanted no trouble and he would have to leave.  He then left.
There is some variation in the testimony in regard to how soon Stahl left Sophie's Bar after Jacobs had gone out.  Miss Sophie testified "He was eating, he was in the place at least fifteen minutes, maybe more, maybe longer." Jacobs indicated that it was almost immediately, but when questioned by the trial court that "it wasn't fifteen minutes as they say?", Jacobs replied "I don't know." Canning indicated that Stahl was eating his soup and "was pretty hot," and "shortly after that, I thought it was almost immediately, but it must have been some time involved, shortly after that he went outside." Jacobs was waiting on the outside, called Stahl a foul name, whereupon Stahl hit Jacobs twice and knocked him down.  One of the blows fractured Jacob's nose.  Jacobs then cut Stahl with his knife. The wounds required over 300 stitches to close.  Stahl was approximately 50 pounds heavier and three inches taller than Jacobs.  When Jacobs was asked on cross-examination why he didn't run, he replied "I guess I was mad, I guess." When asked "Then you intended to cut him, did you not?  You 

 [*650]  wanted to get even with [***4]  him, didn't you"?  Jacobs replied "Yes, sir, I guess so."
Judge Harlan concluded that the evidence established that Jacobs was lying in wait for Stahl outside of "Sophie's Bar" and in view of the prior threats and the whole situation, Jacobs had made the assault with intent to murder Stahl, and found him guilty.
We are of the opinion that there was sufficient evidence to support the verdict.  In view of the prior threat to "cut him and cut him fast," and the fact that Jacobs was waiting for Stahl when he left "Sophie's Bar" after the passage of some substantial amount of time (the trial court resolved this issue of fact against Jacobs), Stahl was entitled to believe he was in apparent imminent or immediate danger of death or serious bodily harm from his potential assailant and was entitled to take such action as he deemed necessary to protect himself.  Guerriero v. State, 213 Md. 545, 132 A. 2d 466 (1957). Stahl was justified under these circumstances in striking the first blow, as Jacobs was the aggressor in this situation.
We have said many times, that when the evidence is conflicting, its determination is for the trier of facts and where  [**724]  the case is tried before [***5]  the trial court, without a jury, the trial court's "judgment will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses." Maryland Rule 886a.  See Johnson v. State, 237 Md. 283, 291, 206 A. 2d 138, 143 (1965) and cases therein cited.  It is clear to us that upon this record we cannot find that the trial court's determination of the facts is clearly erroneous.
Judgment affirmed.  

60 of 138 DOCUMENTS 

EASTERN AIR LINES, INC. v. PHOENIX SAVINGS AND LOAN ASSOCIATION, INC.  

No. 153, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 195; 210 A.2d 515; 1965 Md. LEXIS 540 

June 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Orders reversed, with costs, and case remanded for further proceedings consistent with the opinion herein.  

HEADNOTES:

Statutes of Limitations -- Filing Within Time Of Technically Deficient Claim -- When Filing Of Correct Claim After Statute Expires Will Relate Back To And Validate Original Claim.  The filing within the period of limitations of an assertion of a claim which is deficient or wrong in form, or otherwise technically defective, will toll the statute of limitations to the extent that the filing of a correct assertion of claim after the expiration of the statute will relate back to and validate the original assertion of claim, if the corrected statement does not introduce a new cause of action, or a new theory of liability or new parties.
Creditors -- Where Notice Of Intention To Contest Denial Of Claim Was Offered Within Time Allowed, But Not Signed By Attorney As Allegedly Required By Local Court Rule, Filing Of Properly Signed Petition After Expiration Of Time Allowed Was Permitted, Where No Laches Or Prejudice Resulted.  In the present case a creditor of an insolvent savings and loan association [***2]  in the process of reorganization filed, within the time allowed, its claim in proper form, and as is generally permitted in bankruptcy and receivership proceedings, in proper person. After being notified that its claim had been rejected, the creditor, again in proper person, and well within the time specified by court order, presented to the Clerk of the Circuit Court of Baltimore City a petition indicating its intention to contest the denial of its claim.  The chancellor returned this petition upon the ground that it did not comply with Rule 30 of the Rules of the Supreme Bench of Baltimore City, which requires any "pleading or other paper offered for filing in behalf of a corporation" to be signed by a Maryland attorney.  This Court held that even if it assumed that the notice of contest was a "pleading or other paper" within the meaning of Rule 30, the trial court, the special master and the officials and underwriters of the new association were specifically informed by it that the creditor intended to insist upon its claim.  Only the signature of a Maryland lawyer was needed to make the notice of contest effective, beyond question, to require a hearing upon the merits, and [***3]  the weight of authority seems to be that the absence of a signature to a pleading does not make it void or a nullity, but only irregular.  While the creditor unquestionably was dilatory in waiting some five months before offering a properly signed petition of contest, it was not guilty of laches because no one was hurt or prejudiced thereby.  The new association, with full notice that the claim had been tentatively approved earlier, had agreed to pay it unless good cause could be shown why it was not due, and having failed to show any cause, it could not now complain that the creditor could not correct the technical defects of perfecting its duly filed claim.  There had been no distribution to other creditors, and the funds available therefor were those of the new association.  The present Maryland Rules reflect the earlier case law permitting late filing as a matter of course as to undistributed funds in the hands of the court, where there is no laches amounting to prejudice to others.  

SYLLABUS:

Eastern Air Lines, Inc., asserted a claim against the Phoenix Savings and Loan Association, Inc., which was in the process of reorganization.  From orders disallowing the claim, Eastern appeals.  

COUNSEL:
 [***4]  
Joseph Pickus (on both arguments), with whom were Hyman P. Tatelbaum, Schimmel, Hettleman & Tatelbaum and Sullivan & Pittler on the brief, for the appellant.
Clarence W. Sharp (on both arguments), with whom was Herbert H. Rosenbaum on the brief, for the appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Carter, J., Chief Judge of the Second Judicial Circuit, specially assigned, and reargued before Prescott, C. J., and Hammond, Horney, Marbury, Sybert and Barnes, JJ., and Carter, J., specially assigned.  Hammond, J., delivered the majority opinion of the Court.  Prescott, C. J., and Sybert and Carter, JJ., dissent.  Dissenting Opinion by Carter, J., at page 208, infra.  

OPINIONBY:
HAMMOND 

OPINION:

 [*197]   [**516]  The question presently to be decided is whether Judge Oppenheimer who was supervising the reorganization of Phoenix Savings and Loan Association, Inc., the appellee, in the Circuit Court of Baltimore City properly rejected the claim against Phoenix which Eastern Air Lines, Inc., the appellant, had filed in the proceedings.
The Conservator and a Protective Committee of Phoenix stockholders offered a plan of reorganization which [***5]  after notice and hearing was approved.  The essence of the plan was the pouring into Phoenix of new equity capital of $ 500,000 by the private corporate insurer of the deposits and a group of underwriting entrepreneurs.  Creditors and free shareholders were given twenty days from the "Date of the Plan" (the date the plan was approved by the court for filing in the proceedings) to file claims, and all creditors unpaid on the "Date of Reorganization" (the date the Conservatorship terminated and "Phoenix shall be reorganized and recapitalized") were to be paid in full, without interest, in equal monthly installments, over a period of two years from the "Date of Reorganization." The court was given power to appoint a special master to implement the working out of the Plan.
After the Plan was approved, Eastern, in proper person, timely filed its claim on June 21, 1962, in customary and acceptable form.  On October 29, 1962, Judge Oppenheimer discharged the Conservator as contemplated by the Plan.  The order of discharge read in part as follows:
"19. That the claims of the creditors of Phoenix totalling $ 66,319.63 listed below as approved by the Conservator be and they are hereby ratified [***6]  and shall be paid in accordance with paragraph 13 of the Plan, provided that the provisions of this paragraph shall 

 [*198]  be without prejudice to the proper officers of Phoenix to refuse to honor such claims if good and sufficient cause can be shown.  ***

[The claim of Eastern in the amount of $ 5,306.25 was listed with some twenty-nine others at the end of paragraph 19 of the discharge order under the heading "Claims of Creditors Which Have Been Approved For Payment By The Conservator."]
"21. That any claims against Phoenix other than those listed in paragraph 19 of this Order shall be referred to J. Martin McDonough, Esq., who is hereby appointed as Special Master to take testimony and make a final determination subject to further orders of this Court on the question of whether such claims should be recognized as legal liabilities of Phoenix."
On November 20, 1962, the court passed an order establishing the mechanics for determining what claims of creditors and free shareholders the reorganized association, which was to arise from the ashes of the old Phoenix, must pay.
It provided that proper officers of the new Phoenix should within thirty days file  [***7]   [**517]  with the court a list of creditors whose claims had been approved by the Conservator but rejected by the new Phoenix, "pursuant to Paragraph 19 of the Order" (the order of October 29, discharging the Conservator), and for notice by letter and by publication to interested creditors.  The order then provided that any creditor who did not acquiesce in the rejection of his claim should, by petition filed with the court within sixty days, indicate an intention to contest in whole or in part the denial of such claim and to place the matter at issue before the Special Master. The order further provided that any creditor who failed to petition the court within the specified sixty days "*** shall be deemed to have acquiesced in the denial of such claim *** and this Court shall pass an appropriate order barring such claim *** and declaring any and all rights thereunder null and void." In any proceeding before the Special Master, the creditor was to be designated as the "plaintiff" and the new Phoenix as the "defendant."

 [*199]  Despite the fact that the order of court of October 29, which ratified the approval by the Conservator of Eastern's claim, specified that Phoenix [***8]  could refuse to honor the claim "if good and sufficient cause can be shown" and the order of November 20 directed Phoenix to file with the court a list of the creditors "*** whose claims have been approved by the Conservator but whose claims the proper officers of Phoenix have refused to honor pursuant to Paragraph 19 of the Order [of October 29]" (emphasis supplied), Phoenix has never shown any cause for its rejection of Eastern's claim, contenting itself with advising the court that it had "refused to honor" the claim of Eastern, and those of others listed.  (We were told at the argument that the question Phoenix had was were those aeroplane trips necessary, at least for Phoenix's corporate purposes or best business interests.) Nevertheless, Eastern concedes that all concerned in the Conservatorship proceedings understood from the orders of October 29 and November 20 that it was intended that any claim listed under Paragraph 19 of the order of October 29 could be referred to the Special Master for his determination on the merits, and, so, no point is made as such of the failure of Phoenix to show any reason for rejection of Eastern's claim, save an apparent desire not to [***9]  pay it.
Notice was given Eastern by certified mail posted on December 31, 1962, that its claim had been rejected by Phoenix and on January 16, 1963, well within the specified sixty-day period, Eastern sent a letter to the clerk of the Circuit Court of Baltimore City, offering for filing a petition which began "Comes now Eastern Air Lines, Inc. (Eastern) and shows the Court as follows:" and then recited the facts and amount of Eastern's claim, acknowledged the receipt of Phoenix's challenge to the validity of the claim, and said: "Eastern maintains that its entire claim is valid, due and owing from Phoenix and that the management of Phoenix has no good faith grounds for contesting the validity of such claim." Eastern then petitioned the court "to place this matter at issue before the Special Master." The petition was signed by Eastern's controller.
Judge Oppenheimer wrote Eastern on January 21, 1963, returning the petition, citing Rule 30 of the Supreme Bench of 

 [*200]  Baltimore City, that no "pleading or other paper offered for filing in behalf of a corporation by anyone other than an attorney duly licensed to practice law in the State of Maryland, * * *" could be accepted by [***10]  any clerk of any court comprising the Supreme Bench, and advising Eastern that its petition could be considered only if filed by a Maryland lawyer.
On June 26, 1963, Eastern presented to the court a petition signed on its behalf by Maryland lawyers, setting forth the background of its claim and its effort to have it presented for determination and praying that the matter be set down for hearing before the Special Master. A show cause order  [**518]  was attached to Eastern's petition and the petition and the attached order constituted Paper Number 307 in the proceedings.  Judge Oppenheimer wrote "refused June 26, 1963" on the paper and signed his name.
Also filed on June 26 was an interim report of the Special Master in which he advised the court that three creditors, including Eastern, had not filed the required petitions of contest to Phoenix's rejection of their claim and recommended the signing of an order he had prepared, disallowing these claims.  The report and order constituted Paper Number 308 in the proceedings.  Judge Oppenheimer, on June 26, 1963, signed the order disallowing the claims.
On March 17, 1964, the Special Master filed a supplemental report in which he [***11]  recited the sending to the clerk by Eastern of its petition in proper person on January 16, 1963, asking that its claim be passed on by the Special Master, and the subsequent rejection of that petition and of the disallowance of the claim, and the fact that, despite the signing of the order of June 26, 1963, the Master, "erroneously believing that the claim of Eastern Air Lines, Inc., had been referred to him," had set and, on March 11, 1964, conducted a hearing at which counsel were heard but no testimony taken.  The Master informed the court that he had concluded he had no jurisdiction in the matter because of the action of the court on June 26 in refusing to allow Eastern to have its claim heard, and said: "The Special Master further finds that no petition was timely filed by Eastern Air Lines, Inc., and that, in any event, said claim has been disallowed by the order of June 26, 1963 * * *." On the same 

 [*201]  day, March 17, 1964, the chancellor approved the supplemental report by signing an order which in part read:
"Ordered that the Report of the Special Master on the claim of Eastern Air Lines, Inc., be and it is hereby adopted, ratified and approved, and that the two [***12]  Orders dated June 26, 1963 (Papers 308 and 307) remain in full force and effect."
The appeal is from the orders of June 26, 1963, and the order of March 17, 1964, approving the orders of June 26.
In furtherance of the aim and purpose of law to ascertain and give effect to the truth and so do substantial justice, there has evolved a rule, exemplified in various aspects, that the filing within the period of limitations of an assertion of a claim which is deficient or wrong in form or otherwise technically defective will toll the statute of limitations to the extent that the filing of a correct assertion of claim after the expiration of the statute will relate back to and validate the original assertion of claim, as long as the corrected statement does not introduce a new cause of action or a new theory of liability or new parties.  34 Am. Jur. Limitation of Actions, Secs. 260-264, 266; Cline v. Fountain, Etc., Company, 214 Md. 251; Brooks v. Childress, 198 Md. 1; Doughty v. Prettyman, 219 Md. 83; cf. Haldas v. Comrs. of Charlestown, 207 Md. 255; and Talbott v. Gegenheimer, 237 Md. 62.
An application of this rule, analogous in the present circumstances, is [***13]  found in the bankruptcy decisions.  The courts have alleviated the strictness of the bar in bankruptcy, that claims must be filed within the statutory period of six months if the creditor is to share in the estate, by liberally allowing amendments filed after the expiration of the prescribed period of limitations to validate a defective claim offered within the period. 2 Remington on Bankruptcy (Henderson Ed., 1956), Secs. 723, 746-752.  In Sec. 752, p. 178, the author says: "*** it has long been the practice to permit amendments curing mistakes of either fact or law, in the absence of fraud, provided injustice  [**519]  to others will not result." In Sec. 888, it is said (p. 347):
"The fact that the application to amend does not come until after expiration of the filing time is of no 

 [*202]  particular consequence, except as it precludes the introduction of a new or materially different claim.  Thus a defective verification can be cured, other technical defects supplied, or the claim be particularized or amplified, and minor oversights or errors in stating it can be corrected."
The case of In re Pacific Lumber and Fuel Co. (7th Cir.), 194 F. 2d 995, permitted,  [***14]  several months after the end of the bar period, the amending of a defective claim which had been filed within the prescribed time in order to allow verification by an officer of the corporate claimant instead of by an attorney and to improve the statement of consideration, particularly stressing that the only objection to the original claim was to its form.  For a similar holding, see In re Supreme Appliance and Heating Co. (W. D. Ky.), 100 F. Supp. 200.
Remington says further in Sec. 888 (p. 349): "Even an order expunging a claim does not necessarily remove it beyond the field of amendment or being perfected after time." Cited in support is In re Casey, (S. D. N. Y.) 53 F. Supp. 879. Similarly, Remington continues in that section, "*** the return of a proof of claim by the referee with a request for further details does not prevent it from being considered as having been filed in time, for purposes of amendment." Cited in support of this statement is Cook v. Union Trust Co. (4th Cir.), 71 F. 2d 645, in which the referee returned a claim with instructions, the compliance with which would, he said, entitle it to refiling. The court permitted the refiling nunc [***15]  pro tunc after the bar period had expired. See also Hutchinson v. Otis, Wilcox & Co., 190 U.S. 552, 47 L. Ed. 1179; In re W. H. Calder Company (E. D. N. C.), 146 F. Supp. 389; affirmed sub nom., Fyne v. Atlas Supply Company (4th Cir.), 245 F. 2d 107.
In Glenn on Liquidation (1935), Sec. 456, p. 640, it is said, speaking of amendments having retroactive effect of defective claims in bankruptcy proceedings after the bar period:
"So long as (a) an entirely new claim is not introduced, (b) the amended claim is not flatly inconsistent with the one originally made, and (c) it appears that within the prescribed time limit the creditor 

 [*203]  had placed something on the record which showed the nature of his claim, he will be allowed to amend."

In Sec. 457, at p. 643, the author, speaking of the practice in state courts, as well as federal, says:
"A practice quite different from that of bankruptcy prevails wherever an estate is administered in equity.  Then, although a time limit is always fixed for the presentation of claims, there is no inhibition, much less prohibition, as to allowing a belated creditor to come in.  So long as no one is hurt by it,  [***16]  and the interests of the other creditors are not prejudiced, permission is given almost as a matter of course; at least that is the general interpretation of the decisions."
The texts and cases support these statements.  In 45 Am. Jur. Receivers Sec. 247, p. 192, it is said:

"Where one is guilty of serious inadvertence in not filing his claim in receivership within the time limited by an interlocutory order, but it is clear that he has not been guilty of laches, it does not appear that his inadvertence in any way misled the court, the receiver, or others, and it appears that he has prosecuted his claim with vigor before and after the receivership, he should not be barred of relief."

 [**520]  See also 75 C. J. S. Receivers Sec. 271 (b), p. 908.  The editor of the annotation "Claims against Insolvent -- Time Limitation," 109 A. L. R. 1404, summarizes the conclusion he has derived from researching the cases in part thus (p. 1405):
"In such cases [where rejection would be inequitable because, for example, the allowance would not prejudice others as a surplus would remain after full payment of other claims which would go to the insolvent] equitable considerations [***17]  outweigh the policy of quick and speedy administration of insolvent estates, and, as stated, the courts have under these circumstances frequently allowed the filing of a claim long after the expiration of the time fixed, without regard to whether the delay was excusable."

 [*204]  Judge Hand, in reversing for the Court a district judge who had dismissed a petition which had sought to file a claim against an insolvent corporation in receivership after the expiration of the time limit set by the district judge, said in Employers' Liability Assur. Corp. v. Astoria Mahogany Co. (2d Cir.), 6 F. 2d 945, 946:
"Orders of foreclosure are primarily intended for no more than safety in distribution.  In this regard they are like the early orders of the same kind of the English Court of Chancery in the administration of a decedent's estate.  *** They enable the receivers to dispose of the property, but not to forfeit the rights even of dilatory creditors.  That delay may be enough we do not deny, but certainly not unless the result of allowing the claim is to destroy intermediate interests, arising on the faith of creditors' inaction."
The principles discussed have been applied [***18]  by the Supreme Court in cases, like the one at bar, where the insolvent corporation has emerged from the receivership as a continuing entity and the claim is or has become in essence directly adversary -- creditor vis-a-vis the corporate debtor.  In St. Louis & S. F. R. R. v. Spiller, 274 U.S. 304, 71 L. Ed. 1060, Spiller did not file a claim with the receiver of the railroad, although a court order so required within a specified time.  Rather, he filed a suit against the railroad and, after the railroad was reorganized filed a petition to intervene in the receivership and assert the judgment he had obtained.  The Supreme Court held he was entitled to do so.  Justice Brandeis, for the majority, said (pp. 314-315):
"He [Spiller] was guilty of a serious inadvertence in not filing his claim in the receivership suit within the time limited by the interlocutory order.  But it is clear that he has not been guilty of laches. *** And it does not appear that his inadvertence misled in any way the court, the receivers, the Reorganization Committee, or the new company.  *** With knowledge of Spiller's claims, the Reorganization Committee and 

 [*205]  the new company took over [***19]  the property.  *** Under such circumstances, neither the long delay, nor the failure to file claims as required by the interlocutory and final decrees, should operate to prevent the appropriate relief * * *."

See also Texas and Pacific Railway Company v. Manton, 164 U.S. 636, 41 L. Ed. 580.
The facts in the case before us make it one in which it is particularly appropriate under the principles we have discussed to have permitted the late perfection of a timely filed claim.  Eastern did timely file its claim in proper form and, as is generally permitted in bankruptcy and receivership proceedings (as Phoenix concedes), in proper person. Filing of a claim by a corporation in proper person, it would seem, is permitted by Md. Rule BP4 b 2(d) (3), governing proceedings involving receivers and assignees or trustees for creditors, which reads: "Where the claimant is a corporation, association or partnership, the  [**521]  claim may be verified by any officer or partner thereof, or any agent thereof authorized to make and file such claim." The claim as filed was one of those approved for payment by the Conservator and the court to enable the Protective Committee and the new [***20]  underwriting group to know what valid debts of the old Phoenix the new Phoenix would have to pay over a two-year period.  There is much force to Eastern's argument that the notice of contest required to be filed after Phoenix had -- without showing reason or cause -- rejected Eastern's claim was not a "pleading or other paper" within the meaning of Rule 30 of the Rules of the Supreme Bench of Baltimore City, any more than the original claim, since the notice of contest did no more than reassert the intention of Eastern, originally asserted when it filed the claim, to collect what was due it by Phoenix.  However, Rule 30 has been held constitutional and valid, Ashley-Cooper Sales Services v. Brentwood Mfg. Co., 168 F. Supp. 742 (D. C. Md., Watkins, J.), and if it be assumed that the notice of contest was within the requirements of the Rule, the fact remains that the court, the Special Master and the officials and underwriters of the new Phoenix were specifically informed by the notice of contest that Eastern intended to insist 

 [*206]  on its rights as it saw them.  The notice of contest needed only the signature of a Maryland lawyer to make it, beyond question, effective to [***21]  require a hearing before the Special Master to decide the merits of the claim.
The weight of authority seems to be that the absence of a signature to a pleading does not make it void or a nullity but only irregular.  The case of Canadian Bank of Commerce v. Leale (Ct. of App. Calif.), 111 Pac. 759, citing many supporting cases, so found.  There, a complaint seeking recovery on a promissory note was filed one day before the end of the period of limitations.  Neither the plaintiff nor its counsel had signed the complaint.  An amended complaint bearing both signatures was filed fifteen days later.  The Court held that the filing of the unsigned complaint commenced the action and tolled the statute, and the omission of the signatures was an irregularity which could be cured by an amendment which related back to the original filing.  See also J. M. Batterson Estate, Inc. v. Edwards (Mo.), 115 S. W. 2d 1, to the same effect.
After Judge Oppenheimer wrote Eastern on January 21, 1963, telling it that Maryland counsel must file the petition of contest if it were to be considered, Eastern unquestionably was dilatory in waiting until June 26, some five months later, to offer a petition [***22]  of contest properly signed by Maryland lawyers; but it was not guilty of laches for no one was hurt or prejudiced.  Undoubtedly, it should not have taken a chance that the sixty-day requirement did not continue to be operative but Judge Oppenheimer's letter did not say when a properly signed petition must be presented and Eastern may not have inexcusably assumed that the original sixty-day requirement no longer applied to its claim now that it had in fact put the court and Phoenix on notice it would press its claim.  In any event, the petition, signed by Maryland lawyers, which sought to validate the notice of contest and, to this extent, further validate the properly filed claim, was offered to and refused by the chancellor before the final order barring claims, including Eastern's, was signed, as the numbers of the papers show.  No good purpose was served by the barring of the claim.  If the chancellor had, as we think he should have, permitted Eastern's claim to be determined on the merits, not even significant inconvenience 

 [*207]  to, or delay in, the administration of the Conservatorship proceedings, much less any real harm or prejudice to any other creditor or shareholder [***23]  or to Phoenix or its new owners would have resulted.  The new Phoenix, in order to be released from court supervision so as to begin a new corporate life as an active building association, had, with full notice that Eastern's claim had been tentatively approved as owed and payable, agreed to pay the claim unless it could show good cause why it was not due.   [**522]  Phoenix did not show any cause and, in good conscience, cannot complain that Eastern may not correct the technical defects in the perfection of its duly filed claim and thereby achieve the opportunity to show before the Master, with the burdens of a plaintiff, that the old Phoenix was indebted to it.
The views we take of the case are in harmony with Maryland law on the subject.  Md. Rule BP4 c provides in paragraph 1 that before the date of reference to the auditor a claim filed after the specified bar date "shall be entitled to distribution as though filed by the specified date." Paragraph 2 provides that only for good cause shown can any allowed claim, filed after reference to the auditor, participate "in the immediately following distribution" (emphasis supplied), and if he does he may have to pay all or part [***24]  of the cost of restating the account.  Paragraph 3 provides that one who has filed too late to be included in an auditor's account "*** shall be entitled in any subsequent account to receive a dividend on the same basis as those already received by other creditors in prior accounts, before such other creditors are allowed any further dividends, and thereafter to share with them in any future dividends."
It is apparent that under these rules a creditor who files late has an absolute right which does not, except to the extent that prejudice to others results from the late filing, depend on good cause shown to participate in funds in the hands of the court available for distribution.  The rationale of the rules as to late filing would certainly extend to and include late perfection of an already validly filed claim, and in the case before us, there had not been any distributions or payments to other creditors.  The funds available for distribution under the supervision of the court were those of the new Phoenix, and at that time none had been distributed.

 [*208]  The present rules reflect the earlier case law that, absent laches amounting to prejudice to others, late filing is [***25]  permitted as a matter of course as to undistributed funds in the hands of the court.  See Miller, Equity Procedure (1897), Sec. 540; Strike's Case, 1 Bland 57, 86; Hammond v. Hammond, 2 Bland 306, 364-365; Dixon v. Dixon, 1 Md. Ch. 220; Penrose v. Page, 145 Md. 1, 11; cf. Price v. Merchants Bank, 29 Md. 369, 375-376; Trayhern v. Nat. Mech. Bank, 57 Md. 590, 597-598.
The orders appealed from, that of March 17, 1964, and those of June 26, 1963, which are referred to and approved in the later order, must be reversed and the case remanded for determination on the merits of Eastern's claim against the new Phoenix.
Orders reversed, with costs, and case remanded for further proceedings consistent with the opinion herein.  

DISSENTBY:
CARTER 

DISSENT:

Carter, J., filed the following dissenting opinion, in which Prescott, C. J., and Sybert, J., concurred.
The majority opinion reversing the orders of the Circuit Court of Baltimore City which disallowed the appellant's claim is based on a well settled rule allowing amendments of defective claims which have been seasonably filed in insolvency proceedings after the time set for filing has expired, as well as the filing of [***26]  an original claim after the time limited therefor, when no prejudice will result to others.  I have no disagreement that such is the rule to be followed by an equity court in this state when dealing with that question in an insolvency proceeding.  The point on which I do disagree is that such a question is presented here.
The conclusion of the majority that the attempted filing of the petition with the clerk on January 16, 1963, was, in effect, the attempted filing or refiling of a claim in an insolvency proceeding, and the later offer to file a duly executed petition on June 26, 1963, was, in effect, an offer to amend a claim previously filed, and dealing with the questions here presented on this basis, appears to be an erroneous interpretation  [**523]  of the nature 

 [*209]  of the petition.  On the contrary, it appears from provisions of the court's orders that the petition was, in effect, the initial pleading, or paper, in a judicial proceeding, adversary in nature, which the court had established for the purpose of having the parties fully heard and the merits of the appellant's claim finally determined.  "Judicial proceeding" has been defined as "a proceeding wherein there [***27]  are parties, who have opportunity to be heard, and wherein the tribunal proceeds either to a determination of facts upon evidence or of law upon proved or conceded facts." Black's Law Dictionary (4th ed.) p. 986.  The same authority defines "adversary proceeding" at p. 73 as "one having opposing parties; contested, as distinguished from an ex parte application, * * *."
Under the authority of Code (Cum. Supp. 1964), Art. 23, §  161K, the court on July 17, 1961, appointed a conservator of the appellee savings and loan association, hereafter called "Phoenix." Thereafter, the appellant filed its claim against the association in the amount of $ 5306.25.  On October 29, 1962, the court passed an order confirming the approved plan of reorganization, discharging the conservator, turning the affairs of the old Phoenix over to an interim board of the new Phoenix and in paragraph 19, conditionally ratifying certain claims against Phoenix which had previously been approved by the conservator, including the appellant's claim, but providing further "that the provisions of this paragraph [19] shall be without prejudice to the proper officers of Phoenix to refuse to honor such claims if [***28]  good and sufficient cause can be shown."
By order dated November 20, 1962, the court provided the procedure for referral of the denied claims to a special master, which required that a list of all claims rejected by the officers of Phoenix be filed with the court within thirty days; that notice by certified letter be sent to all listed creditors advising them that the conservator had been discharged; that the old Phoenix had been reorganized; that in accordance with the plan of reorganization the claim of the recipient of the notice had been denied by the proper officers of the new Phoenix and that the court had "ordered the matter referred to a Special Master for the taking of testimony and a final determination on the question of whether such claim *** shall be recognized as a legal obligation 

 [*210]  of Phoenix." (Emphasis supplied.) A copy of the order, included with the notice, further required that any creditor who did not acquiesce in the denial of its claim "shall, within 60 days of the mailing of the certified letter, *** petition this Court, contesting in whole or in part and placing at issue before the Special Master the denial of such claim * * *." And that [***29]  if a creditor so notified "shall fail to petition this Court within the period specified *** said creditor *** shall be deemed to have acquiesced in the denial of such claim * * *"; that the special master give appropriate notice of the time and place of hearing, to be held not less than thirty days after the filing of the petition; and that in such proceeding "the creditor *** shall be 'plaintiff' and Phoenix shall be 'defendant.'" The time limitation set by the order for filing of the petition by the appellant expired on March 1, 1963.  On January 16, 1963, the appellant presented its petition to the clerk asserting that its entire claim was valid and requesting the matter be placed at issue before the special master. The petition was not filed but returned to the appellant with a letter from Judge Oppenheimer pointing out that under the provisions of Rule 30 of the Supreme Bench of Baltimore City, since the claimant was a corporation, it would be necessary to file the petition through legal counsel.  Nothing further was heard from the appellant until June 26, 1963, on which day it offered to refile its petition through counsel, which the court refused, on the basis it had [***30]  not been seasonably filed in compliance with the order of court.  On the same day the court passed an order disallowing the appellant's claim.
 [**524]  The court procedure prescribed for final determination does not appear to establish a method of merely reasserting or refiling the claim which the appellant originally filed on June 21, 1962, but rather, gives the appellant notice that if it does not enter into a judicial proceeding, adversary in nature, before the special master, to finally determine the merits of its claim, according to the prescribed procedure, and thereby establish the claim, such claim will be disallowed.  The notice further pointed out that in order to present the matter before the master it would be necessary that the appellant file a petition with the court within sixty days setting forth what part of the denied 

 [*211]  claim is being contested by it and asking the master to put the matter at issue.  Such a proceeding clearly seems judicial in nature and therefore comes within the letter and spirit of Rule 30 of the Supreme Bench of Baltimore City.  This rule prohibits any clerk from accepting "any pleading or other paper offered for filing in behalf [***31]  of a corporation by anyone other than an attorney *** in any suit or action at law or in equity *** or to which such corporation is a party." The rule was found not to be unconstitutional in Ashley-Cooper Sales Services v. Brentwood Mfg. Co., 168 F. Supp. 742 (D. Md. 1958), in an opinion by Judge Watkins who ruled it was a reasonable procedural regulation.  In discussing the purposes of the rule, it is stated (at p. 745) that "it arises out of the necessity, in the proper administration of justice, of having legal proceedings carried on according to the rules of law and the practice of courts and by those charged with the responsibility of legal knowledge and professional duty." The hearing to be conducted here appears to be a legal proceeding to be carried on and determined according to the rules of law and practice of courts wherein the legal knowledge and professional duty of a duly licensed member of the bar is as necessary and valuable to the orderly and effective presentation of the cause as would ever be the situation in any suit formally conducted before the circuit court.  It seems, therefore, that this proceeding should be considered both a suit in equity [***32]  within the meaning of that phrase as used in the rule and a legal proceeding in the sense in which such phrase is used in the opinion interpreting the purposes of the rule in the Brentwood case.  Therefore, the provisions of the rule were properly applicable to the petition which the appellant attempted to file on January 16, 1963, and it was thereby made ineligible for filing in the form in which it was presented.
It is conceded that the Supreme Bench had the authority to adopt the rule involved in this case under the provisions of Maryland Rule 1 f.  We have stated that rules which this Court has the power to adopt have the force of law and there is therefore "no reason why they are not controlled by the same principles applicable to legislative enactments." Goldston v. Karukas, 180 Md. 232, 235, 23 A. 2d 691 (1942). In dealing with the 

 [*212]  statute of limitations this Court has held that the filing of a suit arrests the running of the statute, Lichtenberg v. Joyce, 183 Md. 689, 699, 39 A. 2d 789 (1944), Zier v. Chesapeake Ry. Co., 98 Md. 35, 40, 56 Atl. 385 (1903). The appellant urges that, by analogy, the offer to file the petition in this case tolls [***33]  or arrests the running of limitations.  The difficulty with this contention is that the petition was never in fact filed with the court or accepted for that purpose.  However, the authorities in other jurisdictions indicate that even if it had been erroneously filed, it would not have operated as an arrest in the running of the time limitation. What constitutes an arrest by reason of the institution of a suit is discussed generally in 34 Am.Jur., Limitation of Actions, §  254, where it is said:

"Proceedings which are void do not suspend the operation of the statute * * *.  Nor will the running of the statute of limitations be stopped by the institution of a suit by a foreign corporation which has not complied with the provisions of a local statute which require that it shall not prosecute a suit in the state until it has complied.  In such a case, a subsequent compliance  [**525]  with the statute will not validate the action from its inception so as to avoid the limitation period which had expired between the time of commencing the suit and the compliance with the statute."

The provisions of Rule 30 are mandatory and require compliance therewith as a condition [***34]  precedent to the right of a corporation to institute suit or file papers or pleadings therein.  Until there has been compliance any attempt to do so would appear void and of no legal consequence.  Therefore, the attempt to file the petition on January 16, 1963, was not the institution of a suit and did not arrest the running of the sixty day limitation period.
In respect to the contention that the court abused its discretion in refusing to suspend or modify its order so as to allow the appellant to file a belated petition after the time limited therefor, this Court has held that rules of court should not be arbitrarily suspended or modified to suit the convenience of litigants in any given case and that a court has no discretion to 

 [*213]  dispense with its own rules at its pleasure.  See Quynn v. Carroll, 22 Md. 288, 295-297 (1864); Hughes v. Jackson, 12 Md. 450, 463 (1858); Gist v. Drakely, 2 Gill 330, 346 (1844); Wall v. Wall, 2 H & G 79 (1827). Although a court has inherent power to suspend or modify its rules where justice requires, in Carroll v. Barber, 7 H & J 454 (1826), where the Court was concerned with the surrender of bail on the sixth day after [***35]  the term had convened when the rule required surrender within five days, it was said at p. 456:

"Courts will sometimes enlarge or suspend their rules when the ends of justice require it to be done.  But there is nothing of that kind here.  It appears to be the common case of a special bail neglecting to avail himself of the time allowed him to surrender his principal; and there is nothing to find fault with, in the refusal of the court to receive the surrender after the expiration of the time.  Rules of court are necessary to the due administration of justice; but the rule in question would be perfectly useless, if in such a case as this it is not to be enforced."

And in Wall v. Wall, supra, the Court in determining that a plea of limitations must be filed within the time fixed by rule of court, said, at p. 81:

"But where a court has established rules for its government and that of suitors, fixing days for the filing of pleadings; and where the long established practice of the courts require special pleas to be drawn up and filed at length, there exists no discretion in the inferior court to dispense at pleasure with their own rules, or to innovate upon [***36]  such established practice; * * *."

According to these authorities, it appears that under ordinary circumstances, the court has no authority or discretion to suspend or modify its rules merely to accommodate the convenience of a litigant.  By the same reasoning employed in the Carroll and Wall cases, the court order fixing the time within which creditors were required to file their petitions, in the interest of orderly procedure and the prompt administration of justice, 

 [*214]  would be made useless if it is to be suspended so as to give any creditor who neglected to comply with its provisions, permission to file his petition at any time after the time limit, as long as the matter is still before the court, no distribution of funds have been made, and no prejudice would thereby result to others.  On the other hand, a ruling which would appear more in line with the prior decisions of this Court would require the person seeking suspension to show good cause, such as circumstances beyond his control which had prevented his compliance and that no prejudice would occur to others, in order to justify the court in considering modification or suspension in the interest of [***37]  promoting justice.  No such situation is here presented as to authorize suspension or modification much less constitute an abuse of judicial discretion for failure to do so.
 [**526]  I would therefore hold that the petition presented on January 16, 1963, did not comply with the requirements of Rule 30; that the attempt to file such a petition on that date did not arrest the running of the sixty day limitation period set by the order, and that Judge Oppenheimer's ruling refusing the appellant permission to file the amended petition after March 1, 1963, and disallowing the claim, was correct.
The majority opinion points out that some question exists concerning the right of the officers of Phoenix to have refused to honor the appellant's claim since there is no evidence to establish that they had "good and sufficient cause" for such action.  The court orders fail to disclose any requirement that the officers of Phoenix submit their determinations to the court or any other authority for approval.  In the absence of evidence to establish an abuse of discretion by the officers in arriving at a decision to deny the claim for good cause, it appears proper to assume that there was no such [***38]  abuse.  Apparently no serious issue was raised below on this point.
In my opinion, the judgment below should be affirmed.  Chief Judge Prescott and Judge Sybert have authorized me to state that they concur in this dissent.  

61 of 138 DOCUMENTS 

STACY, et ux. v. MONTGOMERY COUNTY, MARYLAND, et al.  

No. 332, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 189; 210 A.2d 540; 1965 Md. LEXIS 539 

June 3, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed July 2, 1965, Denied August 2, 1965.  

PRIOR HISTORY:
Appeal from the Circuit Court for Montgomery County; Pugh, J.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

Zoning -- Montgomery County -- Granting Of Variance Upheld Under Circumstances Of This Case -- Ordinance Requirements For Granting Special Exceptions And Variances Distinguished.  In the instant case, a party purchased property in a single family residential zone with the intention of conducting a child care home, which was permitted in such zone if the County Board of Appeals for Montgomery County granted a special exception. The Board granted the special exception. While an appeal from this ruling was pending, the applicant found that he needed a variance since his building was less than the twenty-five feet from all property lines required by the County Code for the proposed use.  On appeal, the Circuit Court reversed the action of the Board granting the special exception because of the failure to meet the requirements as to distance. However, the Board subsequently granted the necessary variance and appellants appealed this ruling.  This Court held that the lower court was not in error in affirming [***2]  the decision of the Board in granting the variance. Contrary to appellants' contention that the applicant purchased the property with the intention of applying for a variance and, therefore, was not entitled to special privileges, the Court found that when the property was purchased it was known that a request for a special exception would be necessary but the evidence showed that the need for the variance to accompany the original request was not determined until after the special exception had been granted.  Under the zoning ordinance a special exception is one which is controlled and which is expressly permissible in a given zone, and may be granted after a public hearing, upon a finding that the conditions of the ordinance are satisfied; a variance is authorized where literal enforcement of the ordinance would result in unnecessary hardships -- but the variance provision is not to be construed to permit the Board "under the guise of a variance, to change the use of land." Here, there was testimony as to the unusual shape of the property and the Board determined from all of the evidence that all the criteria had been met by the applicant to sustain the granting of the variance.  [***3]  Under the circumstances of this case the Court refused to invoke the language in an earlier case, under the Baltimore City Zoning Ordinance, that one seeking a variance must show that if he complied with the ordinance he would not be able to secure a reasonable return from, or to make any reasonable use of, his property.  The applicant complied with the other tests set out in the case cited -- that the difficulties or hardships were peculiar to the property in question in contrast with those of other property owners in the same district and that the hardship was not the result of the applicant's own actions.
Administrative Law -- A Court May Not Substitute Its Judgment As To Soundness Of Administrative Body's Action Unless Action Was Illegal, Arbitrary, Or Discriminatory.  

SYLLABUS:

Suit by Erle M. Stacy, et ux., in which Montgomery County was permitted to intervene as a defendant, appealing the action of the County Board of Appeals for Montgomery County, in granting a zoning variance.  From an order affirming the Board's ruling in granting the variance, plaintiffs appeal.  

COUNSEL:
George L. Quinn, Jr., with whom was Esther Cady Quinn on the brief, for appellants.
John C.  [***4]   Tracey for Ernest L. Kendall, part of appellees; Richard J. Sincoff, Assistant County Attorney, with whom was Robert G. Tobin, Jr., County Attorney, on the brief, for Montgomery County, Maryland, other appellee.  

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

OPINIONBY:
MARBURY 

OPINION:

 [*191]   [**541]  This is an appeal from an order dated August 11, 1964, of the Circuit Court for Montgomery County affirming the action of the County Board of Appeals for Montgomery County (the Board) dated January 10, 1964, granting a variance of four feet from the restrictions imposed by Section 104-29 (i) (1) d n1 of the Montgomery County Zoning Ordinance n2 to Ernest L. Kendall, the applicant before the Board.

n1 This section provides: d Child care homes providing child care to more than twenty but not more than forty children at any one time:
Total Area -- 20,000 square feet
Frontage -- 150 feet
Setback -- 25 feet from all property lines
n2 Montgomery County Code, 1960, Chapter 104.

 [***5]  
Applicant, Kendall, contracted to purchase the property and improvements thereon at 2101 Seminary Road in Silver Spring, in July 1963, and became the owner thereof in August.  The property is in a R-60 zone which permits single family residential homes, and has in the past been used for this purpose.  He purchased the property with the intention of conducting a child care home, which is permitted in a R-60 zone classification if granted a special exception by the Board.  Shortly after he contracted to purchase the property, he applied to the Board for this special exception. It was granted, and appellants, adjacent property owners, appealed the ruling to the Circuit Court.  While this appeal was pending Kendall discovered that he needed a variance since his building was less than the required 25 feet from the Stacys' side yard property lines as required in the Zoning Code, Section 104-29 (i) (1) d.  Accordingly, he filed another application with the Board requesting a variance from the 25 foot setback restriction.  In the meantime, the Circuit Court reversed the action of the Board in granting the special exception since the building failed to meet the requirements of the zoning [***6]  ordinance as to distance. Then, Kendall's application for a variance was granted after a hearing by the Board, which found that by reason of the extraordinary shape of the specific parcel of land on 

 [*192]  which the building to be used as a child care home was located, the strict application of the zoning regulations would result in exceptional hardship to the owner of the property.  Evidence at the hearing indicated that the distance from the corner of the fifty year old residence to the appellants' property line was 24.42 feet. A porch, which Kendall offered to remove if required by the Board, was 21 feet from the Stacys' side lot line.  On March 12, 1964, the Circuit Court passed an order permitting Montgomery County, one of the appellees here, to intervene as a defendant.  The Board's ruling granting the variance was also appealed by the Stacys to the Circuit Court, which affirmed the Board's action by its order of August 11.  They then appealed to this Court.
The appellants first argue that where one purchases realty with the intention to apply for a variance from restrictions imposed by  [**542]  a zoning ordinance, he may not contend that such restrictions caused him [***7]  peculiar hardships that entitle him to the special privileges he seeks.  From a careful examination of the record, we find that this is not the case here before us.  Kendall purchased the property in question with the knowledge that a request for a special exception would be necessary for the operation of a child care home, a use which is permitted for this R-60 zoned property by the zoning laws of Montgomery County.  The testimony shows that the need for a variance to accompany the original request was not determined until after the special exception had been granted.  A re-survey was made of the property at the request of the applicant when there seemed to be some doubt as to the exact footage as shown on the plat previously submitted to the Board, which indicated the distance as 25 feet. The Board in its opinion found that the re-survey plat of the applicant's property showed "a surveyor's nightmare." It went on to say:

"The front lot line runs three different courses for a total distance of 159.19 feet. The rear line is 112.96 feet. While the east side line is straight, the west line runs four different courses and cuts into the property a distance of 25.88 feet at one [***8]  point.  This unusual situation places the corner of the appellant's [applicant's] 

 [*193]  house 24.42 feet from the side lot line and brings an overhanging porch 21 feet from the line.  The result is a technical violation of the 25-foot setback requirements for Child Care Homes in residential zones, * * *."

There is a marked distinction between "variance" and "special exception" in Montgomery County.  A special exception within the meaning of the zoning ordinance is one which is controlled and which is expressly permissible in a given zone. It is granted by the Board, after a public hearing, upon a finding that conditions of the zoning ordinance are satisfied.  A variance is authorized under the terms of the zoning ordinance where the literal enforcement of its terms would result in unnecessary hardships. By Section 104-22(a) (1) of the Montgomery County Code, the County Board of Appeals is authorized to "[g]rant variances from the strict application of this chapter when by reason of exceptional narrowness, shallowness, or shape of specific parcels of property *** or by reason of exceptional topographical conditions or other extraordinary situations or conditions [***9]  of specific parcels of property, the strict application of these regulations or amendments thereto would result in peculiar and unusual practical difficulties to, or exceptional or undue hardship upon, the owner of said property; provided that such relief or variances can be granted without substantial impairment of the intent, purpose, and integrity of the general plan * * *." It is further provided that this provision shall not be construed to permit the Board "under the guise of a variance, to change the use of land." See Montgomery Co. v. Merlands Club, 202 Md. 279, 96 A. 2d 261.
The Board heard the testimony of Clinton Frey, Jr., a surveyor, who, after having been qualified as an expert, testified as to the unusual shape of the property.  The Board exercising its discretion in accordance with its expertise in zoning matters, determined from all of the evidence that all criteria had been met by the applicant to sustain the granting of the variance. We find that the court below was not in error in affirming the decision of the Board in granting the variance as provided in Section 104-22 of the Montgomery County ordinance under the circumstances presented in this case.

 [*194]   [***10]  Appellant relying on Marino v. City of Baltimore, 215 Md. 206, 137 A. 2d 198, contends that Kendall did not meet all the tests as set out in that case.  There, we said that one seeking a variance under the provisions of Section 36(c) of the Baltimore City Zoning Ordinance due to a hardship must show: (i) that if he complied with the ordinance he would not be able to secure a reasonable  [**543]  return from or to make any reasonable use of, his property; (ii) that the difficulties or hardships were peculiar to the property in question in contrast with those of other property owners in the same district; and (iii) that the hardship was not the result of the applicant's own actions.  However, Section 104-22(a) (1) of the Montgomery County ordinance is quite different in language from that discussed by this Court in the Marino case.  The language of the Montgomery County ordinance, above quoted, in regard to a variance in our opinion distinguishes this case from Marino, and our review of the testimony before the Board leads us to the conclusion that the strict application of that portion of the statement in (i) set forth in Marino as applied to Section 36(c) of the Baltimore [***11]  City zoning ordinance can not be invoked to deny the granting of the variance under the facts and circumstances of this case.  As to the second and third points, there is no doubt that the shape of the subject property presented the hardship which the record indicates was not known to Kendall before he purchased the land, and the need for a variance was neither planned by him nor was it the result of his own action.  The "surveyor's nightmare" referred to by the Board was created by prior owners (Stacy's family) before Kendall bought the property and without his awareness that he would need a variance before he could operate a child care home.
We have held many times that a court may not substitute its judgment as to the wisdom or soundness of the action taken by an administrative body unless it is clear that such action was illegal, arbitrary or discriminatory.  Baltimore v. Sapero, 230 Md. 291, 186 A. 2d 884; Marino v. City of Baltimore, supra; Serio v. City of Baltimore, 208 Md. 545, 119 A. 2d 387. The lower court rightly affirmed the decision of the Board.
Order affirmed, with costs.  

62 of 138 DOCUMENTS 

MILLER v. STATE 

No. 304, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 136; 210 A.2d 394; 1965 Md. LEXIS 532 

May 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Cirminal Court of Baltimore; Harris, J.  

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Arrest -- Claim Of Illegality Of, Where Warrant Was Served Almost Two Years After Commission Of Crimes Charged, Rejected -- Question Was Not Properly Raised -- Record Lacked Details Of Arrest In New York And Transfer To Baltimore Making It Impossible To Find That Coming Into Custody Of Baltimore Police Was Illegal.  On October 28, 1962, some three months after appellant sold narcotics to a police officer, the police procured a warrant for his arrest. It was not served because he had left Baltimore for life in New York.  In the Spring of 1964 he was arrested in New York on a federal warrant charging him with travelling across state lines to avoid prosecution.  He was then returned to Baltimore.  In this appeal he contended that his arrest was illegal because the Maryland warrant was not served until almost two years after the happening of the crimes charged. The Court rejected his contention.  No question was raised as to the validity of the warrant or of the proceedings by which appellant was brought before the court for trial either before the trial began, under Md. Rule 725 b, or at [***2]  the trial, with at least two consequences.  First, the question was not properly before the Court for review under Rule 885, applicable to appeals in criminal cases under Rule 772.  Second, the record was bare of specifics of what happened after appellant's arrest in New York on the federal warrant and as to how and by what authority he was returned to Baltimore.  In any event, as to a claim of unconstitutional delay between the issuance and service of a warrant, this Court has previously held that the general rule is that the right to a speedy trial does not arise until a prosecution has been instituted and an accused cannot successfully complain of delay in the institution of the prosecution if it is within the applicable period of limitations.  Here the time lag between the day of the crime and the swearing out of the warrant was reasonable and understandable.
Narcotic Drugs -- Claim Of Insufficiency Of Evidence -- Testimony Of Police, Believed By Trial Court, Was Enough To Show Appellant Guilty -- There Was Also His Incriminating Admission.  

SYLLABUS:

Bernard Miller was convicted of the possession, control and sale of heroin, and of being a second offender by the trial court, sitting [***3]  without a jury, and from the judgments entered thereon, he appeals.  

COUNSEL:
Morris Lee Kaplan, with whom were Michael Lee Kaplan and Philip A. Provenza on the brief, 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:
Prescott, C. J., and Hammond, Horney, Sybert and Oppenheimer, JJ.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*137]   [**394]  Officer Marshall of the Narcotics Squad of the Baltimore Police Department testified at the trial of this case that in August 1962 he went with an informer named Matthews to a lunchroom at which the appellant Miller, known as Uncle Bernie, was the manager and short order cook.  Matthews asked Uncle Bernie if he had any eggs, meaning not the standard fare of the breakfast table, either boiled, poached, coddled, shirred, fried, scrambled, or in an  [**395]  omelet, but in the argot of those in the world of narcotics, "heroin in a capsule." Uncle Bernie replied [***4]  that he had no eggs but he did have two eight-dollar packs of heroin he could let them have for "a fin" each.  

 [*138]  Officer Marshall handed a ten-dollar bill (two fins), which had been given him for the purpose by the Narcotics Bureau, to Uncle Bernie, who passed it to a man standing behind the counter whose name was Roosevelt Jones, but apparently was better known to his friends as "June Bug," and said: "Give me a deuce, June Bug." Uncle Bernie then left the lunchroom and, in a minute or so returned, saying: "You are O. K. man, it's on the seat, the driver's side." Officer Marshall immediately went to the car and found on the driver's side of the front seat two glassine envelopes, each of which contained white powder, which later proved to be heroin.
On October 28, some three months after this occurrence, the police procured a warrant for the arrest of the appellant.  It was not served because he had left Baltimore for life in New York.  In the Spring of 1964 he was arrested in New York on a federal warrant charging him with travelling across State lines to avoid prosecution, contrary to the Act of Congress codified in 18 U. S. C., Sec. 1073.  He was then returned to Baltimore.  [***5]  On being confronted by Officer Marshall at police headquarters, the appellant said of Marshall, according to the testimony of Lieutenant Simonsen: "I saw him in my restaurant on that night.  I figured he was a police." When asked why he had left Baltimore, he answered: "I thought he [Marshall] was a police and I did not want to incriminate myself."
Judge Harris found Miller guilty generally on an indictment charging, in three counts, possession, sale and control of heroin, and, on an addendum, of being a second offender, and gave him the minimum sentence.
Miller contends that his arrest was illegal because the Maryland warrant was not served until almost two years after the happening of the crimes charged and, therefore, his incriminating admission after he returned to Baltimore and, indeed, all that thereafter took place including his indictment, trial and conviction, were invalid, nugatory and void.
No question was raised as to the validity of the warrant or of the proceedings by which Miller was brought before the court for trial either before the trial began, under Md. Rule 725b, or at the trial, with at least two consequences.  First, the question is not properly before [***6]  us for review under Rule 885, applicable 

 [*139]  to appeals in criminal cases under Rule 772.  Second, the record is bare of details or specifics of what happened after Miller was arrested in New York on the federal warrant and as to how and by what authority he was returned to Baltimore.  There is an indication that he was extradited.  It is not possible on this record to find that Miller's coming into the custody of the Baltimore police was illegal.  In any event, assuming the state warrant was used in 1964 in bringing Miller into the hands of the Baltimore police, we have held in Price v. State, 235 Md. 295, where the claim was of unconstitutional delay between the issuance and service of a warrant, that the general rule, with exceptions not here pertinent, is that the right to a speedy trial does not arise until a prosecution has been instituted and an accused cannot successfully complain of delay in the institution of the prosecution if it is within the applicable period of limitations.
Here the time lag between the day of the crime and the swearing out of the warrant was reasonable and understandable. The delay in the apprehension of Miller was due to his flight to [***7]  avoid being apprehended, a circumstance which deprives him of any possibility of showing or availing himself of prejudice, if such a possibility otherwise would be open to him.
Miller's defense to the charges against him was that June Bug was the real  [**396]  principal in the case and he, Miller, but an innocent bystander.  His claim of the insufficiency of the evidence really is a claim that the court rejected his version of what took place at the restaurant and accepted that of the police.  The version of the police clearly was enough, if believed (and Judge Harris said he believed it), to show that Miller was guilty.  In addition, there was his incriminating admission.
Judgments affirmed.  

63 of 138 DOCUMENTS 

JOHNSON And CARROLL v. STATE (Two Appeals in One Record) 

No. 328, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 643; 210 A.2d 399; 1965 Md. LEXIS 703 

May 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments and sentences affirmed.  

HEADNOTES:

Criminal Law -- Evidence Held More Than Sufficient To Sustain Convictions Of Larceny Of Goods Valued At Less Than $ 100.00 -- Witnesses Saw Either One Or Both Of Defendants Removing Television Set From House In Absence Of Occupant -- Identification At Police Line-Up.
Criminal Law -- Evidence, Credibility Of, Is For Trier Of Facts -- Appellate Function Is Merely To Decide Whether Evidence Was Sufficient To Permit Proper Conclusion Of Guilt Beyond Reasonable Doubt.
Appeal -- Criminal Case -- Where No Objection Below As To Certain Points, Claims Were Not Preserved For Review On Appeal.  

SYLLABUS:

Ernest Johnson and Robert Bernard Carroll were convicted in non-jury cases of unlawfully stealing, taking and carrying away a television set valued at $ 75.00, and from the judgments entered thereon, they appeal.  

COUNSEL:
Joseph Burke 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 Donald Needle, Assistant State's Attorney, on the brief,  [***2]  for the appellee.  

JUDGES:
Prescott, C. J., and Horney, Marbury, Oppenheimer and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*644]   [**400]  Ernest Johnson and Robert Bernard Carroll, appellants, were tried by Judge Harlan without a jury, in the Criminal Court of Baltimore, and found guilty on September 15, 1964, of unlawfully stealing, taking and carrying away a television set valued at $ 75.  They were sentenced to eighteen months in the Maryland Correctional Institute, Johnson's sentence to run consecutively with any sentence for violation of parole.  They appealed from the judgments and sentences.
Henrietta Satterfield on August 2, 1964, lived at 928 North Carrollton Avenue in Baltimore.  She left her home at about 10:00 a.m. to go to church and when she returned an hour later, her television was missing.  She testified that her husband paid about $ 75 for the set at a pawn shop and that she had had it about a year and a half.  The record indicates that a witness, Gilmor, saw one of the appellants, Johnson, leave the Satterfield house with a television set and meet appellant Carroll at the corner of Mosher Street and Carrollton Avenue, whence they drove off with the set.  Two other [***3]  witnesses testified that they also saw the events set out above.  The television was not recovered.
Appellants on appeal argue that there was not sufficient evidence to justify sustaining the convictions.  We do not agree.  The evidence produced against the appellants was more than sufficient to sustain their convictions of larceny of goods valued at less than $ 100.  Three neighbors saw either one or both appellants removing a television set from a house in the absence of the occupant.  These witnesses attended a police line-up and identified appellants.  We have held on numerous occasions that the question of credibility of the evidence is for the trier of the facts.  Our function is merely to decide whether there was sufficient evidence from which the trier of the facts could properly draw the conclusion of guilt beyond a reasonable doubt.  Armwood v. State, 229 Md. 565, 185 A. 2d 357; Maryland Rule 886 a.  Appellants now argue that the testimony as to the 

 [*645]  value of the television set was based on hearsay and should have been excluded, and that their arrest was illegal.  However, upon examination of the record, we find no objection as to these points and, therefore,  [***4]  they have not been preserved for review on appeal.  Porter v. State, 230 Md. 535, 187 A. 2d 870; Rule 522 d 2.
Judgments and sentences affirmed.  

64 of 138 DOCUMENTS 

EDWARDS v. WARDEN OF THE MARYLAND PENITENTIARY 

App. No. 122, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 646; 210 A.2d 526; 1965 Md. LEXIS 705 

May 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  
Richard Edwards, Jr., instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.  

DISPOSITION:
Application denied.  

HEADNOTES:

Searches and Seizures -- Where Police Saw Gun Fall From Applicant's Automobile And Then Arrested Him, Seizure Of The Gun As Evidence Was Lawful Since It Was Made Pursuant To An Arrest For Violation (Carrying A Pistol In A Vehicle) Of Baltimore City Code (1950), Art. 24, Sec. 48.  

SYLLABUS:

Richard Edwards, Jr., instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.  

JUDGES:
Prescott, C. J., and Hammond, Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*646]   [**526]  This is the third application of Richard Edwards, Jr., for leave to appeal from an order denying him post conviction relief.  The applicant, who was charged in the Criminal Court of Baltimore with armed robberies in six indictments, pled guilty to four of the charges, was found guilty of one, and the State stetted the sixth.  The first application was denied in Edwards v. Warden, 221 Md. 575. On the second application, in which it was [***2]  contended for the first time that a gun found in his automobile was seized as a result of an illegal search, leave to appeal was granted and the application was remanded in Edwards v. Warden, 232 Md. 667,  [**527]  for the purpose of determining the legality of the seizure.

 [*647]  On remand, the findings of fact made by the hearing judge disclose that the applicant, who failed to yield the right of way to a police car at an intersection, was stopped by police who were patrolling the area in search of suspects in connection with a series of armed robberies in the neighborhood; that while the police were questioning the applicant, they saw a gun fall from the automobile the applicant had been operating; and that the applicant was then placed under arrest and the gun was seized.
On these facts, the hearing judge found that the applicant, by failing to yield the right of way, had committed a misdemeanor in the presence of the arresting officers, and concluded on the authority of Braxton v. State, 234 Md. 1, that the arrest as well as the subsequent seizure of the gun were lawful, and distinguished Sellars v. State, 237 Md. 58, on the ground that the officers, having [***3]  witnessed the traffic violation and having seen the gun fall from the automobile, were justified in making the arrest.
In Braxton, the arrest, which was made before the police saw the evidence subsequently seized, was held to be lawful because it was made for a traffic violation committed in the presence of the arresting officers.  In Sellars, the arrest, instead of having been made for the traffic violation, was made without probable cause after the evidence seized had been seen by the police.  Here, however, although the arrest was not made until after the gun had fallen from the automobile in the presence of the arresting officers, the seizure of the gun as evidence was lawful since it was made pursuant to an arrest for a violation (carrying a pistol in a vehicle) of §  48 of Art. 24 of the Baltimore City Code of 1950.  See Jenkins v. State, 215 Md. 70. Cf. Brookhart v. State, 238 Md. 625.
Application denied.  

65 of 138 DOCUMENTS 

APPLEGARTH v. APPLEGARTH 

No. 258, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 92; 210 A.2d 362; 1965 Md. LEXIS 524 

May 27, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Motion ne recipiatur denied; that part of the decree granting the wife a divorce, and reserving the right to grant her alimony in the future, is reversed.  The remainder of the decree is affirmed.  Appellant to pay the costs.  

HEADNOTES:

Divorce -- Constructive Desertion -- Single Act Of Violence Must Indicate Intent To Do Serious Bodily Harm -- Act Of Violence In This Case Held Not Sufficient.  In a constructive desertion case, a single act of violence, in order to constitute cruelty of treatment, "must indicate an intention to do serious bodily harm, or be of such a nature as to threaten serious danger in the future." In the instant divorce case it was held that neither of those elements was present and that the act of violence complained of by the wife did not measure up to what the law requires as constituting a justification for the wife's living apart from her husband.
Divorce -- Abandonment And Desertion -- Moving Party Must Prove Intent To Desert -- Evidence Held Not Sufficient Here.  In the instant case the appellee sought an absolute divorce from her husband on the ground that he abandoned and deserted [***2]  her when he went to Florida.  However, the Court thought that it was clear from the evidence that it was the wife, and not the husband, who desired a divorce, and that he consistently opposed such action.  On the whole, the evidence showed that the husband tried many times to reconcile, but that the wife desired a divorce and wanted him to keep away from her.  The Court stated that a moving party in a divorce action charging desertion must prove, inter alia, that the offending party had the intention to desert, i.e., the intention that the marriage relation shall no longer exist.  It was held that here, the wife, as complainant, did not sustain that burden of proof and thus the Chancellor was wrong when he granted the wife an absolute divorce and reserved the right to award alimony to her in the future.  The Chancellor could not fairly conclude, from the evidence offered, that the husband ever had the requisite intent to end the marital relation.  And, the Court felt that the testimony of the witnesses called by the wife to corroborate her testimony as to the ending of cohabitation and intention on the part of the husband to desert fell short of what was required.
Appeal [***3]  -- Motion Ne Recipiatur -- Technical Failure To Comply With Maryland Rules Held Not Prejudicial In This Case.  In the instant case the appellee filed a motion ne recipiatur in which she contended that the Court should not receive the appellant's brief and record extract because it did not comply with the Maryland Rules. However, the Court stated that although there was a technical failure to comply with some of the rules, it denied the motion since there appeared to have been no real prejudice to the appellee.  It was pointed out, that in so holding, the Court did not mean to imply that the Rules were to be relaxed, the requirements of which are necessary for the proper and expeditious handling of appeals.  But, in this case the impecunious appellant had the briefs reproduced by a friend to save costs, and the Court's review of the case was not unduly impeded.  

SYLLABUS:

Action by Harriet S. Applegarth against her husband, Harold G. Applegarth, for an absolute divorce and other relief.  From the decree of the lower court granting the wife the divorce and other and further relief, the husband appeals.  

COUNSEL:
Ronald A. Willoner for appellant.
John F. King, with whom were [***4]  Arthur K. Crocker and Anderson, Coe & King on the brief, for appellee.  

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

OPINIONBY:
SYBERT 

OPINION:

 [*94]   [**363]  The Chancellor granted Harriet S. Applegarth an absolute divorce on the ground of abandonment, and her husband, Harold G. Applegarth, appeals, claiming that the evidence did not establish abandonment; that there was a lack of corroboration of the wife's testimony; and that the evidence shows a bona fide effort on his part to reconcile.
The parties were married in 1949 and the record reveals no real marital difficulties until 1961.  They purchased and moved into a house on Bolton Street in Baltimore in 1957.  Having no children of their own, they adopted a boy and a girl, now ten and five years of age, respectively.  They apparently lived in comfortable circumstances, and Mrs. Applegarth had a housemaid.  Mr. Applegarth, an attorney, was connected with two savings and loan associations which encountered financial difficulties in 1961 and were placed in receivership in  [**364]  January 1962.  In July 1962, Mr. Applegarth was convicted by a federal [***5]  court of mail fraud in connection with the associations, was sentenced to a federal prison in November 1962, and was released on parole in September 1963.
The marital discord between the parties appears to have commenced when the difficulties of the building associations began.  At that time most of the husband's income ceased, and, according to him, he borrowed several thousands of dollars from his father to resist the receivership actions and to defend the criminal charges against him.  The evidence indicates that both parties were upset and "edgy" as a result of the situation.
Mrs. Applegarth testified that sometime around Christmas, 1961, she and her husband had an argument during which she upbraided him "at some length" and "perhaps excitedly" about his dishonest friends in the savings and loan business and which ended with his throwing her to the floor and kicking her; that she ran out of the house, breaking the glass door with her hands, but returned at once.  Her husband went across the street to a neighbor's house to get assistance for her cut hands.  The neighbor, Mrs. Ward, then came over to the Applegarth home to render aid.  The wife stated that earlier in the evening [***6]  another neighbor, Mr. Greenhood, had been with her but that he 

 [*95]  was not present at the time of the argument since he had left when her husband came home, though he returned when Mrs. Ward came over.
The husband's version of the occurrence differed in important respects from that of his wife.  According to him, he came home from work at 11:00 P.M., tired and nervous, to find several neighbors visiting his wife, and they all had some drinks.  The visitors soon left, except Mr. Greenhood, whom, the husband stated, he found in his home too frequently.  When the wife began an argument about his connection with the savings association business, the husband said he ordered Greenhood out of the house and his wife upstairs.  Greenhood left, but the wife continued the "tirade" and became hysterical, whereupon he slapped her several times to bring her out of it.  She fell to the floor and resisted his efforts to help her up, he said, but then she suddenly jumped up and ran out the door, pushing her hands through the glass and cutting them.  She then came back in and ran upstairs, after which he went across the street and brought Mrs. Ward over to aid his wife.  Greenhood also came [***7]  back in the house.  The husband denied that he had thrown his wife to the floor or kicked her.
Mrs. Applegarth made no claim that her husband had been physically violent toward her, other than the episode mentioned.
The desertion of her by her husband occurred, Mrs. Applegarth testified, on February 11, 1962, when he packed some suitcases and left the house after merely telling her that he was going to Florida without stating any reason.  She said the only reason she could give as to why he left was because of her poor health.  She testified that she was suffering from a skin disorder and a nervous condition which she thought was caused by worry over her husband's honesty and that she had seen a dermatologist and a psychiatrist. She stated that Mr. Applegarth left her little money and that her mother had to buy food for her within a few days of his departure.  According to the wife, the parties never lived together as husband and wife after February 1962, though she stated that on one occasion he returned to Bolton Street, broke into the house, and slept in their son's room.  She admitted that she had changed the lock on the 

 [*96]  door, but could not remember whether it was [***8]  before or after this occurrence.  At first she testified that she didn't know where in Florida her husband had gone, but later she admitted that she had received several phone calls from him from Florida and that their son had visited him for several days there.  And when the husband introduced in evidence certain letters which he claimed she had sent to him in Florida she admitted the letters were from her.  She further testified that because her husband left her so little money she could not continue  [**365]  to keep the Bolton Street house and therefore had moved on June 1, 1962, to her parents' home in Easton, Maryland, though the record shows she retained the maid until she moved, and she admitted she had three tenants in the house until she left.  The house was eventually sold under a mortgage though the record does not show when.  She admitted that in September 1962 she wrote to her attorney asking him to get a court order so that her husband would stop "annoying" her.  Her reason for doing this was, according to her testimony, because she was afraid of him and because "he drives me mentally out of my mind".
Mrs. Applegarth stated that she never received any money from her [***9]  husband after he left (except $ 15 for the expense of traveling from Easton to Baltimore to see a psychiatrist) and that he never asked her to come to live with him.  She did testify, however, that she visited a psychiatrist at her husband's request after he was released from prison and that once both she and her husband visited the psychiatrist together, but she said this was not because her husband wanted a reconciliation but because he wanted to annoy her.  She couldn't remember whether or not he told the psychiatrist that he wanted her to come back and live with him.  She said that she and her husband could never live together any longer; that life with him ruined her health and that her skin problem had disappeared since his absence.
The only witness called by the wife was the neighbor, Mrs. Ward, who corroborated Mrs. Applegarth's testimony in regard to the altercation around Christmas 1961 insofar as she had knowledge thereof after she arrived on the scene to calm the wife and clean her cut hands.  She did testify that after February 1962 she "did not think" she saw Mr. Applegarth 

 [*97]  around his home, though she was a frequent visitor, but did not know definitely whether [***10]  he was ever there.  She further stated that Mrs. Applegarth told her that her husband was in Florida.  The other significant fact she testified to was that in June 1962 Mrs. Applegarth moved out.
The husband testified that he had no intention of ending the marriage when he left in February 1962, but that he went to Florida on a business trip and that he so told his wife when he left.  He admitted that he did not give her an address, but this was because he did not know where he would be staying, and he said he gave her the telephone number of an attorney in Miami, where he could be reached.  He stated that he returned to his Baltimore home after a week or so where he slept with his wife for a week though there were no marital relations due to her refusal.  (One of the wife's subsequent letters to him in Florida refers to his week's visit to Baltimore.) He testified that he made several trips back and forth between Florida and Baltimore, most of which were evidenced by airline tickets.  He stated that the first mention of separation was made by his wife by telephone to him when he was in Florida in March 1962, a few days after he was indicted for mail fraud.  According to him, she [***11]  was crying and hysterical and said she could not take it any longer and wanted a divorce. He further stated that he returned to Baltimore within two weeks but that his wife would not let him in the house, though she did allow him to take her to dinner, at which time she "asked for a divorce".  He said he tried to persuade her to make a "go" of their marriage. On the next day he was able to see the children.
Mr. Applegarth stated that he was so emotionally disturbed during this time because of his marital troubles and his problems with the federal government that he went to a psychiatrist and asked his wife to do the same but she refused.  He said she told him her mother was coming to Baltimore for Memorial Day and asked him not to come around.  He testified that his wife left the Bolton Street house without telling him though he had been there on the morning of the day on which she moved.  According to him, he visited the appellee and the children several times in Easton after  [**366]  he learned where they were, and made 

 [*98]  attempts to reconcile though he continued to live in the Bolton Street house until November 1962 when he went to prison.
The husband testified that [***12]  from January to April 1962 he had income of $ 236 per month from a previous business deal and that he gave all of this to his wife.  He also said that before he went to Florida in February 1962 he gave her $ 500 from the money he had borrowed from his father, and that when he came back about a week later he thought he gave her $ 100 or $ 150.  He further stated that later, while still in Florida, he sent money to her through a Mr. Schulman.  Mr. Schulman took the stand and corroborated this, stating he thought the amount was $ 500.  In addition, the wife sold an automobile titled in both names and forwarded the check for the $ 500 purchase price to her husband in Florida.  He endorsed the check and returned it to her.  Her letter forwarding the check and requesting his endorsement is in the record.
In addition to his attempts to effect a reconciliation before he went to prison, the husband described several such attempts after his release, including a joint visit with his wife to a psychiatrist during which she said she would not consider any kind of reconciliation.
If the wife's version of what occurred during the altercation between the parties around Christmas, 1961, be accepted,  [***13]  the single act of violence complained of by her does not measure up to what the law of this State requires as constituting a justification for the wife's living apart from her husband.  As was pointed out in Harrison v. Harrison, 223 Md. 422, 164 A. 2d 901 (1960), a constructive desertion case, a single act of violence, in order to constitute cruelty of treatment, "must indicate an intention to do serious bodily harm, or be of such a nature as to threaten serious danger in the future." (p. 426 of 223 Md.) Neither of those elements was present here.
But the case before us is not one in which the wife seeks to justify her departure from the marital abode by claiming constructive desertion by reason of cruelty on the part of the husband.  Rather, the wife here sought an absolute divorce on the ground that her husband abandoned and deserted her in February 1962 when he went to Florida.  The Chancellor, in granting a divorce to the wife, found as facts that after the husband's trip to Florida in February 1962, "there had been several discussions 

 [*99]  after the separation about a divorce, the divorce being requested by Mrs. Applegarth, that he [the husband] refused and still [***14]  refuses to consider any such action." The Chancellor made no finding that the husband, when he went to Florida or thereafter, had an intention to terminate the marriage relation, but he did conclude that the husband's efforts for reconciliation were not bona fide because he had not rented a home or apartment and asked his wife and children to come and live with him, and offered to support them.
The Chancellor's findings do not, in our view, support the award of a divorce to the wife.  We think it is clear from the evidence, as the Chancellor found, that it was the wife, and not the husband, who desired a divorce, and that he consistently opposed such action.  This record indicates, we believe, that the wife became embarrassed and disturbed by the failure of her husband's savings and loan associations and the attendant publicity and failure of income.  It would appear that she formed a desire to end the marriage, which ripened to intention to do so when her husband was indicted on criminal charges.  She articulated this intention in the telephone conversation with her husband in March 1962, which is the first time the record shows that either party mentioned divorce. Apparently [***15]  the determination to charge the husband with abandonment as of February 1962, when he left for Florida, was an afterthought, as her letters to him there did not indicate that she thought he had deserted her, and did not so charge.  On the  [**367]  whole, the evidence shows that the husband tried many times to reconcile, but that the wife desired a divorce and wanted him to keep away from her.
We have often said that the moving party in a divorce action charging desertion must prove, inter alia, that the offending party had the intention to desert, i.e., the intention that the marriage relation shall no longer exist.  Zulauf v. Zulauf, 218 Md. 99, 145 A. 2d 414 (1958), and cases cited; Smoot v. Smoot, 200 Md. 216, 88 A. 2d 465 (1952). Here the wife, as complainant, did not sustain the burden of proof.  The Chancellor could not fairly conclude, from the evidence offered, that the husband ever had the requisite intent to end the marital relation.  And, in any event, the testimony of the witness called by the wife to corroborate her testimony as to the ending of 

 [*100]  cohabitation and intention on the part of the husband to desert fell far short of what is required.  [***16]  Taylor v. Taylor, 238 Md. 312, 208 A. 2d 685 (1965); Comulada v. Comulada, 234 Md. 287, 199 A. 2d 197 (1964).
In view of our decision that the husband was not the offending party, we do not need to consider the bona fides of the husband's efforts to reconcile.
We hold that the Chancellor was wrong when he granted the wife an absolute divorce and reserved the right to award alimony to her in the future.  However, the decree also awarded custody of the children to the wife, with certain conditions, and required the husband to pay certain sums for their support and for a counsel fee, and the costs, and the husband did not appeal from these provisions.  Hence the decree will be reversed in part and affirmed in part.
The appellee filed a motion ne recipiatur in which she contends that this Court should not receive the appellant's brief and record extract because it does not comply with the Maryland Rules. The complaint is that the brief and record extract are slightly undersized, that the extract fails to contain a table of contents and the brief a table of citations alphabetically arranged, and that "in many instances" authorities and testimony are inaccurately quoted.  [***17]  Although there seems to be a technical failure to comply with some of the rules we shall deny the motion since there appears to have been no real prejudice to the appellee.  Burrell v. Frisby, 212 Md. 181, 129 A. 2d 75 (1957). See also Irvine v. Montgomery County, 239 Md. 113, 210 A. 2d 359 (1965). In so holding, we do not mean to imply that we intend to relax the Rules, the requirements of which are necessary for the proper and expeditious handling of appeals.  However, in this case we were informed that the impecunious appellant had the briefs reproduced by a friend to save costs, and our review of the case was not unduly impeded.
Motion ne recipiatur denied; that part of the decree granting the wife a divorce, and reserving the right to grant her alimony in the future, is reversed.  The remainder of the decree is affirmed.  Appellant to pay the costs.  

66 of 138 DOCUMENTS 

GILLIAM v. MOOG INDUSTRIES, INC.  

No. 300, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 107; 210 A.2d 390; 1965 Md. LEXIS 526 

May 27, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed, with costs, without prejudice to further action by the appellant, if he so elects, against the appellee in accordance with the opinion herein.  

HEADNOTES:

Jurisdiction -- Foreign Corporation -- Not Subject To Suit In Maryland Under Code (1957), Art. 23, Sec. 92(a) -- Activities Did Not Amount To Doing Business -- Court Did Not Decide Effect Or Applicability Of Code (1964 Supp.), Art. 75, Secs. 94 To 100.  In the instant case, this Court upheld the lower court finding that a corporation was not subject to suit in Maryland under Code (1957), Art. 23, sec. 92 (a), where the activities of the corporation and its agents in this State added up to no more than solicitation of business, which did not amount in law to doing business or otherwise subject the corporation to suit in Maryland.  The corporation was a Missouri corporation engaged in the business of manufacturing automobile replacement parts which it sold to independent warehouse distributors (two in Maryland) who in turn sold them through the efforts of their own sales forces to jobbers. The corporation had no place of business, no office, no [***2]  property of any kind, no bank account, and no telephone listing in Maryland.  It held no corporate meeting and paid no taxes in Maryland.  It did not advertise locally in the State.  The district manager in this area promoted the sale of products by calling on warehouse distributors and jobbers and the customers of jobbers. Neither the manager or his assistant had any authority to accept orders in Maryland, this, for credit reasons, being done only at the head office in St. Louis.  Although appellant argued that even if the corporation was not doing business in Maryland, it was subject to suit under the new subtitle, Code (1964 Supp.), Art. 75, secs. 94 to 100, the purpose of which is to give the courts of the State personal jurisdiction over all out of state persons and corporations which constitutionally could be reached as having sufficient Maryland contacts, the question of the applicability and effect of the new statute was not properly presented to and decided by the trial court, and, therefore, was not before this Court for review.  The judgment appealed from was affirmed without prejudice to the appellant to file a new suit under the provisions of the new statute.
Appeal [***3]  -- Upon Entry Of Appeal, Trial Court Was Without Power To Hear Motion To Set Aside Order Appealed From, Movant Not Having Elected To Dismiss Appeal And Rely On Motion -- Question Raised By Motion Was Not Properly Presented To And Decided By Trial Court, Hence It Was Not Before This Court For Review.  

SYLLABUS:

Action by Walter Gilliam against Moog Industries, Inc., alleging breach of contract of employment.  Upon motion by defendant, the writ of summons was quashed, and from the judgment entered for costs in favor of defendant, plaintiff appeals.  

COUNSEL:
Hyman Ginsberg, with whom were Ginsberg & Ginsberg on the brief, for appellant.
Lawrence F. Rodowsky, with whom were Frank, Bernstein, Gutberlet & Conaway on the brief, for appellee.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*108]   [**391]  The appellant Gilliam was employed by the appellee, Moog Industries, Inc., under a written contract executed in St. Louis in 1962 as district manager of an area that included Delaware, southern New Jersey, and parts of Pennsylvania, Virginia and Maryland.  His contract was terminated [***4]  and his services dispensed with, he claims wrongly, on July 31, 1963.  Four months later Gilliam filed suit against Moog in the Superior Court of Baltimore City for breach of contract, justifying jurisdictional venue by the claim that Moog was a foreign corporation doing 

 [*109]  business in Maryland and was, therefore, subject to suit in Maryland under Code (1957), Art. 23, Sec. 92(a).  Service was made upon the State Department of Assessments and Taxation as the statutory agent of a foreign corporation doing business in the State without a resident agent, under Code (1957), Art. 23, Sec. 97.  Moog moved to quash the writ of summons on the grounds that it did no business in Maryland, the contract sued on was not made in this State and Gilliam at the time of the execution of the contract, was not a resident of Maryland.  Judge Carter, on July 9, 1964, quashed the writ, holding that the activities of Moog and its agents in Maryland, including activities designed to stimulate interest in its products and facilitate the placing of orders for them, added up to no more than solicitation of business which did not amount in law to doing business or otherwise subject Moog to suit in Maryland.  [***5]  We think Judge Carter took the correct view of Moog's activities and was right in not finding it to be subject to suit here.
Moog is a Missouri corporation engaged in the business of manufacturing thousands of different automobile replacement parts which it sells to independent warehouse distributors (two in Maryland) who in turn sell them through the efforts of their own sales forces to jobbers. The jobbers sell to the installers, such as service stations, repair shops and fleet operators.  Moog has no place of business, no office, no property of any kind, no bank account, and no telephone listing in Maryland.  It holds no corporate meetings and pays no taxes in Maryland.  Moog does not advertise locally in the State, using only trade publications aimed at the automotive industry throughout the country.
Gilliam, as district manager of Moog in this area, promoted the sale of its products by calling on warehouse distributors and jobbers and the customers of jobbers. He conducted "clinics" for installers to sell the idea of the superiority of Moog's output, particularly new products.  He had an assistant or "missionary man," whose duties were similar.  Neither the manager nor the [***6]  missionary man had any authority to accept orders in Maryland, this, for credit reasons, being done only at the head office in St. Louis.
The present case is a fact brother of Feldman v. Thew Shovel 

 [*110]  Co., 214 Md. 387; G. E. M., Inc. v. Plough, Inc., 228 Md. 484; and Chesapeake Supply & Equipment Co. v. Manitowoc, 232 Md. 555, in each of which the defendant corporation was held not to be doing business in Maryland, and does not have the additional features which in Thomas v. Hudson Sales Corp., 204 Md. 450; and White v. Caterpillar Tractor, 235 Md. 368, made the holdings go the other way.
The appellant argued earnestly to us, in the brief and orally, that even if Moog was  [**392]  not "doing business" in Maryland within the judicially declared meaning of that phrase, it was subject to suit here under the provisions of Ch. 95 of the Laws of 1964, effective June 1, 1964, which added Secs. 94 to 100, inclusive, to Art. 75 of the Code under the new sub-title "Bases of Personal Jurisdiction Over Persons Outside This State" to provide (Sec. 96(a)) that a court may exercise personal jurisdiction over a person or corporation who acts, directly or by an agent,  [***7]  as to a cause of action arising from the person's:

"(1) transacting any business in this State;
(2) contracting to supply services in this State;
(3) causing tortious injury in this State by an act or omission in this State;
(4) causing tortious injury in this State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in this State or derives substantial revenue from food or services used or consumed in this State;
(5) having an interest in, using, or possessing real property in this State; or
(6) contracting to insure any person, property, or risk located within this State at the time of contracting."

It further provides (Sec. 97) that when the exercise of personal jurisdiction is authorized by "this sub-title" service may be made outside the State, and that (Sec. 100) service may be made, in addition to any other method allowed by law, "*** in accordance with Chapter 100 of the Maryland Rules of Procedure 

 [*111]  or in such other manner as may hereafter be established by rule of the Court of Appeals of Maryland."
It seems clear that the purpose of the Legislature in enacting [***8]  these new provisions was to give the courts of the State personal jurisdiction over all out of state persons and corporations which constitutionally could be reached as having had sufficient Maryland contacts, under the jurisdictional yardstick established by the Supreme Court in cases such as International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95; McGee v. International Life Ins. Co., 355 U.S. 220, 2 L. Ed. 2d 223; and Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d 1283.
It is to be noted first that service in the present case was upon the State Department of Assessments and Taxation, as is authorized by Code (1957), Art. 23, Secs. 96(d) and 97, in suits against foreign corporations doing business in the State which do not have a resident agent, and that no attempt was made to effect service pursuant to Chapter 100 of the Maryland Rules (no other rule on the subject has been promulgated by this Court) and, second, that the cause of action sued on had accrued before the effective date of Ch. 95 of the Laws of 1964.
The cases and the writers have differed as to whether statutes similar to those enacted by Ch. 95 of the Laws of 1964, which have enlarged the bases [***9]  for personal jurisdiction over out of state individuals and corporations, are to be given retrospective or prospective operation, both on the question of the effectiveness of service of process prior to the effective date of such statutes and on the merits when the cause of action accrued before the effective date. See Note, Retroactive Expansion of State Court Jurisdiction over Persons, 63 Col. L. Rev. 1105; and compare Restatement, Second, Conflict of Laws, Secs. 84 Comment e, 84a Comment d, 85 Comment d (Tentative Draft No. 3, 1956); and McGee v. International Life Ins. Co., supra. See Simonson v. International Bank,  [**393]  225 N. Y. S. 2d 392; affirmed, 200 N. E. 2d 427; Nevins v. Revlon, Inc. (Super. Ct. Conn.), 182 A. 2d 634; Focht v. American Casualty Company (Ct. App. Ga.), 118 S. E. 2d 737; Johnson v. Baldwin (S. C.), 53 S. E. 2d 785.
We do not reach the questions of the applicability and effect 

 [*112]  of the 1964 statute.  The declaration was filed in November 1963.  The motion to quash the writ of summons was filed in December 1963.  Testimony was taken on June 5, 1964, and briefs then were submitted.  Judge Carter ordered the writ [***10]  quashed on July 9.  The parties did not rely on nor refer to Ch. 95 of the Laws of 1964 until July 29, when the question of its applicability and effect was raised for the first time, the appellant, the plaintiff below, then moving that the court exercise its revisory power and on the basis of the 1964 Act set aside the quashing of the writ of summons. On August 5 the plaintiff below filed his notice of appeal to this Court.  On August 13 Judge Carter overruled the motion to set aside the quashing of the writ of summons. We think he had no power to do so since, before he acted, the plaintiff's notice of appeal had been filed, and the movant had not elected to dismiss the appeal and rely on the motion.  Visnich v. Washington Suburban Sanitary Commission, 226 Md. 589. There we said (p. 590):

"We think the court lacked authority to entertain the motion under the circumstances.
"In Avirett v. State, 76 Md. 510, it was stated that if upon the entry of an appeal a trial court is without authority to hear a motion to strike out a judgment, then, instead of the appeal having been waived or abandoned by a hearing of the motion, the motion was prematurely and improvidently [***11]  heard.  In other cases, such as United Rys. Co. v. Corbin, 109 Md. 52, and Giles v. DiRobbio, 186 Md. 258, it was held that a trial court lacked authority to hear a motion to strike out a judgment if an appeal had been entered and was still pending when the motion came on for hearing.  And in the Tiller case, supra [205 Md. 14] in which the appeal had been dismissed before the motion to strike out the judgment came on for hearing, though stating that the mere filing of an appeal did not strip the trial court of its revisory power in a proper case, we confirmed our prior holdings to the effect that the trial court lacks authority to entertain a motion to revise a judgment if an appeal is pending, and further 

 [*113]  stated that unless the appeal is dismissed when the motion to revise the judgment appealed from comes on for hearing, the appellant must elect between his motion and his appeal."

See also Tiller v. Elfenbein, 205 Md. 14.
Whether Gilliam had a cause of action enforceable in Maryland under Ch. 95 of the Laws of 1964 was a question not properly presented to and decided by the trial court and is not before us for review.  Md. Rule 885.  The [***12]  judgment appealed from will be affirmed without prejudice to the appellant to file a new suit that claims under the provisions of Code (1964 Cum. Supp.), Art. 75, Secs. 94 to 100, inclusive.  We neither express nor intimate an opinion as to whether those sections will or will not be of aid and comfort to the appellant in such a suit.
Judgment affirmed, with costs, without prejudice to further action by the appellant, if he so elects, against the appellee in accordance with the opinion herein.  

67 of 138 DOCUMENTS 

IRVINE et ux. v. MONTGOMERY COUNTY, MARYLAND 

No. 310, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 113; 210 A.2d 359; 1965 Md. LEXIS 527 

May 27, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Montgomery County; Pugh, J.  

DISPOSITION:
Order affirmed; costs to be paid by the appellants.  

HEADNOTES:

Pleading -- Defense Of Governmental Immunity -- Decision By Trial Court Under Maryland Rule 502, Rather Than Rule 323 -- Purpose Of Rule 323 Held Accomplished Under Circumstances Here.  In the present case Montgomery County, before filing any other pleading, filed a motion under Maryland Rule 323 raising the defense of governmental immunity. The trial court, upon its own motion, proceeded to decide the question of law involved under Rule 502.  All of the pleadings were before the trial court, no evidence was taken and the question of law was decided upon the pleadings.  The purpose of Rule 323 is to have a legal question, such as the one in the case at bar, decided before trial of the case upon its merits, and here this purpose was accomplished. Compliance with procedural regulations is essential to the fair and efficient administration of justice, but it is the substance of compliance and the fair treatment of the parties which are determinative.  Here those requisites were met.
Municipal Corporations -- No Liability For Negligence Or Nonfeasance  [***2]   In Exercise Of Essentially Governmental Functions -- Liability In Failing To Prevent Public Nuisance.  There can be no recovery in Maryland against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of essentially governmental functions, but the political subdivision is liable if it fails to prevent a public nuisance with respect to a public right of way or other property which it owns or maintains.
Municipal Corporations -- Actionable Wrong For Private Nuisance Under Certain Circumstances -- Municipality Issuing Construction Permit Is Exercising Only Its Governmental Authority And Is Immune From Suit -- No Proprietary Interest Found In Present Case Where Montgomery County Had Approved Private Subdivision Plan.  An actionable wrong may arise under some circumstances if a private nuisance is created as a result of grading and other building activities which accelerate the natural flow of water and damage an adjoining property.  But a municipality is exercising only its governmental authority when it issues permits for construction and is immune from suit against it.  Even though the permits are for street construction, the municipal [***3]  corporation is immune from liability for error of judgment, unaffected by negligence.  In the instant case, where Montgomery County had approved a private subdivision plan, there was no allegation that it acted negligently in doing so, or that the plan, as to streets, did not conform to the specifications of the county code.  The appellants were seeking injunctive relief for alleged damages to their property through continuous diversion of surface waters and the denial of the use of a public road by virtue of certain road construction activities undertaken pursuant to the subdivision plan, but the Court held that it was not shown that any proprietary interest of the County existed at the time pertinent here.  

SYLLABUS:

Bill of complaint by H. Winfree Irvine and Helen Irvine against Montgomery County, among others, for injunctive relief for alleged damages to their property through continuous diversion of surface waters and the denial of the use of a public road.  From an order dismissing the bill as to Montgomery County, the complainants appeal.  

COUNSEL:
David L. Cahoon for the appellants.
Submitted on brief by Robert G. Tobin, Jr., County Attorney for Montgomery County, and  [***4]  Douglas H. Moore, Jr., Deputy County Attorney, for the appellee.  

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

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*115]   [**360]  The appellants, seeking injunctive relief for alleged damages to their property through continuous diversion of surface waters and denial of use of a public road, appeal the dismissal of their bill of complaint as to Montgomery County.  The lower court held, as a matter of law, on the pleadings, that the County is immune from suit for the acts alleged against it, because it was exercising a governmental function.
The bill of complaint alleged that the plaintiffs are the owners of a tract of land in Montgomery County of some five and three quarters acres, known as "Walkers Mill Tract." The tract has been served by a public road, "Walkers Mill Road", for many years.  The bill was filed against Francis L. Harding and Lucille M. Harding and Old Farm Real Estate Corporation, the owners of certain land to the east of the appellants' tract, who had adopted a plan of subdivision for their land; Mr. and Mrs. William I. Thomson, who, it is alleged, participated [***5]  in the acts complained of; and the County.  The essential facts alleged 

 [*116]  against the County are that it approved the plat of subdivision as to road and street grades; that the excavation, grading and paving of the streets was carried out pursuant to the requirements of and under the supervision of its Department of Public Works; that it has permitted the other defendants to regrade, fill and completely obstruct a public road; that as a consequence the appellants have been denied access to their lands; and that the excavation, grading and paving of streets has unlawfully diverted surface water to the continuing injury of the appellants.
The Old Farm Real Estate Corporation, the Hardings and the Thomsons demurred to the bill and the Thomsons moved for summary judgment. The County filed a motion raising the preliminary objection of governmental immunity under Maryland Rule 323, and also filed an answer to the bill.  The court below, after argument, sustained the demurrer of Old Farm Real Estate Corporation, denied the motions of the Thomsons for summary judgment, overruled the demurrers of the Thomsons and the Hardings, and dismissed the bill against the County.  In the order [***6]  of dismissal, Judge Pugh stated he was satisfied by the record of the proceedings that the County was exercising a governmental function and was therefore immune from suit, and that he was of the opinion the matter should be decided under Maryland Rule 502 rather than Rule 323.
A preliminary question raised by the appellants is whether the court erred in proceeding under Rule 502.  That rule reads in part as follows:
"a. Question of Law -- Stay -- Appeal.
At any stage of the action, the court may, on application of any party or of its own motion if it shall appear that there is a question of law which it would be convenient to have decided before going further, direct such question to be raised for the court's decision in such manner as the Court may deem expedient."

Rule 323 b and c provides that the defense of governmental immunity shall be raised  [**361]  by motion before any pleading on behalf of the party making the motion is filed.  This the County 

 [*117]  did.  The court, on its own motion, proceeded to decide the question of law involved under Rule 502, because it appeared to the judge that it would be convenient to have the question decided under that [***7]  Rule.  By so doing, the court had all the pleadings before it.  No evidence was taken; the question of law was decided on the pleadings.  The appellants contend that, as a matter of law, the trial court was in error in deciding that the County was immune for the acts alleged against it.  That question is before us.  The purpose of Rule 323 is to have a legal question, such as this, decided before trial of the action on its merits, and this purpose has been accomplished. Compliance with procedural regulations is essential to the fair and efficient administration of justice, but it is the substance of compliance and the fair treatment of the parties, which are determinative.  See Board of County Commissioners for Prince George's County v. Kines, 239 Md. 119, 210 A. 2d 367. Here, those requisites have been met.
The case turns on which of the two legal principles pertaining to governmental immunity is applicable.  There can be no recovery in Maryland against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character, but the political subdivision is liable if it fails to prevent a public nuisance [***8]  in respect of a public right of way or other property which it owns or maintains.  Fowler v. Bd. of Co. Comm'rs, 230 Md. 504, 507, 187 A. 2d 856 (1963) and cases therein cited.
The appellants' bill of complaint alleges that the County approved the subdivision plat submitted by the private developers pursuant to its Subdivision Regulations and issued building and road construction permits within the platted subdivision.  These actions were taken under Laws of Montgomery County, 1962 p. 51 et seq.  By taking the actions, it is alleged, the County became a full participant with the other defendants in the establishment of the conditions creating the nuisance complained of and is committed to maintaining these conditions in the future.
An actionable wrong may arise under some circumstances if a private nuisance is created as a result of grading and other building activities which accelerate the natural flow of water and 

 [*118]  damage an adjoining property.  Battisto v. Perkins, 210 Md. 542, 124 A. 2d 288 (1956). However, in issuing permits for construction, a municipality is only exercising its governmental authority and is immune from action against it.  Lipsitz v. Parr [***9]  , 164 Md. 222, 227, 164 Atl. 743 (1933); 18 McQuillin, Municipal Corp., 3d ed. §  53.37; 25 Am. Jur. Highways, § §  356 and 592.  Even though the permits were for street construction, the municipal corporation is immune from liability for error of judgment, unaffected by negligence.  Cumberland v. Turney, 177 Md. 297, 314, 9 A. 2d 561 (1939). Here, the bill of complaint does not allege any acts of negligence on the part of the County in approving the plan of subdivision, or any failure of the plan, in respect of streets, to conform to the specifications of the county code.
The appellants contend that the County had a proprietary interest in two aspects, and is therefore liable for the creation of the alleged nuisance. They argue that the grading and filling of Walkers Mill Road, a public highway, altered the natural contours of the land and diverted the natural flow of waters therefrom, thereby damaging the appellants' property.  However, the exhibits filed with the County's answer show that, by legislative action prior to the entry of the order dismissing the bill against the County, the County Council had abandoned the portion of the road here involved as no longer necessary [***10]  or suitable for public use; one of the Councilmen stated, in connection with the passage  [**362]  of the resolution, that he felt there was a better road to serve the appellants' property.  The appellants contend, further, that the alleged nuisance relates to the maintenance of public roads which will be created pursuant to the County's approval of the subdivision plans.  But liability of a municipal corporation for default or neglect in the maintenance of roads in which it has a proprietary interest arises only in connection with highways that it has created or accepted.  Cox v. Annc Arundel County, 181 Md. 428, 431-433, 31 A. 2d 179 (1943). Here, it is not alleged that the contemplated new roads have even been completed.  No proprietary interest of the County existed at the time the order was signed.
The appellants, in support of their contentions that the County is maintaining a private nuisance, rely upon Baltimore City v. 

 [*119]  Fairfield Imp. Co., 87 Md. 352, 39 Atl. 1081 (1898); Taylor v. M. & C. C. of Balt., 130 Md. 133, 99 Atl. 900 (1917); and Waters v. B. & O. R. R. and Mayor and Council, 120 Md. 644, 88 Atl. 47 (1913). In Fairfield, it was held [***11]  that the use of a property of the city for the maintenance of a leper was a private nuisance, and not the authorized establishment of a hospital.  Taylor held that the legislative authorization to the city for the establishment and maintenance of a sewerage disposal filtration plant did not permit it to discharge debris and sewage upon adjoining properties.  In Walters, the city and the railroad, by changing the grade of a street, had barred ingress and egress to an adjoining building, except by means of a ladder from the second floor window, and had shut off the light and air from the first floor, making it uninhabitable; it was held that this action amounted to a taking of property without compensation.  None of these cases is apposite to the situation here presented.
The order of the court below in dismissing the bill as against the County was in accord with the applicable principles of governmental immunity.
Order affirmed; costs to be paid by the appellants.  

68 of 138 DOCUMENTS 

FRANCZKOWSKI v. STATE 

No. 333, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 126; 210 A.2d 504; 1965 Md. LEXIS 529; 6 A.L.R.3d 238 

May 27, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Attempt To Obtain Money By False Pretenses -- Elements Of -- Not Necessary For Potential Victim To Be Deceived Or To Part With Money Or Property.  The elements of an attempt to obtain money or other property by a false pretense, like other attempts to commit a crime, are an intent to commit it, the doing of some act towards its commission, and the failure to consummate its commission.  In the instant case it was held that it was not necessary in order to establish the requisite intent that the potential victim be deceived and part with money or property.  One may be innocent of an act but guilty of an attempt to commit it.  

SYLLABUS:

James Franczkowski was convicted of attempting to obtain money by false pretenses and from the judgment entered thereon, he appeals.  

COUNSEL:
Gerald A. Kroop for appellant.
Loring E. Hawes, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Richard O. Motsay, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

JUDGES:
 [***2]  
Prescott, C. J., and Horney, Marbury, Oppenheimer and Barnes, JJ.  Horney, J., delivered the opinion of the Court.  

OPINIONBY:
HORNEY 

OPINION:

 [*126]   [**504]  The question presented by this appeal, as to whether an attempt 

 [*127]  to obtain money or other property by a false pretense has been committed when the potential victim was not deceived and did not part with any money or property, is a novel one in this State.
About six hours after money orders and a check writer had been taken from a burglarized  [**505]  grocery store, the defendant presented a money order to the manager of a bargain store for payment.  When the manager examined the number on the money order, he suspected its genuineness and asked the defendant to sign his name on the back of it for the purpose of detaining him.  The manager then left the store -- ostensibly to get funds from his bank to cash the money order -- and returned with a policeman who arrested the defendant.
Although the defendant contends that he should not have been convicted of attempting to obtain money by false pretenses because the potential victim was not in fact deceived, the law is to the contrary.  It is true, as was said in  [***3]  Davis v. State, 229 Md. 139, 141, 182 A. 2d 49, 50 (1962), that "an essential element n1 of obtaining money by false pretenses is that the victim actually relied upon the false representation," but the cases and the text writers make it clear that a distinction is drawn between the completed crime and an attempt to commit it.  Commonwealth v. Johnson, 167 Atl. 344 (Pa. 1933); State v. Smith, 255 N. W. 826 (Minn. 1934); People v. Camodeca, 338 P. 2d 903 (Cal. 1959); Benefield v. State, 151 So. 2d 650 (Fla. 1963); 35 C.J.S., False Pretenses, §  36; 22 Am.Jur., False Pretenses, §  80.

n1 All of the elements necessary to convict one of false pretenses are set forth in Smith v. State, 237 Md. 573, as well as in Davis v. State, 229 Md. 139.

The elements of attempt to obtain money by a false pretense, like other attempts to commit a crime, are an intent to commit it, the doing of some act towards its commission, and the failure to consummate its commission.  Wiley v. State, 237 Md.  [***4]  560, 207 A. 2d 478 (1965). And it is not necessary in order to establish an intent that the potential victim was deceived and had parted with money or property.  Commonwealth v. Johnson, supra; State v. Smith, supra. As was said in Whitley v. Warden, 

 [*128]  209 Md. 629, 120 A. 2d 200 (1956), cert. den. 351 U.S. 929 (1956), one may be innocent of an act but guilty of an attempt to commit it.
Judgment affirmed.  

69 of 138 DOCUMENTS 

WOLF, Receiver, Etc. v. CRYSTAL et al.; WOLF, Receiver, Etc. v. CRYSTAL 

Nos. 241, 279, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 22; 209 A.2d 920; 1965 Md. LEXIS 516 

May 12, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Orders affirmed; appellant to pay the costs.  

HEADNOTES:

Savings and Loan Associations -- Trial Judge Warranted In Finding That Appellee With Account In Association Which Became Insolvent Was A Free Shareholder, Rather Than A Creditor In The Nature Of A Bank Depositor.  In the present case, where the appellee had an account in a savings and loan association which became insolvent, the Court held that the trial judge was warranted in holding that she was a free shareholder in the association, rather than a creditor in the nature of a bank depositor entitled to be paid before the free shareholders. Her testimony indicated that she could read and was a person of normal intelligence.  She had previously had an account with a bank, but in reaching the conclusion above, the Court pointed to the name of the savings and loan association which appeared in bold letters upon its office and upon all of the papers which the appellee had signed or received, so that it appeared unlikely that a person of average perception and understanding would have any reason for believing that he or she was dealing with a bank.  More [***2]  importantly, the Court also set out the language used in the application signed by the appellee and appearing on the passbook issued to her when she opened her account.  There being no contention that the appellee did not have the capacity to understand the instruments mentioned, and no showing of any fraud practiced upon her in connection therewith, she was bound by them.
Savings and Loan Associations -- Paid Up Free Shareholder In Insolvent Association Who Had Pledged Her Account As Security For Loan From Association Before It Was Placed In Conservatorship Held Entitled To Set-Off Account To Extent Of Loan And Interest Thereon.  Under the so-called "Maryland Rule", upon the insolvency of a savings and loan association, a borrowing member who has pledged as security for the loan shares of the association which he is in the process of purchasing by installment payments, is entitled to set-off against the amount of the loan and interest thereon, all sums paid by him as dues upon his stock and as premiums and interest upon the loan.  There is a two-fold relationship between the borrower and the association, namely, debtor-creditor and member-association, and upon the association's [***3]  insolvency, the debtor-creditor relationship becomes predominant, because it has become impossible for the association any longer to carry out its contract with its members (one facet of such impossibility being that the shares could never be issued even though eventually paid for in full).  The insolvency or dissolution of an association is equivalent to rescinding and terminating the contract between it and its members, salient features of which are the undertaking of the association to remain in business and to pay its members the fixed value of their stock in full, and these factors become most material in determining the rights of borrowers. In the present case, where only the rights of the shareholders as between themselves were involved, the Court held that the rule should be extended to allow the right of set-off to borrowers whose shares had been paid for in full.  To hold otherwise would amount to a harsh and unwarranted discrimination against such a borrower, and a recognition of the right of set-off did not violate the equitable rights of non-borrowing shareholders. However, the Court further held that the appellee in this case, who had pledged her account as [***4]  security for a loan from the association before it was placed in conservatorship, was entitled to set-off only so much of her account as was necessary to pay her note, with interest, but that she was not entitled to priority over the other free shareholders for the excess in her account.  

SYLLABUS:

Petition by Harry B. Wolf, Jr., Receiver for the First Fidelity Savings and Loan Association, Inc., for instructions from the court as to certain questions.  From an order in favor of paid up free shareholders of the Association who had pledged their accounts as security for loans from the Association before its insolvency, and providing for a right to set-off the accounts to the extent of the loans, with interest, and from a similar order specifically in favor of Beatrice Crystal, the Receiver appeals.  

COUNSEL:
Eugene A. Alexander, III, with whom was H. Paul Rome on the brief, for the appellant.
Charles Cahn, II, with whom was Nathan Hamburger on the brief, for the appellees.  

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

OPINIONBY:
SYBERT 

OPINION:

 [*24]   [**921]  These appeals are from two orders of the Circuit [***5]  Court of Baltimore City (Oppenheimer, J.), both of which involved the question of whether a paid up free shareholder in a savings and loan association who has pledged his account as security for a loan from the association is entitled to set-off the account against the loan when the association becomes insolvent.
On June 2, 1962, the First Fidelity Savings and Loan Association, Inc. was placed in conservatorship by order of the Circuit Court of Baltimore City and on August 1, 1963, a receiver, Harry B. Wolf, Jr., was appointed by the court.  Before making a liquidation distribution to free shareholders, the receiver petitioned the court for instructions in February, 1964.  In his petition the receiver alleged that he had then "available for distribution, less the claims of general trade creditors and certain disputed claims, and expenses of administration and counsel fees, sufficient funds to pay a partial liquidating dividend to the free shareholders of approximately 10% of their accounts * * *." He then requested instructions in regard to, inter alia, the question which we have set out above.  He contended that the allowance of such a set-off would be inequitable to "non-borrowing [***6]  

 [*25]  free shareholders" and suggested, instead, that the amount of indebtedness due the association from each "borrowing member" should be reduced by the amount of any liquidation distribution due such member.
After notice was given, a hearing on the petition was held in open court at which several borrowers, including Beatrice Crystal, the appellee, appeared and opposed the receiver's position.  On May 20, 1964, Judge  [**922]  Oppenheimer signed an order which provided that "a right of set-off exists in favor of those depositors or free shareholders of *** [First Fidelity] whose free share accounts have been pledged with said Association as collateral for loans made from said Association before its insolvency to the extent and amount of their paid deposits in said free share accounts, but that set-offs shall not be recognized in any amount exceeding the amount of the loan of each of the individuals involved * * *." But because the Chancellor concluded that whether a right to a set-off existed in a particular case would depend on the facts and circumstances involved, he further ordered that all disputed claims be referred to a Special Master for hearing and report.  The [***7]  receiver, after authorization by the court, appealed from this general order (Appeal No. 241).  The Chancellor based his May, 1964, order on an opinion filed in connection therewith.  We shall discuss this opinion later.
In July, 1964, a hearing was held pursuant to the May order before Special Master J. Martin McDonough in regard to Beatrice Crystal's claim of a right to a set-off. According to the Special Master's report, Mrs. Crystal testified at the hearing that prior to the death of her husband in 1958 she had had a savings account in her own name in the Union Trust Company of Maryland and that her first savings and loan association account was opened with First Fidelity with funds received from her husband's estate.  She said she shopped in the Pimlico area of Baltimore and often passed a "bank" there which advertised by way of a sign that "5% interest was paid on savings accounts".  This was, in fact, the Pimlico office of First Fidelity Savings and Loan Association, Inc. Mrs. Crystal stated that she entered the office and was informed by an employee of the Association that "interest would be 5%, and savings were insured 

 [*26]  up to $ 20,000".  The Special Master found [***8]  that she opened an account with the Association in October, 1959, by signing a "membership and savings share account application", and that she received a passbook. Mrs. Crystal testified that she made deposits from time to time and the ledger card, which is a part of the record, shows several withdrawals.
According to Mrs. Crystal's testimony, in January, 1962 (approximately five months before First Fidelity was placed in conservatorship), she went to the Association to withdraw $ 6,900 from her account but was told by an employee of the Association that if she left her savings account intact and borrowed the money from the Association, the account would continue to earn 5% interest and that the interest on the loan would be tax deductible.  Mrs. Crystal then borrowed the $ 6,900 from the Association and was required to do the following things: (1) She signed a note payable to the Association in the amount of $ 6,900 with interest at six per cent per annum and providing for monthly payments of $ 500 each.  The note stated on its face that "the undersigned hereby pledges the account of the undersigned in said Association *** as security for said debt and authorizes any officer [***9]  of said Association in the event of any default to sign the name of the undersigned to a withdrawal request and to withdraw any part or all of the funds from said account from time to time for interest and principal payment hereon." (2) She signed a withdrawal slip entitled "Withdrawal from Savings Account" in the amount of $ 6,900, on the face of which was printed "I hereby apply for withdrawal from my account and acknowledge receipt of", after which was typed "Sixty Nine Hundred".  However, no withdrawal from her account was actually made, then or later.  (3) She delivered her passbook, which showed a balance of $ 8,673.58, to the Association.  At the same time the Association stamped the word "Hypothecated" across the ledger card of her savings account, which also showed a balance of $ 8,673.58.
The Special Master found that Mrs. Crystal paid $ 500 on the loan in February, 1962, and $ 300 in March, 1962, leaving an unpaid principal balance of $ 6,100; that no other payments were made on the loan;  [**923]  that no interest has ever been paid on the loan; and that her savings account contains a balance of 

 [*27]  $ 8,673.58, on which the last interest was added on January 2,  [***10]  1962.  He further found that although Mrs. Crystal "acquired membership in a savings and loan association" because of the papers she signed or received, "she considered she was depositing her funds in a savings institution, as if it were a savings bank, and she contemplated such funds could be withdrawn at any time * * *."
Judge Oppenheimer, by an order filed on July 31, 1964, ratified the Special Master's report and ordered that "For the reasons set forth in the [May 1964] Opinion *** of this Court *** the $ 6,100 balance on the note of Beatrice Crystal owing by her to the Association, plus a sum equal to interest on the unpaid balances from January 5, 1962 [the date of the note], to the date of these proceedings, be and it is hereby set-off in full against her claim of $ 8,673.58 against the Association on her account * * *." The receiver appealed from this order after authorization by the Chancellor (Appeal No. 279).  In the order the Chancellor specifically found that "Beatrice Crystal, by her agreement set forth in her application, by her acceptance of the passbook, and by her payments to the Association, was a member and shareholder of the Association." He also found [***11]  that the assets of the Association were, at the time of the order, sufficient to pay all claims against it other than claims of members, depositors and free shareholders arising out of their payments to the Association.
While both in the lower court and here Mrs. Crystal argued, inter alia, that she never became a free shareholder in First Fidelity but was rather a creditor of the Association in the nature of a bank depositor, entitled to be paid before the free shareholders, we think that, on the evidence presented, Judge Oppenheimer was warranted in holding that she was a free shareholder. Her testimony indicates that she could read and that she was a person of normal intelligence.  She had previously had an account with a bank; but in her dealings with the Association involved here the name "First Fidelity Savings & Loan Assn., Inc.", appeared in bold letters upon the office of the Association and upon all the papers which she signed or received, so that it appears unlikely that a person of average perception and understanding would have any reason for believing that 

 [*28]  he or she was dealing with a bank.  More importantly, she signed an application entitled "Individual [***12]  membership of share account holder", which read, in part, "I hereby apply for membership and a Savings share account in the FIRST FIDELITY SAVINGS & LOAN ASSOCIATION and for the issuance of evidence of membership in the approved form." Moreover, on the inside of the front cover of the passbook issued to her when she opened her account, the name of the Association appears in large letters below her name and then the wording: "This certifies that the above named is/are members of FIRST FIDELITY SAVINGS & LOAN ASSN., INC.  This certificate is issued and by the acceptance hereof is held subject to all the provisions of the Charter and By-laws of the Association and the laws of the State of Maryland * * *.  The undersigned [Association] may treat the holder of record in the manner by which membership was made as the owner for all purposes *** until this certificate, representing a preferred stock interest in the Association, is transferred on the books of the undersigned. * * *" Since there was no contention that Mrs. Crystal did not have the capacity to understand the instruments mentioned, nor any showing that there was any fraud practiced upon her in connection therewith, she is [***13]  bound by them.  Plitt v. McMillan, 235 Md. 349, 201 A. 2d 787 (1964); Rossi v. Douglas, 203 Md. 190, 100 A. 2d 3 (1953). We think the factors just mentioned distinguish the case before us from Building & Loan Assn. v. Dembowczyk, 167 Md. 259, 173 Atl. 254 (1934), in which a woman who could not speak English was held to be a depositor,  [**924]  and therefore a creditor, rather than a free shareholder, of the association there involved.  The certificate in the passbook constituted Mrs. Crystal a member and a shareholder. 13 Am. Jur. 2d, Building and Loan Associations, sec. 22, p. 163.  When one becomes a member of a savings and loan association, he thereby becomes chargeable with knowledge of the provisions of its charter and bylaws and is bound by them.  Bertche v. Equitable Loan & Invest. Asso., 48 S. W. 954 (Mo. 1898); State ex rel. McCormack v. American Bldg. & Loan Asso., 150 S. W. 2d 1048 (Tenn. 1941).
We now turn to Judge Oppenheimer's May, 1964 opinion, since the two orders before us in these appeals were based thereon.  

 [*29]  In that opinion Judge Oppenheimer stated, in effect, that when a free shareholder in a savings and loan association borrows [***14]  money from the association by pledging his paid up account with the association, a debtor-creditor relationship arises and that the free shareholder then has the joint status of member and debtor; but that when the association becomes insolvent, the debtor-creditor relationship becomes predominant and controlling, so that the ordinary rules applicable to debtor-creditor relationships are determinative of whether a right of set-off exists.  Judge Oppenheimer relied on the line of cases applying the so-called "Maryland Rule".  That rule, as laid down in Low St. Bldg. Assn. v. Zucker, 48 Md. 448 (1878), and as applied or recognized in a number of later cases by this Court, n1 is that upon the insolvency of the association, a borrowing member who has pledged as security for the loan shares of the association which he is in the process of purchasing by installment payments, is entitled to set-off against the amount of the loan, and interest thereon, all sums paid by him as dues upon his stock and as premiums and interest upon the loan. n2 (For consideration of the Maryland Rule and other rules see 13 Am. Jur. 2d, op. cit., secs. 118-121; 3 Clark, Law of Receivers (3rd ed.),  [***15]  sec. 910; Anno. 50 A.L.R. 533.)

n1 The Peter's Build.  Ass'n, No. 5, of Balto. v. Jaecksch, 51 Md. 198 (1879); Hampstead Building Asso., No. 11 v. King, 58 Md. 279 (1882); Southern Bldg. As'n v. Price, 88 Md. 155, 41 Atl. 53, 42 L.R.A. 206 (1898); Preston v. Woodland, 104 Md. 642, 65 Atl. 336, 10 Ann. Cas. 389 (1906); Murphy v. Preston, 107 Md. 444, 69 Atl. 114 (1908); Frederick v. Lyons, 173 Md. 95, 194 Atl. 815, 113 A.L.R. 236 (1937).
n2 The Maryland Rule has been construed as not broad enough to cover a nonborrowing member who hypothecates his stock as security for loans to borrowing members.  Frederick v. Lyons, supra, note 1.

The rationale of the Maryland Rule is that there is a two-fold relationship between the borrower and the association, namely, debtor-creditor and member-association, and that upon the association's insolvency the debtor-creditor relationship becomes predominant because it has become impossible for the association any longer to carry out its contract with its members (for example,  [***16]  one facet of such impossibility would be that the 

 [*30]  shares could never be issued even though eventually paid for in full.) Judge Oppenheimer stated that he could see no logical reason why the rule should not be extended to the situation where the borrower is a paid up free shareholder rather than an installment purchaser of shares.  We think that, both upon reason and upon the authorities, Judge Oppenheimer's conclusion was correct.
While, as noted, the cases in which this Court applied the Maryland Rule involved installment purchasers of shares, those cases recognize that the insolvency or dissolution of an association is equivalent to a rescission and termination of the contract between the association and its members, salient features of which were the undertaking of the association to remain in business and to pay its members the fixed value of their stock in full, and that these factors become most material in determining the  [**925]  rights of borrowers. As was said by Judge Alvey for the Court in Low St. Bldg. Assn. v. Zucker, supra, in speaking of an insolvent building association:
"*** The circumstances of the Association therefore, and its inability [***17]  to carry out in good faith the contract with the mortgagors, must terminate the contract as originally contemplated, and the parties must occupy the position that they would occupy if the Association were dissolved.  And treating the case upon that footing it falls immediately within the principle of the case of Windsor & Applegarth vs. Bandel, 40 Md., 172. In that case the Association had been dissolved, and in speaking of the rights of the mortgagors, who had given a mortgage on the redemption of shares, as in this case, this Court said, that by the dissolution of the Association before the period originally contemplated, and the alteration of the articles, the mortgagors' contract was at an end.  It was impossible for them to perform the covenants contained in their mortgages, and they were entitled to have them released upon the payment of the sum justly due.  * * *" (Emphasis in original.) (at pp. 453-454 of 48 Md.)
The Court, in Zucker, then found that the mortgagors were entitled 

 [*31]  to have credited against their mortgage debt all sums which they had paid in the nature of principal and interest upon their stock, without any deduction for losses of the [***18]  association.  To the same effect, see The Peter's Build. Ass'n, No. 5, of Balto. v. Jaecksch, 51 Md. 198 (1879); Hampstead Building Asso., No. 11 v. King, 58 Md. 279 (1882); Southern Bldg. As'n v. Price, 88 Md. 155, 41 Atl. 53 (1898).
As Judge Oppenheimer pointed out in his May, 1964 opinion, in the present case there are no rights of other classes of creditors to be considered, but only the rights of the shareholders as between themselves are involved, and he quoted the following excerpt from the opinion of Judge Hammond for the Court in Jones, Adm. v. Hamilton, Adm., 211 Md. 371, 127 A. 2d 519 (1956) (a case which dealt with trust accounts in savings and loan associations):
"Maryland decisions have concluded that there is no rational basis for drawing a distinction between accounts in savings banks and accounts in savings and loan associations as far as the rights of depositors as between themselves are concerned.  Bierau v. Bohemian Bldg., etc., Ass'n, supra; Wetzel v. Collin, 170 Md. 383; Gimbel v. Gimbel, 148 Md. 182; Kozlowska v. Napierkowski, 165 Md. 620. * * *" (p. 380 of 211 Md.)
Given the Maryland Rule as applied in the cases, its extension [***19]  to allow the right of set-off to borrowers whose shares have been paid in full would seem to be impelled by the authorities cited.  To hold otherwise would amount to making a distinction without the existence of any real difference, and would, it seems to us, amount to a harsh and unwarranted discrimination against the borrower whose shares were already paid up at the time of the loan.  And, as Judge Oppenheimer well said in his opinion, "Recognition of the right of set-off does not violate the equitable rights of non-borrowing shareholders. All shareholders, before insolvency, had the right, under the charter and by-laws, to withdraw, in part or in whole.  The shareholders who borrowed before insolvency allowed their monies to remain for the use of all members instead of exercising their right of withdrawal."

 [*32]  While, as we have seen, the relation of debtor-creditor between the borrowing member and the association becomes predominant upon the insolvency of the latter, the borrower remains a free shareholder. 13 Am. Jur., op. cit., secs. 108, 111.  We have expressly held that where the  [**926]  funds in a borrower's account amount to more than his debt, the debt [***20]  is extinguished but as to the remainder in his account the borrower is regarded as a stockholder and shares pro rata with the other shareholders upon liquidation of the association's assets.  Murphy v. Preston, 107 Md. 444, 69 Atl. 114 (1908). Thus, while Mrs. Crystal is entitled to set-off so much of her account as is necessary to pay her note, with interest, she is not entitled to priority over the other free shareholders for the excess in her account.
We point out that the case of Jolly v. First Union, 235 Md. 161, 201 A. 2d 4 (1964), has no bearing on the issues presented here, since it dealt only with the rights of a withdrawing free shareholder under Code (1963 Cum. Supp.), Art. 23, sec. 161 X.
Orders affirmed; appellant to pay the costs.  

70 of 138 DOCUMENTS 

ROBINSON, Etc. et al. v. HALL 

No. 256, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 17; 209 A.2d 917; 1965 Md. LEXIS 515 

May 11, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed, with costs.  

HEADNOTES:

Instructions to Jury -- Vehicular Negligence Case -- Claim That Trial Court Failed To Give Certain Instructions Held Not Properly Reserved For Consideration On Appeal Under Maryland Rule 554 d -- Purpose Of Rule.  In this vehicular negligence case, where the plaintiffs claimed (1) that the trial court had failed to permit the jury to determine whether the defendant was confronted with an emergency at the time of the accident, and (2) that even if an emergency existed, the court should have instructed the jury that the emergency rule could not be invoked by one whose negligence had created it, this Court held that under the circumstances here the questions were not properly reserved for its consideration under Maryland Rule 554 d.  There was no request that the trial court inform the jury upon these points.  The Rule is neither frivolous nor technical in nature, nor designed to protect unwary trial judges and entrap inalert trial counsel, but to serve a very practical and useful purpose.
Instructions to Jury -- Rejection By Trial Court Of All Written Prayers Or Instructions  [***2]   Requested By Parties And Giving Of Oral Charge To Jury -- Not Improper Under Maryland Rule 554 b 1, Where Instructions Properly Requested In Prayers Were "Fairly Covered" In Trial Court's Charge.  

SYLLABUS:

Action by Charles Robinson, an infant, by Barbara C. Robinson, his mother and next friend, and by Charles Robinson, Sr., and Barbara C. Robinson, his wife, against William A. Hall for damages for injuries allegedly resulting to the infant from a collision with the defendant's automobile at a street intersection.  From a judgment for the defendant, entered upon a jury's verdict in his favor, the plaintiffs appeal.  

COUNSEL:
Myles R. Eisenstein for the appellants.
Morton P. Fisher, Jr., with whom was Jesse Slingluff on the brief, for the appellee.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*18]   [**918]  This case arose when the 6 year old (at the time of the accident) pedestrian plaintiff-appellant instituted suit against the motorist defendant-appellee for damages for injuries resulting from a collision at an uncontrolled street intersection in Baltimore City.  Questions [***3]  of primary and contributory negligence were submitted to the jury, and, after an adverse jury verdict and the entry of judgment against him for costs, the plaintiff has appealed.
He contends that the trial judge erred: (1) in its instruction "concerning the degree of care required in an emergency"; and (2) in refusing to grant his Nos. 2 and 3 prayers.
The parties, commendably, have agreed upon many of the facts.  The accident occurred at about 4:30 p.m. on a clear afternoon in September, 1961, at the uncontrolled intersection of Baker Street (42 feet wide, running east and west) and McKean Avenue (42 feet wide, running north and south).  The streets at this location were level, and the sidewalk on the west side of McKean is 15 feet wide. No pedestrian lines were painted in the street. Cars were parked on the north and south sides of Baker west of McKean, and traffic in Baker Street was proceeding in a single line both east and west.  Immediately prior 

 [*19]  to the accident, the young plaintiff had been to a confectionary store, and at the time of the accident was crossing from the northwest corner to the southwest corner of the intersection. When the accident occurred, the [***4]  defendant, accompanied by one Arthur Flax, was operating his automobile easterly along Baker.
Only two eyewitnesses to the accident testified.  The appellee stated that he was proceeding easterly on Baker.  When he reached Monroe, a street 170 feet immediately west of McKean, he stopped for a red light.  The light changed and he proceeded toward McKean at a speed of 15 to 20 miles an hour.  When he had nearly arrived at the intersection, a car, travelling westerly on Baker, passed him, and, as it did, the plaintiff ran from behind this car in front of his.  The first time he saw the child, the appellant was less than a foot away.  He immediately applied his brakes and stopped within a couple of feet, but his car came into contact with the boy.  He got out and went to the child, who was lying about 1 1/2 feet in front of his vehicle, which was about 15 feet north of the south curb of Baker and about 9 feet west of the west curb of McKean.
A Mrs. Frazier was produced by the appellee.  She was driving her car westerly on Baker and had nearly arrived at McKean.  She saw a car ahead of her traveling west on Baker as it passed appellee.  She saw the appellant "dash" out of the store, and [***5]  "without stopping or looking" run into the street. He ran behind the car that was proceeding west on Baker (at a time when appellee's vehicle was just 3 to 4 feet away) directly into the path of appellee's automobile.
I
Appellant attempts to make this contention a two-pronged challenge to a portion of the court's instructions.  He states that the court failed to permit the jury to determine whether appellee was confronted with an emergency at the time of the accident, and, even if an emergency  [**919]  existed, the court should have instructed the jury that the emergency rule cannot be invoked by one whose negligence has created the emergency. There can be little doubt that if there be evidence in a case legally sufficient to support a finding that an emergency existed, the existence, vel non, of such emergency, generally, becomes a 

 [*20]  question of fact for the jury.  Lehmann v. Johnson, 218 Md. 343, and cases therein cited.  And there also can be little doubt that one, who by his own wrong has brought about an emergency, cannot invoke the emergency rule. Baker v. Shettle, 194 Md. 666; Warnke v. Essex, 217 Md. 183; 1 Blashfield, Cyc. of Automobile Law  [***6]   and Practice, pp. 547, 552.
However, if we lay aside the possibility that the uncontradicted evidence disclosed that an emergency existed, we are unable to conclude that the questions were properly reserved, under Maryland Rule 554 d, for our consideration.  Here is appellant's objection to that portion of the charge relating to the question of emergency: "Your Honor's instructions to the jury that this was an act of emergency. I do not feel that instruction is appropriate as there is some evidence in this case that the emergency was brought about by the acts of the defendant and under those circumstances that instruction should not be given." (Emphasis added.) The objection did not state that defendant's "negligence" brought on the emergency, and, in fact, challenges the propriety of giving any instructions relative to an emergency.
It will be noted that there was no request that the court inform the jury that it should determine whether or not an emergency existed. Had this been done, the court could have then decided whether to include such an instruction in a supplemental charge, or that the uncontradicted evidence conclusively showed that an emergency did [***7]  exist and he was going to rule, as a matter of law, to that effect.  Such a course of conduct would have definitely reserved for our review the ruling of the trial court, either way it ruled.  It, likewise, will be noted that the objection contains no request to instruct the jury that the emergency rule cannot be invoked by one whose negligence has created the emergency. Again, had this been done, the trial court then would have had the option to instruct the jury to that effect, or refuse to do so; and, again, this clearly would have reserved the propriety of its ruling for our determination.  The objection, as we have quoted it above, does not, we think, preserve the questions for our review.
Maryland Rule 554 d is not frivolous or technical in nature, nor is it designed to protect unwary trial judges and entrap 

 [*21]  trial counsel lacking alertness.  It is a very practical, down-to-earth rule, which serves a useful and salutary purpose.  When a trial court delivers its oral instructions to a jury, they, generally, cover quite a few questions of law, with varied ramifications.  In giving such instructions, the courts, quite naturally, on occasions inadvertently misstate some [***8]  principle of law or omit some instruction that should be given.  The Rule affords trial counsel, who are familiar with the facts of their case and the law appertaining thereto, an opportunity to call to the attention of the court any such omission or misstatement, and, in turn, affords the court an opportunity to correct any such omission or misstatement. This, quite frequently, does away with the necessity of new trials, with the attendant expenditure of time and costs.  Thus, the Rule serves a very practical and useful purpose.
II
In the instant case, the trial court rejected all written prayers or instructions requested by the parties, and instructed the jury orally.  This, he had a right to do, provided any properly requested instruction was "fairly covered by instructions actually given." Maryland Rule 554 b 1.  Appellant here assigns as error the refusal  [**920]  to grant his written prayers Nos. 2 and 3.  We do not think it would serve any useful purpose to set forth verbatim the prayers or the court's instructions which appertained thereto.  It will suffice to say that, putting aside possible defects in the written prayers, we have carefully examined the prayers and the [***9]  court's instructions, and, from such examination, we have concluded that all instructions properly requested in the prayers were "fairly covered" in the court's instructions.
Judgment affirmed, with costs.  

71 of 138 DOCUMENTS 

MacDONALD, et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY AND ISLE OF THYE LAND COMPANY 

No. 427, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 549; 210 A.2d 325; 1965 Md. LEXIS 683 

May 5, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Dissenting Opinion Filed May 25, 1965.  

PRIOR HISTORY:
Appeal from the Circuit Court for Prince George's County; Loveless, J.  

DISPOSITION:
Order reversed in part and affirmed in part and case remanded for further proceedings in accordance with this opinion; the costs to be paid by the appellees.  

HEADNOTES:

Zoning -- Rezoning Applications For Three Smaller Tracts Located Within Large Tract To Be Developed Into A Planned Community -- Application For R-H Rezoning Denied -- No Evidence Of Error In Original Zoning -- Evidence Of Change In Conditions Not Sufficient To Make Facts Fairly Debatable -- Applications For C-2 Rezoning Granted -- Issues Fairly Debatable -- Public Need -- Change Was Consistent With Pattern Of Development.  In the instant zoning case the Isle of Thye Land Company, one of the appellees, owned a large area of 655 acres, which was to be developed into a planned community called Tantallon on the Potomac and which was zoned R-R (Rural Residential).  The Land Company sought to reclassify three tracts of land located within the 655 acres, so that two tracts would be zoned to C-2 (General Commercial) and the third, to R-H (Multiple Family, High Rise Residential).  All three applications [***2]  were granted by the Board of County Commissioners for Prince George's County and this was affirmed by the court below.  This Court first considered the application for R-H zoning and noted that it has repeatedly held that there is a strong presumption of the correctness of original zoning, and to sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or else of a substantial change in conditions.  It was pointed out that the Land Company did not contend that there had been a mistake in the original zoning. But it did contend that comprehensive rezoning was involved here because of the extent of its entire acreage and the nature of its plans for the development of that acreage.  However, the Court stated that it is not the proposed treatment of a particular tract within the broad territory encompassed by the original zoning plan which governs; the impingement of the proposed rezoning upon the general plan is the criterion.  It was held that in this case it was proposed piece-meal rezoning which was involved and that the strong presumption of the correctness of the original comprehensive zoning prevailed.  In addition, it was held [***3]  that the alleged changes in conditions in the immediate area adduced by the Land Company to support their application to rezone the tract for high-rise apartments, did not constitute evidence sufficient to make the facts fairly debatable. It was also pointed out that the Land Company did not contend that denial of the application would preclude the use of its property for any purpose to which it was reasonably adapted.  On the contrary, it admitted it would be practical, although from its point of view not as satisfactory, to continue the development of Tantallon without high-rise apartments. The developer's desire to make additional profits is a legitimate motive, but not sufficient to justify a rezoning. With regard to the two C-2 tracts, however, the Court felt the situation was different.  It was held that the issues as to these requests were fairly debatable. The Court stated that a zoning authority, when there is evidence to justify its finding, may determine that the creation of a small retail district within a residential area is for the accommodation and convenience of the residents, and so in the public interest.  The Court felt that there was some evidence as to [***4]  the need for more maritime amenities and a restaurant which were proposed for the C-2 tracts and that they would be consistent with the low-density pattern of development.  Therefore, it was held that the granting of these two applications was properly sustained.  

SYLLABUS:

Applications by the Isle of Thye Land Company for zoning reclassification of three tracts of land, opposed by Charles B. MacDonald, and others.  From an order of the Circuit Court for Prince George's County affirming the action of the Board of County Commissioners for Prince George's County, sitting as a District Council for the Prince George's portion of the Maryland-Washington Regional District, which granted the applications, the protestants appeal.  

COUNSEL:
James Vance, in proper person, and George E. Burgess, with whom were Meloy & Burgess on the brief, for appellants.
Robert B. Mathias, with whom was Lionell M. Lockhart on the brief, for Board of County Commissioners of Prince George's County, Maryland, part of appellees; Charles F. Finley, with whom were Blair H. Smith and Herbert Reichelt on the brief, for Isle of Thye Land Company, other appellee.
Brief Amicus Curiae filed [***5]  by the United States.  J. Edward Williams, Acting Assistant Attorney General, Roger P. Marquis and Edmund B. Clark, Attorneys, Department of Justice, Washington, D. C., on the brief.  

JUDGES:
Hammond, Marbury, Sybert, Oppenheimer and Barnes, JJ.  Oppenheimer, J., delivered the majority opinion of the Court.  Barnes, J., dissented.  Dissenting opinion at page 557 infra.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*551]   [**326]  Adjacent property owners appeal from an order of the Circuit Court for Prince George's County affirming a zoning action of the Board of County Commissioners for Prince George's County, sitting as a District Council for the Prince George's portion of the Maryland-Washington Regional District (the Council).  The Council had approved applications of the Isle of Thye Land Company, one of the appellees (the Land Company), to reclassify three tracts of land all zoned R-R (Rural Residential).  Two tracts of approximately nine and three acres respectively were rezoned to C-2 (General Commercial) and the third, of about 29 acres, to R-H (Multiple Family, High Rise Residential).
The three tracts are part of a larger area of 655 acres owned by the Land Company, called Tantallon [***6]  on the Potomac, located 

 [*552]  in the southwestern portion of the County, on Swan Creek, which empties into the Potomac.  The Woodrow Wilson Bridge and the Capital Beltway are four or five miles to the north.  Fort Washington National Park, a 341 acre reservation, is adjacent to the area on the south and Mount Vernon is across the Potomac River to the west.
All the area is included in the Washington-Maryland Regional District and was zoned R-R by the Council on November 20, 1957.  The rezoning applications here involved were filed on June 14, 1962 and later amended. n1

n1 As to the 29 acres, the original application asked for a rezoning to the R-10 classification (Multi-Family, Medium Density, Residential).  On November 10, 1962, a new zoning classification was adopted, the R-H zone, and the application as to the 29 acres was amended to apply to the new zone. The report of the technical staff, as to the 29 acres, was amended after the application had been amended.

The technical staff of the Planning Commission [***7]  recommended denial of all three applications.  Its amended report stated, in part:
"The staff, in its review of this application, concludes that the granting of any zone on this property other than the existing R-R Zone, would be spot zoning. The development which has occurred in the area has been that of single family dwellings on larger than minimum lot size standards, and, the changes which have occurred in this area, the Tantallon community included, are a continuation and solidification of this pattern.  * * *"

The Planning Board recommended denial of the R-H rezoning for the reasons given by its technical staff. The Board, however, recommended that the two commercial rezonings (as to the nine and three acre tracts) be approved, stating:
"The Board feels that the subject properties are ideal locations for a marina and restaurant and, further, that such proposed uses would be in keeping with the low-density pattern of development proposed in the Preliminary General Plan for this area."

 [*553]   [**327]  At the hearing before the Council, the expert witnesses of the Land Company offered voluminous and plausible testimony as to the attractive nature of [***8]  the plans for the area which it owns.  It claimed but offered no evidence to support a mistake in the Master Zoning Map.  It relied, instead, upon claimed substantial changes in the area since the adoption of the comprehensive zoning map.  The nature of the alleged changes will be considered hereafter.  The Chief Engineer of the Planning Commission elaborated upon the reports of the technical staff, and testified that the changes that had occurred in the area of the Land Company's property were oriented towards low density, single family development.  Neighboring and adjacent property owners, including the appellants, presented testimony in opposition to the reclassifications, with letters from other protestants, including Secretary of the Interior Udall. n2

n2 In this appeal, the United States has filed a brief as amicus curiae, asking that the order of the court below be reversed.

The Council, one of the Commissioners dissenting, approved all three of the Land Company's applications for rezoning. The formal [***9]  notice of the Council gave no reasons for its decision.  The only statement in the nature of reasons is contained in what appears to be a press release on behalf of the Council.  This release, apart from some extraneous remarks, contained the following statements:
"Commissioner Brooke, in making his motion, pointed out that the several proposed 20-story apartments would be 3400 feet back from the river, 'in a natural valley which would keep them screened from view from the river and the Virginia shore.'
"He also noted expanded highway development in the general area and that neither the Board of Education nor the National Capital Planning Commission opposed the planned community.
***"In a second action, the Commissioners unanimously approved changes in zoning requested by the Tantallon developers for two sites in the C-2 classification, 

 [*554]  for which the developers proposed to construct a small boat marina and a restaurant.  The commissioners asked legal counsel if a lesser degree of commercial classification could suffice for these facilities, but it was determined that C-2 was the only appropriate designation."

It was also stated that the Chairman of the [***10]  Council, who votes only in case of tie, had declared himself in sympathy with the zoning request.  Commissioner Gladys Spellman, who dissented, in a separate announcement, said in part:

"The changes which have taken place in the area are not sufficient to warrant rezoning from a low density, single family category.  ***
"No need has been established for high density apartments in the middle of an area of extremely low density, other than that of remunerative return for the applicant.  ***
"No proof of error in the original zoning was presented.
"The Isle of Thye Land Company plans high-rise apartments on approximately 29 acres, and accordingly requests a change to R-H zoning. However, the use of this zone category in a low-density setting is totally at variance with the purpose of R-H zoning as set forth in the text of the classification * * *.
***"We must recognize that the District Council is concerned for the County as a whole and not merely 650 acres of the county.  It is certainly not reasonable to assume that because a community  [**328]  is well-planned and well-balanced, it may be set down at any point in the County without doing violence to the [***11]  surrounding areas.  Planning must extend beyond the borders of individual communities and encompass the larger areas of the County in order that communities may complement each other rather than inflict harm upon one another."
There was a hearing on the Petition for Review of the Council's 

 [*555]  order before Judge Loveless.  In his opinion affirming the order, the Judge pointed out that the Land Company had not contended there had been a mistake in the original zoning, and that the court had no alternative other than to say that no mistake had been shown.  Judge Loveless referred to the 14 items relied upon by the Land Company as changes in the area since the original zoning was made and held they were sufficient evidence to justify a reclassification if the Council, in its legislative discretion, so decided.  He held, further, that the issues were fairly debatable, and that the Board's action in approving the applications was not arbitrary or capricious.  We disagree in respect of the Board's order granting the application to rezone the 29 acres for high-rise apartments.
We have repeatedly held that there is a strong presumption of the correctness of original zoning, and [***12]  that to sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or else of a substantial change in conditions.  Greenblatt v. Toney Schloss, 235 Md. 9, 13, 200 A. 2d 70 (1964); Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 269-70, 192 A. 2d 502 (1963) and cases therein cited.  The Land Company contends that here comprehensive rezoning is involved, because of the extent of its entire acreage and the nature of its plans for the development of that acreage.  However, as Commissioner Spellman points out in her dissent from the Council's order, it is not the proposed treatment of a particular tract within the broad territory encompassed by the original zoning plan which governs; the impingement of the proposed rezoning upon the general plan is the criterion.  See Hewitt v. Baltimore County, 220 Md. 48, 57-60, 151 A. 2d 144 (1959). We hold that, in this case, it is proposed piece-meal rezoning which is involved and that the strong presumption of the correctness of the original comprehensive zoning prevails.
The majority of the Council, in effect, gave no reasons for its order.  The alleged changes of conditions in the immediate area [***13]  adduced by the Land Company to support their application to rezone the 29 acres for high-rise apartments, in our opinion, do not constitute evidence sufficient to make the facts fairly debatable. A number of these changes have taken place, or are contemplated, within the Tantallon tract itself.  The building of 

 [*556]  a golf course, the dredging of Swan Creek, the reservation of a school site within the tract, and the authorization of public utility services for the Tantallon enterprise are as consistent with increased rural residential development as they are with the building of high-rise apartments. The characterization by the appellants of these alleged changes as "bootstrap" arguments, in our opinion, is appropriate.  The report of the technical staff of the Planning Commission states that the development which has occurred within the area, including the Tantallon tract, has been a continuation and solidification of the single family dwelling pattern, with lots larger than the minimum standard, and this statement was not contradicted.  The road improvements referred to by the Land Company do not change the character of the neighborhood; as the technical staff pointed out,  [***14]  "[t]he character of the surrounding area is reflected in the road network which consists of generally narrow, winding two-lane pavements designed to serve traffic volumes generated by low density, large lot development." The completion of the Woodrow Wilson Bridge and Anacostia Freeway listed as additional  [**329]  changes presumably were envisaged in the comprehensive zoning plan, adopted by the legislative body only a little less than five years before the Land Company's application.  In any event, the Bridge and Freeway are some miles away.
The Planning Board, as well as its technical staff, recommended that the applications for the high-rise apartment rezoning be denied.  The majority of the Council refused to accept the Board's recommendations, without substantial evidence to support its actions.  In similar circumstances, although on varying facts, we have held that an order of the lower court affirming the Board's action must be reversed.  Greenblatt v. Toney Schloss, supra; Levitt & Sons v. Board, 233 Md. 186, 195 A. 2d 723 (1963). See also Shadynook Imp. Assn. v. Molloy, supra. Because there was no evidence to make the issue fairly debatable, the same result [***15]  must follow here.
The Land Company does not contend that denial of the application would preclude the use of its property for any purpose to which it is reasonably adapted.  On the contrary, it admitted it would be practical, although from its point of view not as satisfactory, to continue the development of Tantallon without 

 [*557]  high-rise apartments. The developer's desire to make additional profits is a legitimate motive, but not sufficient to justify a rezoning. Shadynook Imp. Assn. v. Molloy, supra, at 272 and cases therein cited.
In Board v. Oak Hill Farms, 232 Md. 274, 192 A. 2d 761 (1963) relied upon by the appellees, the situation was the converse of that here presented.  There, the Planning Commission rejected the recommendation of its technical staff that the application for rezoning be denied; we affirmed the order of the lower court reversing the Councils' action denying the petition because we found (as we find here) that there was no evidence to support the Council's order.
The situation as to the two smaller tracts, for each of which application was made for commercial rezoning, in our opinion, is different.  While the planning staff recommended [***16]  denial of these applications as well as of the request for the R-10 zoning, the Planning Board disagreed with the recommendations as to the two smaller tracts. We agree with the court below that the issues as to these requests were fairly debatable. A zoning authority, when there is evidence to justify its finding, may determine that the creation of a small retail district within a residential area is for the accommodation and convenience of the residents, and so in the public interest.  See Hewitt v. Baltimore County, supra, at 60. There was some evidence as to the need for more maritime amenities, and as the Planning Board pointed out, the proposed marina and restaurant would be consistent with the low-density pattern of development.  The Council's action as to these applications was properly sustained.
Order reversed in part and affirmed in part and case remanded for further proceedings in accordance with this opinion; the costs to be paid by the appellees.  

DISSENTBY:
BARNES 

DISSENT:

Barnes, J., filed the following dissenting opinion.
It is with trepidation that I write my first dissenting opinion as I have always believed that, wherever possible, appellate courts should have [***17]  unanimous opinions.  My Brethren assure 

 [*558]  me, however, that often dissenting opinions may be helpful to point up and clarify the issues involved and it is with this encouragement that I proceed.
In my opinion, the majority has not only gone astray in its application of the law of zoning to the facts of the case, but has applied principles and standards that I believe are inapposite to the factual situation present in this appeal.  In either event the time has come when the soundness of the foundations upon which those principles and standards rest should be re-examined.
 [**330]  The order of the Circuit Court for Prince George's County involved in this appeal has been reversed in part and affirmed in part.  I will deal initially with that part of the order which the Court reverses -- first in the light of the principles and standards which the Court has applied (Part I), then with the prior cases indicating to my mind that the principles and standards applied by the Court are not applicable in this factual situation (Part II) and then with a suggested re-examination of those principles and standards (Part III).  Finally, this dissenting opinion will consider my reservations [***18]  in regard to those parts of the order of the lower court which are being affirmed (Part IV).
Part I
Of the three petitions presented by the Isle of Thye Land Company to the District Council of the Maryland-Washington Regional District in Prince George's County, the petition seeking reclassification of a 29.15-acre tract from an R-R (rural residential) zone to an R-H (high-rise apartment) zone will be discussed in this Part of this opinion.  That petition was referred to the Technical Staff of the Maryland-National Capital Park and Planning Commission, as required by Subtitle 59-83 of the Code of Public Local Laws of Prince George's County (1963 edition), and was the subject of unfavorable recommendations by the Staff and by the Planning Commission itself.  Despite such recommendations, the County Commissioners, sitting in their capacity as a special statutory District Council, granted the Company's petition and rezoned this tract to the requested high-rise apartment classification by vote of four to 

 [*559]  one.  The Circuit Court affirmed this action, but a majority of this Court today reverses the order of the lower court.
In his written opinion in the lower court, Judge Loveless [***19]  commended both sides for having presented strong, solid testimony; noted that "both proponents and opponents presented meritorious arguments," and that "a decision would be most difficult to make." He concluded that the legislative body did not act from caprice, that the entire record presented a fairly debatable issue, and that "a reasoning mind could reasonably have reached the decision of the District Council."
In view of these definite findings by the learned court below, what does the majority opinion offer to sustain its determination that all of the proponents' evidence, even if believed, is insufficient as a matter of law, to justify a reclassification, if the District Council in its legislative discretion should resolve to make such a change?  The first several pages of that opinion deal with the evidence with respect to the needs for, and desirability of, the proposed rezoning, as seen through the eyes of the Technical Staff, the Planning Commission, the several Councilmen, and the Circuit Court.  The majority opinion offers no hint in regard to its views of this evidence; it then proceeds to deal with and to apply rigidly, the "change or mistake" rule.
The Court next turns [***20]  to the subject of a "change in conditions" and notes that fourteen (14) n1 such changes were relied upon by the applicants for rezoning before the District Council and before the Circuit Court, which sustained the Council.  But, we are told, some changes occurred within the geographical boundaries of the Company's property itself, while other changes are consonant with "the single family dwelling pattern," and still others, such as the construction of new freeways and bridges nearby, "presumably were envisaged in the comprehensive zoning plan." First of all, it seems to me that this treatment of the 

 [*560]  evidence supporting the change  [**331]  in conditions is not sufficient in this type of case.  Whether the test be the presence of changes (in the plural) of conditions (Offutt v. Board of Zoning Appeals, 204 Md. 551, 557, 105 A. 2d 219 (1954)) or of a change in the character of the neighborhood (Serio v. Mayor and City Council, 208 Md. 545, 551, 119 A. 2d 387 (1955)), any one of the alleged changes, since we are not told upon which one or ones the Circuit Court made its decision, may in and of itself have been thought to justify the decision of the District Council.  [***21]  In deference to its decision, then, each and every such change should have been declared insufficient as a matter of law, before Judge Loveless' order could properly be reversed.  After reciting as Item 1 that the area was added to the Regional District by the Maryland-National Capital Park and Planning Commission (MNCPPC) on June 1, 1957, the following changes are listed on Petitioner's Exhibit 6 filed September 17, 1963, as follows:
1. First parcel of Tantallon was acquired July 22, 1959; the first master plan of Tantallon was completed in August 1960 by Theodore G. Robinson; n2 and the present master plan for Tantallon was completed in October 1961 by Mr. Robinson.
2. The District Council for Prince George's County granted a special exception for a golf course and Country Club on October 20, 1961; this is shown in the shaded dark green area on the October 1961 final master plan for Tantallon.
3. The championship golf course was completed on August 21, 1962.
4. The Woodrow Wilson Bridge was completed and the 

 [*561]  Anacostia Freeway to South Capitol Street was opened on December 28, 1961.
5. Five subdivision plats were approved or recorded in conformity with the final [***22]  master plan for Tantallon as follows:
a. Section 1 -- Recorded January 8, 1963
b. Section 2 -- Recorded January 8, 1963
c. Section 3 -- Preliminary Plan approved by MNCPPC on March 21, 1962
d. Section 4 -- Recorded November 27, 1962
e. Section 5 -- Recorded February 19, 1963
6. MNCPPC required a dedication of a 60 foot right-of-way for Swan Creek Road on January 8, 1963.
7. MNCPPC required a dedication of an 80 foot right-of-way for the Fort Washington Road on November 27, 1962.
8. The U. S. Corps of Engineers issued a permit on March 29, 1962 to dredge Swan Creek and the first section from the main channel of the Potomac River to the Swan Creek Bridge was dredged to 6.5 feet at MLT.
9. The Piscataway Regional sewerage system was approved by the Washington Suburban Sanitary Commission (WSSC) on August 16, 1960; WSSC authorized waste and sewer service to Tantallon on November 8, 1962; the Piscataway treatment plant site was selected on April 4, 1963.
 [**332]  10. The Indianhead Highway was scheduled for dualization in the 3rd quarter of 1963 by the State Roads Commission of Maryland.
11. The Washington Gas Light Company authorized gas service to Tantallon on December [***23]  26, 1962.
12. The National Capital Planning Commission at its September 1962 meeting approved the proposal of its Staff for a reduction of taking for park purposes between Fort Washington and Swan Creek from a contemplated 21 acres to approximately 10 acres in consideration of the reservation as park land of approximately 12 acres between Swan Creek and Swan Creek Road.
13. On July 3, 1962, the Board of Education of Prince George's County authorized the acceptance of the Isle of Thye Land Company's proposal to reserve a 10-acre school site on its property on the east side of Fort Washington Road.

n1 There were thirteen (13) changes listed on Exhibit 6 as the first item was merely the date, June 1, 1957, when the area was added to the Regional District by the Maryland-National Capital Park and Planning Commission.
n2 Mr. Robinson has extraordinary qualifications as a Planner.  He holds a Master of Science degree from the University of Southern California, with a major in City Planning in 1947 and served as a City Planner from 1947 to 1950.  He has been Director of Planning for the City of Pomona, California and he and his associates have acted as planning consultants to 26 cities and 4 counties in California.  They have prepared many zoning ordinances and master plans.  The evidence indicates that he is an advanced thinker in planning problems.  This advanced thinking is reflected in his final master plan for Tantallon of October 1961 which is in the Record but which was not reproduced in the Record Extract.

 [***24]  

 [*562]  In addition to the physical changes listed above, the substantial weight of the testimony before the District Council established that:
a. There was a need for high-rise apartments in the area and the inclusion of the five proposed high-rise apartments were a proper part of the final master plan for Tantallon.
b. The high-rise apartments were 3400 feet from the Potomac River and would in no way impair the view of the north shore of the Potomac River.
c. There was no injury to the public health, safety, security or general welfare which could result from the erection of the proposed high-rise apartments.
In my opinion, the physical changes alone would support a finding by the District Council and by the lower court that there had been a "change of conditions" within the meaning of the Maryland Rule, if applicable.  The physical changes are substantial ones relating to the public roads which form the southern, eastern and part of the northern boundaries of the Tantallon development, the increased accommodation of traffic from the District of Columbia to the area, the rearrangement of areas for parks, the providing of utilities for the area and the provision for [***25]  school facilities by the Board of Education.  Swan Creek, with the approval of the proper governmental officers, has been dredged as contemplated by the master plan of Tantallon.  The subdivision plats are based on the master plan of Tantallon which includes the five high-rise apartments. This master plan is known to, and there is no objection to it from, the National Capital Planning Commission. If these physical changes in the neighborhood are not sufficient to justify the District Council in believing that there had been a "change in conditions," it is difficult for me to visualize a case in which the change of conditions rule could apply.
Secondly, I cannot see the propriety of holding that certain genuine changes in conditions, otherwise able to be considered, should be thought ineffective or insufficient solely because they occurred within the geographical limits of the 650 acres the Isle of Thye Land Company happens to own.  A change is a change, regardless of the ownership of the land on which it occurs.  

 [*563]  The golf course, for example, was able to be constructed only because the District Council had issued a special exception (not here challenged) some time in [***26]  the past.  If this be otherwise admissible evidence of a change in the environs, what does it matter that legal title to the land under the golf course is also held by the Tantallon developers?
Thirdly, the majority's statement that the population boom, together with the new highways and bridges some miles away "presumably were envisaged in the comprehensive plan," does not seem justified to me.  There is no evidence that they were so envisaged and the probabilities are strong that they were not.  The situation  [**333]  in Prince George's County is too volatile to attribute such prophetic powers to those who prepared the "comprehensive" plan.  It should be kept in mind that the Tantallon area was virgin territory and, with most of such territory in this area, was all put in the R-R area in order to cover this area with this general type of zoning restriction.  The plan was "comprehensive" only in that it covered all areas in the County.  There have been no detailed plans in this area promulgated by the County; the only detailed plan is the October 1961 development plan of Tantallon prepared by Mr. Robinson.  Then too, what physical changes occurring after the promulgation of the [***27]  "comprehensive" plan in 1957 by the County might not be said to have been "presumably envisaged" in that plan and thus be made to disappear, as it were, from consideration as subsequent changes?  There is far too much room here for the operation of subjective considerations.
Something was made of the disapproval of the R-H applications by the Technical Staff and by the Planning Commission. The Staff's report, indeed, goes so far as to say that "The staff in its review of these applications, concludes that the granting of any zone on these properties other than the existing R-R zone, would be spot zoning." (It should be kept in mind that "spot zoning" is a neutral term, neither positive nor negative in connotation, a descriptive word, and not a word of art; Hewitt v. Baltimore County, 220 Md. 48, at 57, 151 A. 2d 144, 149 (1959)). The representative of the Planning Commission, Warren Giauque, appeared before the District Council as a neutral witness.  While explaining and, at first, echoing the Staff's comment 

 [*564]  about piecemeal rezoning, a reading of later portions of his testimony reveals that he amended these sentiments significantly.  The following examination by [***28]  counsel appears to me to be pertinent:
"Q. Now, can you establish zoning by design, Mr. Giauque?
A. Not really; no.
Q. But is it possible?
A. Well, it probably is if you are dealing with a large tract of ground, when you are talking about a design of a large tract of ground for development.
Q. This is true.  That is right.  Exactly.  And cannot this be done?
A. Oh, sure.
Q. Why could not this be considered a development by design?
A. Well, what you are suggesting is that the application for the R-H zone has merit in the fact that it is a part of a larger tract of ground.
Q. Of the entire planned, well-balanced development, as we consider it.
A. In that respect it would be.
Q. All right."
Commissioner Gladys Spellman, the single Councilman who failed to concur in the granting of the R-H rezoning request, based her dissent largely on the basis of the presumed effect of the proposed apartments on the Potomac shoreline and skyline, and the deleterious effect upon the view from Mount Vernon and Fort Washington.  Secretary of the Interior Udall also expressed these sentiments in a letter to the Council which prophesied that the apartments might become "dominant." The appellant [***29]  MacDonald, a historian by profession, voiced his fear that the apartments would be "shockingly visible." But opposed to these opinions was an overwhelming mass of evidence to the effect that Secretary Udall's fears had little chance of materializing.  It was testified that the proposed luxury apartments would be some 3400 feet back from the Potomac, on the south side of Swan Creek, approximately in the center of the 650-acre parcel 

 [*565]  of land.  Indeed Councilman Sutphin stated  [**334]  he would have opposed R-H rezoning had they not been.  The apartments would be screened from view by trees, already in place, 60 feet in height, surrounded by a high ridge on the south, southwest, and southeast.  The clincher to this argument, I believe, is the example given by Mr. Robinson, the expert planner of Tantallon:
"First, as has been pointed out previously, this property is not on the Potomac River, it is a minimum of 3400 feet from the edge of the property.  It is located within an area, as I say completely surrounded by high ridges and existing trees, and it is built or proposed to be built on land that has an elevation, maximum elevation, of 40 feet.
"Now, let me give you [***30]  an example.  You may or may not be familiar with the water tower in Fort Washington, or on Fort Washington, I should say.  Now, this water tower is located on land approximately one hundred eighty feet (180) high; your tower itself is 90 feet high, which makes it approximately between 280 and 290 feet in height.  Assuming for the moment that they were to build, say, a 15-story apartment on there that would give a height of about 140 feet. In considering the elevation of the land that would give a total height of 180 feet. The top of that water tower is over 100 feet higher than these apartments, and it is barely visible at the present time.  In consideration of the fact that it is at that low altitude, I can see no detrimental effect whatsoever." (Emphasis supplied).
Even more conclusive evidence that the fears of Secretary Udall and Professor MacDonald are fanciful is the 1956 Geological Survey Map of the United States Department of the Interior bearing the legend "Mount Vernon, Md.-Va., NE/4 Indian Head 15' Quadrangle, N 3837.5 -- W 7700/7.5." This map, which is in the record, shows that while Fort Washington, about which Mr. Robinson testified, is directly visible [***31]  from Mount Vernon, across the Potomac River, Tantallon is not directly 

 [*566]  visible from Mount Vernon.  This is because the peninsula formed by Hunting Creek and the Potomac River projects in a southerly direction into the Potomac River to interrupt the view from Mount Vernon to Tantallon.  A person at Washington's Home would see Stratford on the Potomac, Potomac Valley and the Fort Hunt National Park on the jutting peninsula before he could ever see Swan Creek and Tantallon.  One only need place a ruler on the map to verify this.
I deem it unnecessary further to prolong this Part of the opinion.  See Hendlin v. Fairmount Construction Company, 8 N. J. Super. 310, 72 A. 2d 541 for a discussion of rezoning when dealing with a self-integrated tract. There was, in my view, a substantial body of evidence under the Court's own established tests, upon which to permit a rezoning to the R-H use district.  If the factors of need, of desirability, of good planning, and of beneficial effect upon the entire community -- be considered, the case for the proponents of rezoning becomes wellnigh irresistible.  This will be later considered under Part III.
Part II
It seems clear to me,  [***32]  that under our prior decisions the "mistake-change in conditions" rule is not applicable at all to the factual situation presented in this case.  The R-H zone involved in the case at bar is a residential zone compatible with existing residential zones. It has some of the qualities of the so-called "floating zone." Professor Reno of the University of Maryland School of Law describes the "floating zone" as an example of "Non-Euclidean" zoning, in his interesting and instructive article in 23 Md. Law Review, 105 entitled, "Non-Euclidean Zoning: The Use of the Floating Zone." He points out that the floating zone, which is implemented by legislative action in the nature of a special  [**335]  exception, is a new concept in zoning and frees the legislative body from the shackles of the conventional "Euclidean zone" fixed as to definite areas.  The validity of this type of "zone" has been the subject of litigation with differing results.  In Pennsylvania, for example, the Supreme Court of Pennsylvania, held that this type of zone was not within the purview of the State Zoning Enabling Act.  See Eves v. Zoning Board of Adjustment of Lower Gwynedd Township, 401 Pa. 211, 

 [*567]   [***33]  164 A. 2d 7 (1960). On the other hand, the Court of Appeals of New York sustained a floating zone permitting garden type of apartments, with adequate provisions for set backs, spacing of buildings and for a minimum 10.5 acre lot, upon application of an individual property owner and the approval of the Board.  See Rodgers v. Village of Tarrytown, 302 N. Y. 115, 96 N. E. 2d 731 (1951). We have approved the New York rule and followed and applied the Rodgers case in Huff v. Board of Zoning Appeals of Baltimore County, 214 Md. 48, 133 A. 2d 83 (1957). In Huff it appeared that Baltimore County was rezoned with 12 fixed use districts -- 6 residential, 3 commercial and 3 industrial with 1 floating industrial use district "M-R" -- Manufacturing Restricted -- which provided for a minimum size lot of 5 acres, for lot coverage of not in excess of 25%, and to be restricted to light industrial uses which would not produce noise and odors and which would not be disturbing to adjacent residences.  Permission to establish such a zone was granted (or refused) upon a petition filed by an individual property owner, with appropriate notice, etc.  A property owner, owning 18 acres of land [***34]  in a Residential Use District (R-6 for one and two family homes), applied for the rezoning of his land to M-R to erect a factory to manufacture electrical precision instruments for use in missiles.  The application was approved by the Zoning Commissioner, the Planning Commission, the Board of Zoning Appeals and, on appeal, by the Circuit Court for Baltimore County.  We affirmed, Judge Henderson dissenting.  On the subject of spot zoning (the ground on which the Planning Commission in the case at bar disapproved the application), Judge Hammond, for the majority of the Court said:
"When a zoning ordinance or an amendment puts a small area in a zone different from that of the surrounding area, we have what may be called 'spot zoning', using the term in a descriptive sense.  Such zoning may be invalid or valid.  If it is an arbitrary and unreasonable devotion of the small area to a use inconsistent with the uses to which the rest of the district is restricted and made for the sole benefit of the private interests of the owner, it is invalid.  Cassel v. City 

 [*568]  of Baltimore, 195 Md. 348, 355. On the other hand, if the zoning of the small parcel is in accord and in harmony [***35]  with the comprehensive zoning plan and is done for the public good -- that is, to serve one or more of the purposes of the enabling statute, and so bears a substantial relationship to the public health, safety, morals and general welfare, it is valid.  Offutt v. Board of Zoning Appeals, 204 Md. 551, 561; Temmink v. Board of Zoning Appeals, 205 Md. 489, 495; Ellicott v. City of Baltimore, 180 Md. 176, 183; Cassel v. City of Baltimore, supra." (p. 57 of 214 Md., p. 88 of 133 A. 2d).
In regard to whether the floating zone was compatible with the idea of a comprehensive zoning ordinance, Judge Hammond stated:

"A zoning plan does not cease to be a comprehensive plan because it looks to reasonably foreseeable potential uses of land which cannot be precisely determined when the zoning is passed.  In zoning of undeveloped areas, account can be taken of potential uses reasonably foreseeable, that is, as the Planning  [**336]  Commission put it, the undeveloped areas can be looked upon as a reservoir of future land uses." (p. 60 of 214 Md., p. 90 of 113 A. 2d).
We followed Huff and treated it as controlling in Costello v. Sieling, 223 Md. 24, 161 A.  [***36]  2d 824 (1960) by a unanimous court.  In my opinion, the Costello case cannot be distinguished from, and is controlling in, the case at bar.  In Costello three zones called "Tourist Accommodation Districts" had been created.  The T-1 district, among other uses, permitted "motels and tourist cabins and hotels." The T-2 district, among other uses, permitted a "trailer coach park." In the T-2 district a minimum lot area of 3 acres was required, a 50 foot set back for any trailer from a street or road, a 20 foot set back from any side line, and a 25 foot set back from a rear line.  The lot coverage could not be more than 50% by trailer coaches or buildings.  In 1959, the County Commissioners for Howard 

 [*569]  County upon the application of the contract purchaser of a 92-acre tract of land, zoned "R" (Residential) reclassified that tract to T-2.  The tract in question was surrounded by properties devoted to residential and agricultural uses.  The protestants owned an 878 acre farm, the principal improvements on which were located 1/2 mile from the southern end of the rezoned tract. In the proposal the applicants indicated that they would provide and maintain a water system,  [***37]  swimming pool, an auditorium and an administration building, with a fountain and a loggia for adornment.  There was testimony that existing trailer parks were inadequate to meet the needs of the community but this was contradicted by the owners of two large trailer park areas.  The expert testimony indicated, with one exception, that the establishment of the trailer park would not adversely affect surrounding properties.  The Planning Commission of Howard County recommended denial of the application on the grounds that there would be an undue concentration of occupants in a small area, it would create a greater demand for community facilities -- than would be required for the normal half-acre residential development, there would be major sewerage and water supply problems and the original zoning was much more desirable on the tract. The County Commissioners approved the reclassification, noting that the use was closely related to residential use, there was a need for the new trailer park, the surrounding properties, save one, would not be adversely affected and there would be no undue demand for county facilities.  The Circuit Court, on appeal reversed on the grounds 1)  [***38]  that the T-2 classification was not analogous to a special exception as in Huff and 2) there was no substantial evidence before the County Commissioners that there was either a mistake in the original zoning or of a substantial change in the character of the neighborhood. We reversed, holding that Huff controlled and that the "mistake-change in conditions" rule was not applicable.
Judge Horney, for the Court, stated:
"As to the principal questions, we think the principles enunciated by Judge Hammond for this Court in Huff v. Board of Zoning Appeals, 214 Md. 48, 133 A. 2d 83 (1957), are controlling here in that the granting 

 [*570]  of the trailer park classification was somewhat analogous to a special exception when applied to a former residential zone. Moreover, since the trailer park is also residential in character, it appears that the reclassification is neither incompatible nor inconsistent with the remainder of the areas in the residential district.  In these circumstances, the questions of mistake and change are not controlling." (p. 29 of 223 Md., p. 826 of 161 A. 2d).
In regard to locating the trailer park in the residential zones, Judge Horney stated:  [***39]  
"As to the propriety of locating T-2 areas in residential zones, it is apparent, since there was no unzoned land  [**337]  in the county, that the T-1 and T-2 zones must be carved out of some land use district or districts originally zoned for other purposes.  Under these circumstances, there is no doubt that if the area selected serves a public rather than a strictly private purpose, so as to exclude it from the category of illegal 'spot zoning,' and is also such that it is fairly debatable whether it is appropriate as a place for the new use, so that the placement cannot be deemed to be arbitrary or capricious, then the rezoning should be upheld.  Moreover, since the amended zoning regulations did not limit the location of a T-2 zone -- or a T-1 zone either for that matter -- to areas formerly zoned residential, the same rules as to debatability and legislative whimsicalness are likewise applicable to the placement of trailer parks in other zones. Indeed it appears that six out of seven areas zoned T-2 since the creation of the tourist accommodation classifications have been in M-1 and M-2 zones as was formerly required, but the presumption is that such placements met the [***40]  required tests.
"We are not persuaded by the argument of the protestant that the differences between the other classifications, especially the residential ones, and the newly created tourist accommodation zones, were so slight 

 [*571]  that the distinctions were meaningless.  Keeping in mind the fact that the tourist accommodation zones under attack do no more than substitute an unconventional type of housing for the conventional types usually found in a given community, we think it is clear that only slight distinctions or gradations -- if indeed any were needed other than the specially required planning of the design, layout and roads -- in the specified standards were necessary in order to establish a tourist accommodation use within the confines of any other zone." (p. 32 of 223 Md., p. 827-828 of 161 A. 2d).
The R-H zone was adopted by the Board of County Commissioners for Prince George's County on November 30, 1962.  As in Costello, the R-H zones must necessarily be carved out of districts zoned for other purposes.  The purpose of the R-H zone and the substantial restrictions applicable to it, indicate that the newly created R-H zone is compatible with existing residential [***41]  zones. It is recited in the purposes of the R-H zone that:
"It is further the purpose to provide on these sites a maximum of open space for the benefit of the residents of the development together with a minimum of obstruction to the view of those who live in the surrounding area."
The uses permitted as of right include agricultural uses, a business office in a multiple-family or multiple group dwelling, churches, convents, monasteries and other places of worship, dwellings-one-family detached, dwellings-multiple family, libraries, museums, and similar institutions of a non-commercial nature, off-street parking of private automobiles in connection with any permitted use, and publicly owned buildings, including community buildings, public parks, playgrounds and other recreational uses.  By a special exception, apartment hotels, community swimming pools for the sole use of apartment tenants and their guests, and other consistent uses may be permitted.

 [*572]  The restrictions in the R-H zone are many and stringent.  These must be a minimum lot size of 5 acres. Each lot must have a minimum lot width at the front building line of 250 feet. The minimum net lot area per dwelling [***42]  unit is provided on a graduated scale with a low of 900 square feet for 7 multi-family dwellings or less, to 1400 square feet for more than 11 but not more than 12, but it is provided that in no case shall coverage exceed 12% nor be less than 900 square feet of net lot area for each dwelling unit.
 [**338]  In regard to yards, it is provided that the minimum front, side and rear yards generally are 30 feet for buildings not more than 30 feet in height with a provision for the increase by one foot for each foot the height of the building exceeds 30 feet. Between multiple family dwellings a distance of 50 feet is required, and this distance also increases one foot for each foot the taller building exceeds 30 feet. Off-street parking is required at a rate of 1 1/4 spaces per dwelling unit, with a minimum width of 9 feet and a minimum length of 20 feet. Not less than 55% of the net lot area used for a multiple family or multiple group dwelling must be devoted to green area, as defined in the ordinance, and these green areas must be maintained in good condition.  There are restrictions on lighting to protect "adjoining residential property."
An applicant for a building permit or [***43]  a certificate of occupancy in the R-H zone is required to submit a "plan of development" to the Department of Licenses and Permits which in turn is required to submit the site plan to the Planning Board for its consideration.  The plan of development, in addition to the usual data, is required to show "the location and height of all buildings and structures, the area devoted to parking facilities and accessory buildings, all access roads and drives, the topography and major vegetation features now existing on the land, the proposed grading, landscaping and screening plans, recreation, outdoor living, and other green areas, and such other features as the applicant considers to be of importance in the evaluation of the development plan." It is required that all construction and development under any building permit shall be in accordance with the approved development plan.
It seems clear from these provisions, that the R-H zone is 

 [*573]  even more compatible with existing residential use districts than were the T-1 and T-2 trailer park zones in Costello.  It might be added that if the "floating" M-R zone in Baltimore County -- which was an industrial zone -- is sustained as [***44]  valid, without regard to the "change-mistake" rule, a fortiori, the R-H zone in the case at bar must be sustained.
It is quite apparent to me that the facts in the case at bar bring it well within the decision in Costello and the "mistake-change in conditions" rule has no application.  The lower court did consider the "mistake-change in conditions" rule, but was of the opinion that there were sufficient facts to indicate a change of conditions.  He also found that the action of the Board was supported by substantial and competent evidence and was not arbitrary, unreasonable or capricious.  His finding on the "mistake-change in conditions" issue was, in my opinion correct, but of no importance in view of the holding in Costello and his finding was clearly correct on the second issue, there being ample evidence to support the action of the Board.  Indeed there is far more evidence to support the Board in this case than there was in either Costello or Huff.  The use in this case was residential and, as indicated, was far more consistent with the existing residential use than was the trailer park in Costello and most certainly more compatible than the light manufacturing [***45]  use in Huff.
In the case at bar the uncontradicted evidence established that the density in the R-H zone after the erection of the high-rise apartment would be 1900 families as compared with 2000 families under the existing R-R zoning. In other words, there would be a decrease in density as a result of the Board's action.  The evidence showed that the luxury type of apartments would appeal to high income groups who would be retired or other persons no longer desirous of caring for and maintaining a separate home on a separate lot and raising a family.  It seems clear that not only are the number of families less in the high-rise apartments but the number of persons will undoubtedly be considerably less than would be the case if the land were developed under the existing R-R zoning.
 [**339]  Then too, the evidence established that the Tantallon tract of 655 acres was planned as a whole.  The lots in some sections 

 [*574]  range from $ 6000 to $ 7500; other lots average $ 9100.  The price of homes runs from $ 32,500 up to $ 100,000.  The income from the high-rise luxury apartments was expected to help maintain the quality of the development.  While it can continue [***46]  without this income, the quality will be reduced.  The developers spent $ 1,550,000 on the plan before beginning the first house, and the developers have evidenced an enlightened attitude toward their public responsibilities and the community welfare.  The quality of the development is established and will be maintained by comprehensive covenants.
The concept of a large residential development appealing to all economic classes in the community in which the amenities of comfortable living are enjoyed by all is a new and imaginative concept in planning. The legislative body of Prince George's County created the R-H zone to assist in promoting this new concept; it has reasonably and properly applied its legislative power in approving this application and, in my judgment, its action should be sustained.
It may be added that neither Huff nor Costello have been overruled or modified by our subsequent opinions.  Both cases have been distinguished from the situation arising in Baltimore County in regard to action by the County Board of Appeals in reclassifying land from R-6 (residential, one or two family) to R-A (residential, apartment).  See Shadynook Improvement Association  [***47]   v. Molloy, 232 Md. 265, 192 A. 2d 502 (1963), Levy v. Seven Slade, Inc., 234 Md. 145, 198 A. 2d 267 (1964), and Rohde v. County Board, 234 Md. 259, 199 A. 2d 216 (1964). Chief Judge Brune for the Court in Rohde, supra, pointed out the distinction as follows:
"The appellants also charge that the rezoning is bad as spot zoning and that there was no sufficient evidence of mistake in original zoning or of change in conditions as to warrant reclassification. They also lay stress on the fact, which is conceded, that the property can be used under its R-6 classification. That alone is not, however, an absolute bar to reclassification. Zoning is not static.  Missouri Realty, Inc v. Ramer, supra, 216 Md. at 447. It is, nevertheless, necessary 

 [*575]  to show error in original zoning or in its equivalent, comprehensive rezoning, or a subsequent change in conditions, although the change in classification be from one residential use to another (Reese v. Mandel, 224 Md. 121, 167 A. 2d 111; Levy v. Seven Slade, Inc., 234 Md. 145, 198 A. 2d 267), unless the Legislature has indicated that the new classification and the classification of neighboring property are [***48]  compatible.  See Huff v. Board of Zoning Appeals, 214 Md. 48, 57, 133 A. 2d 83, where such a new classification was analogized to a special exception, and Costello v. Sieling, 223 Md. 24, 161 A. 2d 824, where a new classification of a residential nature was superimposed upon existing residential classifications and Huff was followed; and see the comment on these cases in Overton v. Board of County Comm'rs of Prince George's County, 223 Md. 141, 150, 162 A. 2d 457." (pp. 266 and 267 of 234 Md., p. 220 of 199 A. 2d).  This distinction is also suggested by Professor Reno at pages 118-119 of 23 Md. Law Review.
Overton v. Board of County Commissioners of Prince George's County, 223 Md. 141, 162 A. 2d 457 (1960) involved a change from R-R to C-O (Commercial-office building) and did not involve the R-H zone involved in this case, or a zone similar to it.  Levitt v. Board of County Commissioners, 233 Md. 186, 195 A. 2d 723 (1963) involved a change from R-R to C-I and likewise did not involve the R-H zone or a similar type zone. Also in  [**340]  the Baltimore County cases the R-A zone is not a floating zone like M-R and hence the holding in Huff was held [***49]  to be inapplicable.  In the case at bar, however, the local legislature has indicated that the new classification and the classification of neighboring property are compatible, and hence the holding in Costello does apply and should control the decision in the case at bar on the petition seeking a reclassification of the 29.15-acre tract from the R-R zone to the R-H zone. I would affirm the order of the lower court sustaining the District Council's approval of the petition, subject to my comments in Part IV, infra.

 [*576]  Part III
The majority states, in effect, that rezoning can only be sustained when there is "strong evidence of mistake" in the original zoning or where there is "a substantial change in conditions" in the neighborhood. This "mistake-change in conditions" rule came into the Maryland law by way of dicta of our predecessors and in a rather oblique way.  The "change in conditions" concept seems to be first stated, without any supporting authority, in Northwest Merchants Terminal v. O'Rourke, 191 Md. 171, 60 A. 2d 743 (1948). It was repeated in a restricted form in Cassel v. Baltimore, 195 Md. 348, 358, 73 A. 2d 486, 488 (1950). This dictum [***50]  was then expanded by additional dicta in Kracke v. Weinberg, 197 Md. 339, 79 A. 2d 387, 391 (1951) which added "mistake in original zoning" to a "change in the character of the neighborhood" -- and so the Maryland Rule of "mistake-change in conditions" was born.  It was entirely judicially conceived and delivered.  It had no legislative assistance.  It has had a rapid n3 and, to my mind, unhealthy growth  [**341]  in the 

 [*577]  Maryland law.  The formulae have become talismanic phrases now applied with Draconian severity to the rezoning efforts of the local legislative bodies, with unfortunate results.  In my opinion, the time to re-examine the entire doctrine and its premises is long overdue.  As it is entirely "judge-made," a change 

 [*578]  in, or broadening of, the doctrine would operate only prospectively and would in no way impair vested rights, inasmuch as it is not a rule of property.  Under these circumstances, the doctrine of stare decisis is not a substantial obstacle in effecting a much-needed change.  If my Brethren are reluctant to overrule or modify the "mistake-change" doctrine, I suggest with great respect, that the Legislative Council and ultimately [***51]  the General Assembly give serious thought to a change by appropriate legislation.

n3 There have been at least 50 decisions of the Court involving this rule during the 12 year period 1953 to 1965.  See Wakefield v. Kraft, 202 Md. 136, 96 A. 2d 27 (1953); Zang & Sons v. Taylor, 203 Md. 526, 102 A. 2d 723 (1954); American Oil Co. v. Miller, 204 Md. 32, 102 A. 2d 727 (1954); Baltimore v. Cohn, 204 Md. 523, 105 A. 2d 482 (1954); Offutt v. Board of Zoning Appeals of Baltimore County, 204 Md. 551, 105 A. 2d 219 (1954); Temmink v. Board of Zoning Appeals for Baltimore County, 205 Md. 489, 109 A. 2d 85 (1954); Zinn v. Board of Zoning Appeals of Baltimore County, 207 Md. 355, 114 A. 2d 614 (1955); Schiff v. Board of Zoning Appeals of Baltimore County, 207 Md. 365, 114 A. 2d 644 (1955); Serio v. Baltimore, 208 Md. 545, 119 A. 2d 387 (1956); Hedin v. County Commissioners of Prince George's County, 209 Md. 224, 120 A. 2d 663 (1956); Kroen v. Board of Zoning Appeals of Baltimore County, 209 Md. 432, 121 A. 2d 181 (1956); Eckes v. Board of Zoning Appeals of Baltimore County, 209 Md. 432, 121 A. 2d 249 (1956); Hardesty v. Board of Zoning Appeals of Baltimore County, 211 Md. 172, 126 A. 2d 621 (1956); Temmink v. Board of Zoning Appeals of Baltimore County, 212 Md. 6, 128 A. 2d 256 (1957); Mettee v. County Commissioners of Howard County, 212 Md. 357, 129 A. 2d 136 (1957); Nelson v. County Commissioners for Montgomery County, 214 Md. 587, 136 A. 2d 373 (1957); Board of Zoning Appeals of Baltimore County v. Bailey, 216 Md. 536, 141 A. 2d 502 (1958); Muhly v. County Commissioners of Prince George's County, 218 Md. 543, 147 A. 2d 735 (1958); Baylis v. Baltimore, 219 Md. 164, 148 A. 2d 429 (1959); Fallon v. Baltimore, 219 Md. 110, 148 A. 2d 709 (1959); McBee v. Baltimore County, 221 Md. 312, 157 A. 2d 258 (1960); Baltimore v. N.A.A.C.P., 221 Md. 329, 157 A. 2d 433 (1960); West Ridge, Inc. v. McNamara, 222 Md. 448, 160 A. 2d 907 (1960); Overton v. Board of County Commissioners, 225 Md. 212, 170 A. 2d 172 (1961); Didlake v. Poteet, 228 Md. 588, 180 A. 2d 828 (1962); Scheydt v. Pratt Properties, Inc., 229 Md. 31, 181 A. 2d 464 (1962); Town of Somerset v. Montgomery County, 229 Md. 42, 181 A. 2d 671 (1962); DeBlasis v. Vestry of Addison Parish, 229 Md. 530, 184 A. 2d 840 (1962); England v. Rockville, 230 Md. 43, 185 A. 2d 378 (1962); George F. Becker Co. v. Jerns, 230 Md. 541, 547, 187 A. 2d 880 (1963); Anne Arundel County v. Fairwinds Beach Club, Inc., 230 Md. 569, 187 A. 2d 845 (1963); Alvey v. Michaels, 231 Md. 22, 188 A. 2d 293 (1963); Shadynook Improvement Ass'n. v. Molloy, 232 Md. 265, 192 A. 2d 502 (1963); Furnace Branch Land Co. v. Anne Arundel Co., 232 Md. 536, 194 A. 2d 640 (1963); Elliott v. Joyce, 233 Md. 76, 195 A. 2d 254 (1963); Levitt & Sons, Inc. v. Board of County Commissioners of Prince George's County, 233 Md. 186, 195 A. 2d 723 (1963); Montgomery County v. Ertter, 233 Md. 414, 197 A. 2d 135 (1964); Levy v. Seven Slade, Inc., 234 Md. 145, 198 A. 2d 267 (1964); Jacobs v. County Board of Appeals, 234 Md. 242, 198 A. 2d 900 (1964); Rohde v. County Board of Appeals of Baltimore County, 234 Md. 259, 199 A. 2d 216 (1964); Greenblatt v. Toney Schloss Properties, Inc., 235 Md. 9, 200 A. 2d 70 (1964); Lee v. County Board of Appeals, 235 Md. 38, 200 A. 2d 159 (1964); Board of County Commissioners v. Levitt & Sons, 235 Md. 151, 200 A. 2d 670 (1964); Toomey v. Gomeringer, 235 Md. 456, 201 A. 2d 842 (1964); Marcus v. Montgomery County Council, 235 Md. 535, 201 A. 2d 777 (1964); Jobar Corp. v. Rodgers Forge Community Ass'n., 236 Md. 106, 202 A. 2d 612 (1964); Kaslow v. Mayor & Council of Rockville, 236 Md. 159, 202 A. 2d 638 (1964); DePaul v. Board of County Commissioners of Prince George's County, 237 Md. 221, 205 A. 2d 805 (1965); Pahl v. County Board of Appeals of Baltimore County, 237 Md. 294, 206 A. 2d 245 (1965); Greenbelt v. Jaeger, 237 Md. 456, 458, 206 A. 2d 694, 695 (1965); Dal Maso v. Board of County Commissioners of Prince George's County, 238 Md. 333.

 [***52]  
Let us examine the syllogisms upon which this "change-or-mistake" rule rests.  As I see them they are:
Major premise: The comprehensive zoning plan was a good plan when enacted; the plan is good today, if physical conditions have not changed.
Minor premise: Physical conditions have not changed.
Conclusion: The plan is good today.
The "mistake" part of the "change-or-mistake" rule is founded on another such syllogism, equally grim, which goes like this:
Major premise: Today's plan is a good plan, but differs from the original plan; if physical conditions have not changed, the original plan must have been bad.
Minor premise: Physical conditions have not changed.
Conclusion: The original plan must have been bad.
The difficulty lies in the dependence upon the terms "good" -- "bad" -- "conditions", and the interpretation to be placed on each.  Or, to put the matter a different way, the defect may lie in confining the term "conditions" to the connotation of "physical conditions." n4 As a cursory glance at the Index  [**342]  to Legal Periodicals and to other compilations of journal topics will show, the ideas of planning and zoning, for the modern urban 

 [*579]  complex, have [***53]  come a long way since that day in 1926 when Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S. Ct. 114, 71 L. ed 303 (1926) first upheld the idea and practical application of zoning. See Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154.

n4 Rathkopf attempts to reconcile the Maryland rule with the prevailing view by re-defining the terms "change" and "mistake" to give them more stretch: "The term 'changed conditions' need not relate to actual physical conditions already present; it may relate to social or economic conditions reasonably forseeable and presently or potentially operating upon the community.  The term 'mistakes in the original ordinance' may refer to a failure to foresee as well as to an actual then present error of classification or boundary." (RATHKOPF, section 27-19).

In his article referred to above, Professor Reno tells us:
"Since World War II, city planners have revised some of their major premises upon which the early zoning ordinances have been based.  With [***54]  the development of the urban sprawl around the large cities, the need for neighborhood shopping centers in residential areas is now recognized.  Likewise, the development of garden apartments has weakened the argument that multiple dwellings are a discordant influence in a single family dwelling area.  In addition, many types of light industry, involving no noise, odor or smoke, can be conducted in a residential area without infringing upon the peace or quiet of the neighborhood. With the rising tax rate in these suburban areas, the attraction of these light industries into the suburban area becomes financially desirable" (at page 106).
The "change-or-mistake" rule derived from the syllogisms above set forth is rendered erroneous by the simple truth: "Ideas change."
In my opinion, the correct rule in considering the validity of rezoning ordinances is whether or not the ordinance is unreasonable, arbitrary or capricious.  We have stated this as the applicable rule.  See Muhly v. County Council for Montgomery County, 218 Md. 543, 546, 147 A. 2d 735, 738 (1958). Ellicott v. Baltimore, 180 Md. 176, 184, 23 A. 2d 649 (1942). n5

n5 In Ellicott it was pointed out by our predecessors that the ordinance rezoning a lot of 100 feet by 125 feet at Cold Spring Lane and Greenspring Avenue in Baltimore City from a Residential to First Commercial zone so that a filling station could be erected, was not unreasonable, arbitrary or capricious as the City Council could reasonably have thought that the establishment of the proposed filling station filled a public need at that location.

 [***55]  
There is a strong presumption in favor of the reasonableness of a zoning ordinance, but we have indicated that this presumption of reasonableness does not apply with the same weight or "with as great force" to a rezoning ordinance. See Mettee 

 [*580]  v. County Commissioners of Howard County, 212 Md. 357, 366, 129 A. 2d 136 (1957) and cases cited there beginning with N. W. Merchants Terminal v. O'Rourke, supra.  In my opinion, the presumption of reasonableness is just as strong in support of the rezoning ordinance as it was in support of the original zoning ordinance. This seems to be the general rule.
In Bartlett v. Middletown Township, 51 N. J. Super. 261 quoted in 1 Rathkopf, The Law of Zoning and Planning, 27-14 (n. 22), the court said:
"Plaintiffs' argument proceeds on the basis that there was a presumption running in favor of the zoning ordinance as it stood before the amendment, and this 'existing presumption' of validity had to be overcome before it could be said that there was a 'subsequent presumption' in favor of the amendatory ordinance. The short answer to this is that the presumption of validity attending the original ordinance must give way to [***56]  the presumption of the correctness of the amendatory ordinance. The Legislature not only conferred upon municipalities the power to adopt zoning ordinances, but also the power to amend, change, modify, or repeal them, and to change the boundaries of districts from time to time, provided that the amendatory ordinance should first have been submitted to the planning board and been  [**343]  approved by it.  N.J.S.A. 40: 55-35.  Some of the cases we have referred to in discussing the presumption of validity that attaches to local zoning legislation, dealt specifically with amendments or supplements to original zoning ordinances [citing cases]."
Rathkopf notes that the Maryland cases sometimes emphasize the presumption of validity of rezoning and sometimes emphasize the exception, which states that the presumption of reasonableness applied "though not with as great force." After reviewing the Hardesty case and the Wakefield case (Section 21-36 to 21-38) he concludes that the Maryland cases "clearly indicate the weakness of any presumption with respect to the validity 

 [*581]  of the amendatory ordinance." Coupling this with our "change-or-mistake" rule, he concludes:  [***57]  
"If such proof must appear, very little 'presumption' in favor of the rezoning would appear to remain in such states beyond the collateral rule that where the issue is debatable the courts will not substitute their judgment for that of the legislative body.
"The Maryland rule would appear to be a limitation upon the power of the legislative body to rezone rather than a strict rule of presumption." (p. 27-16).
In most states, he says, the presumption of validity applies to rezoning, "without comment or disparity as to its weight" (p. 27-14).  If the relation of the rezoning ordinance to the public health, safety, security, morals or general welfare is "fairly debatable" the ordinance must be sustained.  See Euclid v. Ambler Realty Company, supra at page 388 of 272 U.S.; Montgomery County Council v. Scrimgeour, 211 Md. 306, 316, 127 A. 2d 528 (1956); County Commissioners of Anne Arundel County v. Ward, 186 Md. 330, 46 A. 2d 684 (1946).
It is also clear that if there is a mistake in the original zoning or if there has been a change in the physical conditions in the neighborhood of the area affected by the rezoning ordinance, its reasonable relationship to the police [***58]  power is obviously "fairly debatable" and the ordinance must be sustained.  But the "mistake-change in physical condition" rule should not be an exclusive test.  While, of course, an amendment is often predicated upon the recognition of changing conditions or of a mistake in original zoning (see Oka v. Cole, infra), such factors, while relevant, are not controlling, and are among many circumstances for the Council to weigh and evaluate (see Raymond v. Commissioner, infra).  Similarly, reviewing courts should consider the presence or absence of such factors merely as some evidence tending to show whether or not the action of the Council, in granting or denying a proposed reclassification, was arbitrary, unreasonable, or capricious.  The majority has now made the rule the exclusive test and has confined the "change in conditions" portion of the rule to a change in physical conditions.  Herein lies the error.  As above indicated, ideas 

 [*582]  change.  They particularly change in considering zoning reclassifications in a volatile situation and particularly in an area of rural virgin territory in the process of change to urban or suburban development.  The syllogisms [***59]  of the "mistake-change in condition" rule applied by the majority give no place to these new ideas.  As I see the matter, it is entirely possible that the original zoning viewed in the light of conditions existing at the time of the formulation of the original comprehensive plan might have been proper and in accordance with the then recognized zoning concepts, and, with no change in physical conditions in the meantime, a new subdivision, prepared in accordance with more modern and more enlightened zoning ideas, be proper a relatively short time later.  If we broadened our perspective and raised our sights in the "change in conditions" portion of the rule to include changes in zoning concepts and philosophy and did not limit it to a change in physical conditions merely, the problem would be largely solved.  The people's representatives  [**344]  would then be free to give effect to the new ideas and concepts; they would arise from the present Procrustean bed upon which we have placed them, with renewed vigor, to advance the public interest.  The case at bar is an excellent example of the unfortunate effect of the presently restricted rule.
As I view the testimony in this case, it [***60]  shows that the development of Tantallon-on-the-Potomac is needed, is desirable, and is in the public interest -- or that the District Council could permissibly so find.  Mr. Robinson, the expert planner in charge of the Tantallon development, whose extraordinary qualifications as a planner have already been set forth, and whose qualifications as an expert were accepted without cross-examination, made this intial statement:
"First, let me say this has been a real opportunity to be able to work on a project like this, because not very often is it possible for a developer near a large incorporated area to assemble this much acreage that would permit planners to do what they dream about doing.  This is exactly what we have been able to do here.  ***
"Now, when we go into an area like this that is 

 [*583]  completely virgin -- it hasn't been touched -- with numerous trees and interesting terrain, water, it offers many types that we don't get.  ***
"Let me point out that the project encompasses roughly 650 acres of land.  Within that project we are setting forth on a permanent basis 170 acres for a golf course, which is integrated throughout the community.  It isn't set aside [***61]  in one portion of the area, it is integrated through the entire residential portion of the project.  We, therefore, created the maximum effect of greenbelt areas on the adjoining residential areas.  ***
"Now, in addition to that fact, we have 40 acres of marina or water space; and then in addition to the proposed apartment project, we have in addition, perhaps, maybe 15 or 20 acres of open space because, naturally, you are not covering all of that land with apartment buildings.  So, therefore, we have a total of approximately 230 acres of land which will never be utilized, it will never be disturbed, it will be left in its natural state, and this 230 acres of land amounts to about one third of the entire project."
Further testimony indicated that some of this 650-acre tract will be devoted to lots averaging about $ 9,500 in cost each; some of it will be devoted to residences in a range from $ 32,000 to $ 100,000 each; a 29-acre tract will be set aside for luxury apartments. As Mr. Robinson testified, approximately 1/3 of the land will be devoted to a scenic greenbelt area.  There will be a 10-acre site for a schoolhouse (the Board of Education has already accepted the site [***62]  for this purpose) -- a site incidentally which was sold to the Board of Education at approximately 1/3 to 1/2 of the actual cost of Isle of Thye Land Company.  There will be waterways (40 acres), a marina, a country club; there will be a shopping center on the easterly side.  Other aesthetic considerations have been alluded to in Part I of this opinion.  When asked if there were any covenants which would guarantee the community that Isle of Thye would complete the project as planned, if the District Council granted its zoning requests, 

 [*584]  Mr. Triska, the president replied, "This is the most comprehensive covenant ever prepared in Washington.  If this won't do it, then nothing else will." The evidence showed that at least $ 2,000,000 have already been invested in Tantallon, "including $ 1,550,000 before we poured the first foundation." Present in the record is also that rare phenomenon: testimony by nearby citizens and citizens' groups in favor of the requested high-rise apartment zoning. Mr. Anderson, president of Broadcreek Citizens Association, told the council that "the majority of the members who are close to the project would be in favor of it." The  [**345]   [***63]  seven standards by which this group of local residents judged any new development project and their opinion of the manner in which Tantallon comes up to these standards, will repay close reading.  This witness noted that "at no time has the developer tried to hide his intentions regarding *** the apartments" and concluded: "All I wish to say is that the Broadcreek Citizens Association is proud of the Tantallon Development and we feel it will materially improve Prince George's County." Enormous amounts of labor, as well as money, have already been sunk into the project.  "Approximately 40 acres of swamp were drained, half a million cubic yards of earth moved in and the water squeezed out of the swamps, and the drainage channels created to rectify the storm drainage problem * * *" Even Mr. MacDonald, the leader of the opponents of the proposed rezoning, confessed: "I admit there are many very, very attractive aspects of that plan." Mrs. Spellman, the lone Councilman dissenting from the grant of the rezoning as requested, noted that the community was "well planned and well balanced." In summary, the evidence taken as a whole amply appears to justify the sentiments of Mr. Robinson: "As [***64]  a professional planner we have an opportunity very seldom to be able to create something as tremendous as this project will be, and with the opportunities in the form of recreational facilities, greenbelt areas and well balanced community, it would undoubtedly, in my opinion, (be) one of the outstanding projects in the United States * * *"
Let us assume for the argument that every good thing said about Tantallon on the last several pages, is true.  Let us go further and assume that Tantallon is a 20th-century Garden of 

 [*585]  Eden on the shores of the Potomac.  Even then, under today's decision the District Council would nonetheless have to deny the application for rezoning, because the proponents had not proved the elements essential to reclassification under the present "change-or-mistake" rule.  Such a decision exalts to quasi-constitutional status the original zoning plan of any given locality, and seems to me to fly in the face of our rule that a legislative body cannot curtail freedom of choice for its successors.  (In the Donohoe case, infra, we applied this doctrine to this very Subtitle of the Prince George's County Code.  There it was argued that because the [***65]  Legislature had originally created the Maryland-Washington Regional District by a special bi-county Act, it could not legislate further on the subject by way of a public local law.  We rejected the argument on the theory that the legislature in 1943 could not provide that all future legislation dealing with the Regional District must be by bi-county acts rather than public local laws, even if it wanted to).
Furthermore, this approach seems to imply that all good ideas worth having, about zoning in the section of the Regional District lying within Prince George's County, occurred in 1957.  That all wisdom does not come in a blinding flash of revealed truth, in a single moment of time, is excellently made manifest by this very case.  We are talking about R-H zoning; yet, prior to 6 weeks before the hearing of this case before the District Council, there was no such category as R-H zoning in existence.  A would-be apartment builder was forced to apply for R-10 zoning (as the Tantallon developers originally did here).  A special way of dealing with large apartment projects was felt to be desirable; that the change was for the better will become clear from a scanning of the R-10 provisions [***66]  with the R-H provisions of the law.  The "change-or-mistake" approach also seems to me to ignore a marked shift in emphasis in zoning: as Judge Henderson once pointed out, n6 the aim of zoning in 

 [*586]   [**346]  areas where zoning is being tried for the first time, is to hold the line against undesirable encroachments in established communities.  The outlying hinterland areas of such governmental units were included in the master plan; but the zoning was "comprehensive" only in the sense that every square inch of territory within the political subdivision had some kind of zoning on it.  The modern emphasis, on the other hand, looks toward orderly planning of virgin territories, of areas whose development may yet be years in the future.  And, the "change-or-mistake" approach penalizes the conscientious developer -- as this case illustrates.

n6 See Zinn v. Board of Zoning Appeals, 207 Md. 353, 359, 114 A. 2d 614 (1955): "The initial zoning plans were probably more concerned with holding the line in established communities than with the projected development of new ones, and the regulations were comprehensive only in the sense that some space was provided for the broad categories of land use and that the entire area was included in the terms of the ordinance. See Reps, The Zoning of Undeveloped Areas, 3 Syracuse L. Rev. 292, 294." See also Russell R. Reno, Non-Euclidean Zoning: The Use of the Floating Zone, 23 Md. L. Rev. 105, 107 (1963), especially page 107 where he says: "*** (M)ost planning commissions realize, that although they have the technical advice sufficient to select an area suitable for shopping centers, multiple dwellings and light industry, they lack the coercion needed to induce the development of such areas.  For this reason the tendency of planning commissions is to wait until an actual demand for a reclassification of a specific tract has developed.  This raises the issue as to whether reclassification of a single tract can be justified as within the comprehensive plan for the entire community."

 [***67]  
Another reason for upholding the action of the legislative body here is that it is a legislative body, and not a mere administrative organ.  Zoning and rezoning is legislative in character; it is not quasi-judicial, administrative, quasi-legislative, quasi-executive, or anything other than legislative.  Rathkopf, The Law of Zoning & Planning (3d ed.), Section 27; Yokley, Zoning Law & Practice (2d ed.), Section 83, and cases collected therein; 101 C.J.S. Zoning, Section 1 and cases cited.  In the Levitt case, supra, one finds this statement:
"We have repeatedly held that the action of zoning or reclassification of zoning is a function that is legislative in nature.  However, this does not prevent the Council from making administrative findings of fact, drawing administrative inferences, and arriving at administrative conclusions and decisions, when hearing an application for rezoning, and the statute clearly anticipates 

 [*587]  such action.  Cf. County Council v. Egerton, 217 Md. 234 1 Am. Jur. 2d, Administrative Law, §  92.  After making its administrative findings of fact, etc., the Council is then in a position to exercise its legislative [***68]  function of granting or denying the petition for reclassification."

It is not clear to me what this statement means, and while having read the case and American Jurisprudence section referred to, I can find no comfort in them.  In certain counties zoning and rezoning is exclusively a function of the local legislative body. In other counties, such as Baltimore County, (Regulations sec. 500.3), n7 that function is delegated to a zoning commissioner or to a zoning board of appeals.  To say, however, that the District Council here is anything other than a legislative body is to mistake the creator for the creature.  In dealing with such bodies the controlling question is "whether such establishment of a *** district bears a reasonable relation to the public health, safety, or welfare so as to justify the regulation inhering therein." Hadley v. Harold Realty Company, 198 A. 2d 149, rearg. den. 199 A. 2d 121 (R. I. 1964). In dealing with administrative bodies, on the other hand, the controlling questions are not only whether they have acted constitutionally  [**347]  (whether their actions bear a rational relationship to the ends sought to be promoted) but whether they have [***69]  observed the substantive standards and procedural safeguards laid down by the legislative body when it delegated legislative power to them.  It may delegate too much.  See Davis, Administrative Law Text, section 2.09; cf. discussion in Pressman v. Barnes, 209 Md. 544, 121 A. 2d 816 (1956). The true situation, then, is not that the District Council was wearing an administrative hat here; but that administrative officers and boards in counties where they have power to reclassify (e.g., Baltimore County) are wearing a legislative hat pro hac vice.  Therefore, even if it could be argued that an administrative official (or officials) must observe the "change or mistake" rule, because it must be subservient 

 [*588]  to the legislature's policy, the legislative body, contrariwise, should be able to adopt a "change-mistake-need and desirability" rule, simply because it is a local legislature, and its "classification as (to) the means for attaining a permissible end is not to be declared invalid if any state of facts reasonably can be conceived that would sustain it," and "due regard must be accorded to the collective judgment of those familiar with the locality and the circumstances [***70]  prevailing in the town." Raymond v. Commissioner of Public Works of Lowell, 333 Mass. 410, 131 N. E. 2d 189 (1956).

n7 "Any such reclassification when granted by the Zoning Commissioner shall, in the absence of an appeal, have the force and effect of law."

Curiously enough, the proposition that overwhelming public needs and desires may sometimes justify a rezoning, even in the absence of a change in the character of the neighborhood or a mistake in the original zoning ordinance, has received at least tacit, limited recognition by the Court itself, in its approval of the Council's reclassification of the two smaller tracts from an R-R zone to a C-2 (heavy commercial) zone. (The C-2 zone is, of course, a much more intensive use than the R-H zone, which the Court has today struck down).  The majority opinion does not pretend to find a "change" or "mistake" but nonetheless holds that "the issues as to these requests were fairly debatable." I submit that the only evidence before the District Council which might [***71]  justify its decision to grant the proposed C-2 reclassification, is that relating to public need, accommodation, and convenience.
It will be remembered that the Planning Commission disagreed with the recommendation of its Technical Staff and recommended approval by the District Council of the two requests for the C-2 zone. The written report of the Commission to the Council is couched exclusively in terms of need and desirability:
"The members of the Board disagree with the recommendation of the technical staff with respect to Zoning Applications Nos. A-4470 and A-4479.  These applications request the reclassification of two tracts of land on opposite sides of Swan Creek, south of Swan Creek Road, from the R-R to the C-2 zone. The applicant has indicated that he desires this zoning for the purpose of constructing a marina and restaurant.  

 [*589]  And the preliminary development plan for the applicant's entire tract discloses that the establishment of a marina is an essential element in this plan.
"In the absence of a special zoning classification covering marinas, it is the Board's considered opinion that the subject properties should be reclassified to the C-2 zone to [***72]  permit construction of the proposed facilities.
"The Board feels that the subject properties are ideal locations for a marina and restaurant and, further, that such proposed uses would be in keeping with the low-density pattern of development proposed in the Preliminary General Plan for this area.
"For these and other reasons in the general public welfare, and on motion duly made, seconded and carried, the Board recommends to the District Council that Prince George's Zoning Amendment Applications No. A-4470  [**348]  and A-4479 be APPROVED for the C-2 zone."
The only testimony in the case dealing with the proposed marina and restaurant (as opposed to the proposed apartment project) was that of the witness Charles A. Chaney.  A text-writer on the design, engineering, and planning of marinas, he testified that the need in the metropolitan Washington area for boating facilities was particularly acute: "We have now about 2,800 respectable slips in which to put our 16,000 boats, meaning that the Washington area is worse off than the majority of the country when it comes to the housing of this popular recreational means." He testified that the marina proposed for Swan Creek could [***73]  possibly be constructed within the existing rural residential zone, under a special exception to the R-R classification. However, he testified that a C-2 zone would authorize the construction of more facilities desirable from the point of view of the boating enthusiast, such as a parts and accessories warehouse, a facility for major repairs, and gasoline and lubrication facilities.  Mrs. Spellman, the dissentient Councilman, disagreed with the reclassification to the C-2 zone, but was willing to go along with a C-1 zone (a lighter commercial use).

 [*590]  The Maryland change-or-mistake rule is now breaking down under the renewed critical analysis of the high courts of our sister states.  In Gruber v. Mayor and Township Committee of Raritan Township, 39 N. J. 7, 186 A. 2d 489 (1962), Justice Jacobs for the New Jersey Supreme Court said:
"The comprehensive plan evidenced in the original zoning ordinance was not immutable and could reasonably be altered either because of changed circumstances, or because of changed viewpoints as to the needs and interest of the entire community." (p. 494 of 186 A. 2d).  (Emphasis added).
The views of the Township Planning Commission [***74]  embraced by the Supreme Court of Pennsylvania in its opinion in Furniss v. Township of Lower Merion, 412 Pa. 404, 194 A. 2d 926 (1963), are so instructive in this connection (and the Court's opinion so short, incisive, and amenable to common sense) that I have considered it my duty to set this gem out in full; it follows:
"Bell, Chief Justice.
"Neighboring property owners petitioned the Court of Common Pleas of Montgomery County to declare an ordinance invalid because the permit for an apartment house constituted ad hoc rezoning of 40 acres, and because it constituted a flagrant violation of the applicable Township Comprehensive Plan especially in regard to the density of population as set forth in the plan.  The Planning Commission made the following apt statement:
"'*** a word should be said with respect to a misunderstanding which frequently arises in connection with the adoption of any comprehensive Plan for the Township.  The thought has often been expressed that, once a Plan has been approved, all difficulties are eliminated.  The answer to this is that no comprehensive Plan is perfect; it cannot possibly envisage all problems which will face the community in the [***75]  future.  To preserve the value and overall integrity of any 

 [*591]  Plan there must be a constant review of it by the governmental authorities and their established agencies, having regard at all times, however, to the general objectives which have been determined.  A Plan cannot remain static and at the same time be realistic, because the forces of growth, economic conditions, character and distribution of population and the technique of planning are constantly in motion.' (all emphasis supplied).
"It is a matter of common sense and reality that a comprehensive plan is not like the law of the Medes and the Persians; it must be subject to reasonable  [**349]  change from time to time as conditions in an area or a township or a large neighborhood change.  Notwithstanding the able argument of appellant, we find no error of law or clear abuse of discretion.
"Order affirmed."
All of this may well be said of the 1957 Plan in Prince George's County.
In Oka v. Cole, 145 So. 2d 233 (Fla. 1962) the Supreme Court of Florida stated, in a four-to-three decision reversing the district court:
"Fundamental to the district court's conclusion is the assertion that an amendatory [***76]  ordinance is unauthorized in the absence of a change in character and use of an area intervening between enactment of a comprehensive zoning plan and an attempted change or amendment.  While such change is often the predicate for an amendment, we find no authority in our decisions or elsewhere to the effect that it is indispensable, that vested rights can accrue to neighboring owners, or that ordinances altering zoning restrictions are to be tested by any standard other than that applicable to zoning classification generally, i.e., that the restriction imposed shall not be arbitrary but reasonably related to the public health, safety, or welfare." (p. 235 of 145 S. 2d).

 [*592]  This decision was followed by the district court in Chadwick v. Layton, (D. Ct. of App., 1963, Allen, J.), 150 So. 2d 485 (Fla.1963).
The Supreme Judicial Court of Massachusetts takes the same view.  In Raymond v. Commissioner, supra, it said:
"The petitioners stress that there have been few changes in the neighborhood since 1926 when the zoning ordinance was adopted.  Such a factor, while relevant, is not controlling.  It was one of several circumstances for the council to weigh [***77]  and evaluate." (p. 191 of 131 N. E. 2d).

An even flatter statement was later made by that same court.  In Cohen v. City of Lynn, 333 Mass. 699, 132 N. E. 2d 664 (1956), Justice Whittemore for the Court said:
"It was appropriate in considering a zoning change to view the city as a whole [citing cases].  It is not necessary to find a substantial change in the locus to support a change in its zoning classification. See Lamarre v. Commr. of Public Works of Fall River, 324 Mass. 542, 547, 87 N. E. 2d 211; Raymond v. Commr. of Public Works of Lowell, 333 Mass. 410, 131 N. E. 2d 189." (p. 667 of 132 N. E. 2d).

Furthermore, the court refused to hold:

"*** as a matter of law that the particular restrictions of the new type zone were not at least as reasonably suited to the subject area as the superseded restrictions.  Conceivably, the city council could have believed they were on the whole more suitable." (Emphasis added).  (Ibid.).
To consider the converse of the case at bar (apartment zoning denied in pursuit of a well-balanced community), compare the statement of Chief Justice Weintraub in Fanale v. Borough of Hasbrouck Heights [***78]  , 26 N. J. 320, 139 A. 2d 749 (1958):
"Hence, although apartment houses were initially desirable, a municipality may later conclude that more 

 [*593]  of them would be inimical to its total welfare.  *** It may change its ordinance in pursuit of a well-balanced community." (p. 752 of 139 A. 2d).
The case of Kozesnik v. Montgomery Township, 24 N. J. 154, 131 A. 2d 1 (1957) is equally instructive:
"The comprehensive plan embraced by an original zoning ordinance is of  [**350]  course mutable.  If events should prove that the plan did not fully meet or anticipate the needs of the total community, amendments may be made, Hochberg v. Borough of Freehold, 40 N. J. Super. 276, 123 A. 2d 46 (App. Div. 1956), and if the ordinance as thus amended reveals a comprehensive plan, it is of no moment that the new plan so revealed differs from the original one." (Emphasis added) (p. 8 of 131 A. 2d).
The Supreme Court of Rhode Island in the Hadley case, supra, was faced with a statute purporting to grant unto the local legislative body power "from time to time to amend or repeal any such ordinance and thereby change such regulations or districts." The court [***79]  expressed its point of view in these terms:
"We cannot agree, however, that the comprehensiveness contemplated in our enabling act either proscribes basic changes in the regulations contained in an ordinance or precludes such revisions thereof as contemporary circumstances and conditions may from time to time require.  *** Because of the provisions thus noted, it is our opinion that the phrase 'comprehensive plan' was not intended to preclude change and preserve inviolate use districts established in an original zoning ordinance, but that it contemplates revision and change in the regulations to whatever extent that may be accomplished by a valid exercise of the police power delegated to the local legislature." (All emphasis supplied).  (p. 152 of 198 A. 2d).
"The controlling question is not whether the amendment violates the comprehensive plan of the instant 

 [*594]  ordinance in that it establishes a business district on land lying more than 300 feet from an arterial highway, but whether such establishment of a business district bears a reasonable relationship to the public health, safety, or welfare so as to justify the regulation inhering therein." (p. 153 of [***80]  198 A. 2d).
Kentucky takes the same tack.  In Leutenmayer v. Mathis, 333 S. W. 2d 774 (1960), Commissioner Cullen stated:
"The determination having been made that this is not a spot zoning case, it is not necessary, in order to uphold the ordinance that there have been a showing of a change of conditions, since the enactment of the original comprehensive zoning ordinance [citing cases].  It is sufficient that the ordinance bears a reasonable relation to the general welfare and to an orderly plan of zoning development." (p. 776).
Just this past year, Chief Justice Bell of the Supreme Court of Pennsylvania wrote an able opinion expressing with precision my views concerning the flexibility to be permitted the legislative body when considering applications for rezoning; he said, for the court:
"A comprehensive plan does not contemplate or require a 'master plan' which rigidly provides for or attempts to answer in minute detail every possible question regarding land utilization or restriction.  Neither a zoning ordinance nor a comprehensive plan is absolutely rigid, static and unchangeable; either or both may be amended, supplemented, changed, modified, or repealed [***81]  -- in the sound discretion of the legislative body and in accordance with statutory or other pertinent legal and Constitutional requirements -- as conditions or changing circumstances may require."

Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A. 2d 408 (1964).
The situation in the State of New York is a fascinating example of the growth of the law as declared by the common-law 

 [*595]  courts.  In Hyde v. Incorporated Village  [**351]  of Baxter Estates, 140 N. Y. S. 2d 890 (1955), affd. 2 A. D. 2d 889 (1956, mem.) affd. 3 N. Y. S. 2d 873 (1956, mem.), Justice Hogan, sitting in the Supreme Court, Special Term, invalidated an amendment to the Baxter Estates zoning ordinance, both on constitutional grounds and on the ground that rezoning was not lawful absent a showing of mistake in original zoning or a change in the conditions of the neighborhood. In adopting the Maryland Rule, he said:
"The courts of sister states, in dealing with just such situations, have adopted a rule of property that before property is rezoned there should be proof either that there was some mistake in the original zoning or that the character of the neighborhood had undergone  [***82]   such a substantial change as to warrant reclassification (italics in original).  In Temmink v. Board of Zoning Appeals, 109 A. 2d 85, 87, the Court of Appeals of Maryland said: [here follows an extensive quotation from Temmink].
"See also Caputo v. Board of Appeals of Somerville, Mass. 120 N. E. 2d 753; Zang and Sons, Builders v. Taylor, 203 Md. 628, 102 A. 2d 723."
The Appellate Division affirmed the decision of Justice Hogan but expressly reserved the question of the Maryland Rule in these words:
"In our opinion, on the record presented, the determination by the Special Term that the ordinance as amended restricted respondents' property to a use for which it is not reasonably adapted, is supported by substantial evidence. (Cf. Mardine Realty Co. v. Village of Dobbs Ferry, 1 A. D. 2d 789, affd. 1 N. Y. 2d 902). Accordingly, we do not reach the questions whether, as held by the learned Special Term, before property is rezoned there must be proof either that there was some mistake in the original zoning or that the character of the neighborhood had undergone such a substantial change as to warrant reclassification, and 

 [*596]  whether there was proof of [***83]  such mistake or change." (p. 890 of 2 A. D. 2d).
The Court of Appeals of New York affirmed both decisions but did not reach the issue of the Maryland Rule.
However, in Levitt v. Village of Sands Point, 6 A. D. 2d 701, 174 N. Y. S. 2d 283, affd. 6 N. Y. 2d 269, 189 N. Y. S. 2d 212, 160 N. E. 2d 501, the Maryland Rule and the adoption of it by the lower court in Hyde, were specifically disapproved.  The case was tried before an Official Referee, whose findings and conclusions were effectuated by the trial court without opinion.  Speaking of "the learned Official Referee" the Appellate Division stated:
"He also indicated that he was in accord with the view that before property may be rezoned, as here, there should be proof either that there was a mistake in the original zoning or that there has been a substantial change in the character of the neighborhood warranting reclassification (cf. Hyde v. Incorporated Vil. of Baxter Estates, 140 N. Y. S. 2d 890, affd. 2 A. D. 2d 889, affd. 3 N. Y. 2d 873)."

The Appellate Division reversed a holding invalidating the amendatory ordinance there involved; the court agreed that appellees' property was not restricted [***84]  to a use for which it is not reasonably adapted, but went on to say:
"It is our opinion, however, that it may not be held on the record presented that respondents were deprived of their property without due process or that the ordinance is unconstitutional as arbitrary, capricious [citing cases],  [**352]  or without relation to purposes which appellants were authorized to effect [citing cases].  Neither are we in accord with the view that before an amendment to a zoning ordinance may be sustained there must be proof of mistake in the original enactment or a change in the character of the property involved in the reclassification (see Village Law §  179; Rodgers v. Village of Tarrytown, supra, p. 121; Pentaquit 

 [*597]  Assn. v. Furman, 283 App. Div. 875)." (p. 701-702 of 6 A. D. 2d).
Amici Curiae in the Court of Appeals of New York urged the Court to hold that "the Official Referee erred in holding that there are other and different tests of validity to be applied to amendments to zoning ordinances from those applied to original enactments." The Court of Appeals (6 N. Y. 2d 269, 1959) per Froessel, J. agreed with the Appellate Division and with the  [***85]  amici, saying:
"Even if the validity of the regulation were 'fairly debatable,' as plaintiffs' expert at the trial conceded it was, 'the legislative judgment must be allowed to control' (Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 388). The presumption of validity is not changed by the fact that an amendment to a zoning ordinance is here involved (Rodgers v. Village of Tarrytown, 302 N. Y. 115, 121-123; Shepard v. Vil. of Skaneateles, 300 N. Y. 115, 117-118)." (p. 273 of 6 N. Y. 2d).  (All italics original).
In 1961 this position was reiterated in the case of McCabe v. Town of Oyster Bay, 13 A. D. 2d 979, 217 N. Y. S. 2d 163, appeal dism. 10 N. Y. 2d 1011 (1961, per curiam), wherein the court stated:
"In order to sustain the validity of the amendment, it was not essential that the town establish that there was a mistake in the original enactment or a change in the character of the property involved in the reclassification (Levitt v. Incorporated Vil. of Sands Point, 6 A. D. 2d 701, affd. 6 N. Y. 2d 269)." (p. 987 of 13 A. D. 2d).
The reliance by the New York courts on the landmark case of Rodgers v. Tarrytown, 276 App. Div. 1019, [***86]  affd. 302 N. Y. 115, (1951) is not without its ironic aspects; as has been indicated, it was the Rodgers case upon which the Court of Appeals of Maryland so heavily relied in Huff v. Board of Zoning Appeals, 214 Md. 58, 133 A. 2d 83 (1957), a case wherein we 

 [*598]  upheld the device of the "non-Euclidean" or "floating" zone, a device still considered revolutionary (see Haar and Hering, The Lower Gwynedd Township Case: Too Flexible Zoning or an Inflexible Judiciary?, 74 Harv. L. Rev. 1552 (1961)).
The Kansas City Court of Appeals in Miller v. Kansas City, 358 S. W. 2d 100 (1962, Sperry, Commissioner) also rejected the Maryland Rule:
"Nor is it always necessary that a change in conditions be shown in order to justify a change in zoning. Cianciarulo v. Tarro, 168 A. 2d 719, 725 (R. I.).  Here, the area is stagnated because of what is now regarded as unwise strip zoning. (Italics supplied).  Conditions would seem to justify a re-examination of the situation and a change in zoning *** if the council believed it to be for the general welfare." (p. 105).
In Walker v. Town of Elkin, 254 N. C. 85, 118 S. E. 2d 1 (1961), Justice Rodman for the North [***87]  Carolina Supreme Court upheld the rezoning of a tract of 3.56 acres  [**353]  solely on the grounds of public need and desirability, and stated:
"If the conditions existing at the time of the proposed change are such as would have originally justified the proposed action, the legislative body has the power to act." (p. 89 of 254 N. C.). n8

n8 In connection with the North Carolina court's position that an amendment is justified if the same action would have been proper as original zoning, one should carefully consider the impact on the Maryland Rule, of two (2) cases which, while stressing the need for showing change or mistake, give rise to a doctrine that might, for want of a better expression, be termed "conditional original zoning" or "original zoning subject to a condition subsequent".
In Mettee v. County Commissioners of Howard County, 212 Md. 357, 129 A. 2d 136 (1957) the County Commissioners zoned as "R" Residential (1/2 acre minimum lots) a tract of about 16 square miles under its comprehensive zoning plan of January 12, 1954.  On July 27, 1954 the tract was rezoned to "RR" residential (1 acre minimum lots) zone -- an action favored by 95% of the neighboring property owners who wished the area to retain, so far as possible, its rural character.  At public hearings on the original zoning plan in January, uncontradicted testimony shows that the Commissioners announced their intention to zone the tract as "R" land (the lower classification), and asked the public to "allow us to go ahead and adopt this map," telling them to "petition us for a hearing" later, and that "they would give every consideration to an application for amendment." Various citizens accepted the invitation and did subsequently petition for amendment to an "RR" zone; on July 27th, 1954, the County Commissioners granted the petition for rezoning. This Court upheld the rezoning of July 27th, not on the theory that the Commissioners were simply correcting a "mistake" in the original zoning of January 12th, but rather that "the action on July 27th was thus simply a completion of the action begun in January and in substance a part of the original zoning" (page 367 of 212 Md.).  The startling feature of the result of the case is the fact that the Court expressly recognized that the action of July 27th was not a mere substitution or effectuation nunc pro tunc of an earlier, already-agreed-upon decision that the 16 square miles ought to be "RR" instead of "R" -- but rather that the hearing in July was a plenary re-inquiry into the entire matter, that the wide "difference of opinion lay in the views as to policy" and that "the issue [was] not only fairly debatable but was hotly debated" (p. 365 of 212 Md.).  Further, the proper zoning of the 16 square miles was characterized by this Court as having been "left open" in January; and we said that the January classification was not "permanent and final" (p. 366 of 212 Md.).
Query: In the instant case, if the Tantallon developers had requested apartment zoning at the hearings on the original Regional District plan of 1957, but had been asked by the Council to "allow us to go ahead and adopt this map" (classifying the 650 acres here involved as RR rural residential), to defer their requests for the present and to "petition us for a hearing" in the future, and that the councilmen would "give every consideration to an application for amendment" -- then, under the Mettee doctrine could we not hold that the RR classification adopted in 1957 was not intended to be "permanent and final," that the matter had in reality been "left open" for a future Council to ponder, and that the reclassification granted in 1964 was "simply a completion of the action" begun in 1957, "in substance a part of the original zoning"?
A time lag of six years in making "the final determination" was upheld under the circumstances of the second case, Wakefield v. Kraft, 202 Md. 136, 96 A. 2d 27 (1952). "In Wakefield v. Kraft, supra (p. 145), one of the points relied on to support a rezoning was the fact that Mr. Brooks, in a preliminary study, had put in a commercial zone at the intersection in question, but omitted it in the approved plan because of doubt as to where the Columbia Pike would be relocated.  It was argued that the change in classification merely supplied an omission in the original plan, despite the fact that it was there zoned as residential. It was held that the County Commissioners were not foreclosed from making the reclassification. Judge Hammond, speaking for the Court (p. 149) said: 'They recalled, undoubtedly, that it would have been done in 1948, if the relocation of the road then had been known.  Thus, essentially, making the intersection Commercial A was part of an original comprehensive plan for uniform zoning of the whole County.'" (Quoted from Mettee, at page 367, Henderson, J.).

 [***88]  

 [*599]   [**354]  The Rhode Island case of Cianciarulo v. Tarro, 168 A. 2d 719 (R. I. 1961) deserves to be read in its entirety.  (Inter alia, 

 [*600]  it traces the adoption by the Connecticut Supreme Court of the Maryland Rule and its later repudiation by that court).  To quote from just a fragment of that case:
"It is our opinion then that the rule stated in D'Angelo v. Knights of Columbus Building Ass'n., supra, is that 'spot zoning,' while presumptively illegal, may constitute a valid exercise of the amendatory power when there is a substantial change of conditions in the involved area or where the original zoning was erroneous.  But an amendment to a zoning ordinance that changes a zoning regulation that is not spot zoning as defined in the D'Angelo case supra, will not be held as an invalid exercise of the amendatory power of the local legislature only because a change of condition or a prior zoning error has not been shown." (p. 725).
While it should now be obvious that an increasing number of our sister states (those in which zoning is highly important) have specifically rejected the change-or-mistake rule when it has been argued to them,  [***89]  there may be as much, if not more, significance in the fact that "in the majority of states no reference is made of the necessity of such proof of mistake or changed conditions.  * * *" 1 Rathkopf, 27-17. n9

n9 For examples: "If trends and economic changes of the times appear, the council's discretion to change its plan is quite broad and it may amend the general ordinance any time it deems circumstances and conditions warrant such action." Plaza Recreational Center v. Sioux City, 111 N. W. 2d 758, 766 (1961, Iowa).
"The validity of an amendatory zoning ordinance, with respect to the exercise of the police power, must be determined by the same rules and tests as those applied in ascertaining the validity of original zoning ordinances * * *" Trust Company v. City of Chicago, 408 Ill. 91, 96 N. E. 2d 499, 504.
"We are of the opinion the governing body of a municipality may amend its zoning ordinances any time it deems circumstances and conditions warrant such action, and such an amendment is valid if the procedural requirements of the statutes are followed and it is not unreasonable or capricious nor inconsistent with the spirit and design of the zoning statute." Keller v. Council Bluffs, 66 N. W. 2d 113, 116. "*** (T)he statute contemplates the same, careful, serious and intelligent consideration of an amendment to a zoning ordinance as in the preparation and enactment of an original ordinance on zoning" (p. 118).

 [***90]  

 [*601]  It is my opinion that the Court's order, striking down the zoning for Tantallon, which one enthused witness said was "one of the outstanding projects in the United States," is out of step with the modern judicial approach, is harsh, and restricts progress.
Part IV.
Having completed the attempt to show my reasons for opposing the (partial) reversal of the lower court's order, I now turn to a consideration of those parts of that order that the Court today affirms.  I regret the necessity of further expanding an already lengthy opinion, but in view of my strong belief that the complexities of the situation have gone unnoticed by the Court, I feel constrained to add a few more words.
As Robert J. Carson makes clear, in his article entitled Reclassification, Variances, and Special Exceptions in Maryland, 21 Md. L. Rev. 306 (1961), there are a variety of sources from which local governmental units may derive their power to enact zoning legislation.  In addition to any public  [**355]  local laws which may be in force in any given locality, the careful attorney must consult the Code, Article 66B, Sections 1-9 (incorporated cities and towns with more than 10,000 inhabitants);  [***91]  Article 66B, Section 21 et seq. (other incorporated areas); Article 25A, Section 5(U) (zoning powers of chartered counties).  The three tracts in this case are situated in that part of Prince George's County within the Maryland-Washington Regional District; zoning legislation and judicial review thereof 

 [*602]  are governed by the Laws of 1959, Chapter 780, now codified as Subtitle 59 ("Park and Planning Commission") of the Code of Public Local Laws of Prince George's County, 1963 edition.
We have had occasion before to consider the extraordinary provisions with respect to judicial review contained in Section 79 of the Act of 1959, now Subtitle 59-85(i) of the County Code. n10 In the case of County Commissioners of Prince George's County v. Donohoe, 220 Md. 362, 152 A. 2d 555 (1959) this Court noted the striking similarity between these provisions and the analogous provisions of the Administrative Procedure Act; Code, Article 41, Section 255(g).  While recognizing the nearidentity of the one law with the other, our holding there turned on the one marked difference between the two -- the fact that a reviewing court under the Administrative Procedure Act may consider "de novo [***92]  evidence taken in open court," while a reviewing court under the special bi-county law ordinarily may not consider or even admit such evidence, but should remand the case to the District Council, so that it may "have the benefit of the Council's judgment on the evidence *** as the statute contemplated it should" (p. 371 of 220 Md.).  We were faced in Donohoe with the constitutionality of that unique part of the 1959 law which purports to confer upon the Circuit Court the power to reverse or modify the District Council's decision if it is found to be "against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency." Since we reversed on another ground (the propriety under the circumstances of taking de novo testimony 

 [*603]  in the Circuit Court), we expressly reserved the constitutional issue, Chief Judge Brune saying for the Court, "We do not now reach the constitutional questions based upon separation of powers which the appellant has raised and we do not undertake to decide them." On three other occasions the Court was confronted with the same problem, but in all the four cases the Court has declined to pass [***93]  upon it.  See Bishop v. Board of County Commissioners of Prince George's County, 230 Md. 494, 500, 187 A. 2d 851 (1963); Board of County Commissioners of Prince George's County v. Oak Hill Farms, Inc., 232 Md. 274, 277, 192 A. 2d 761 (1963); and Board of County Commissioners of Prince George's County v. Levitt, 235 Md. 151, 200 A. 2d 670 (1964).

n10 Subtitle 59-85(i) provides: "(i) Court's action.  The court may affirm the decision of the district council or remand the case for further proceedings, or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional provisions; or (2) in excess of the statutory authority or jurisdiction of the agency; or (3) made upon unlawful procedure; or (4) affected by other error of law; or (5) unsupported by competent, material and substantial evidence in view of the entire records as submitted; or (6) against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency; or (7) arbitrary or capricious." (Emphasis supplied).

 [***94]  
In the Bishop case, we said simply:
"One question of law which has been raised in the trial court has not been urged on appeal.  We therefore do not decide it.  *** That question was the validity or invalidity of [the County Code provision.] *** The trial court held this provision unconstitutional.   [**356]  The appellants do not challenge this holding and we, therefore, do not pass upon it" (p. 500 of 230 Md.).
In the Oak Hill Farms case we held that the Council's action was not supported by even fairly debatable evidence; Judge Hammond, for the Court, concluded: "In the view we take of the present appeal, again we do not need to determine the validity of the legislative grant to the court of the power to weigh the evidence before the District Council" (p. 277 of 232 Md.).
In the Levitt case (the converse of Bishop), we assumed the validity of the weight-of-evidence standard, Judge Prescott saying for the Court: "The appellant seeks to attack the constitutionality of Section 79(i) (5) and (6); however, this question was not raised or argued in the court below, hence, for the purpose of this appeal, we must consider them as valid enactments of law.  [***95]  Maryland Rule 885.  * * *"
Dicta in the Levitt and Oak Hill Farms cases suggest that the distinction between judicial review based on substantial evidence and that based on the weight of evidence, may be "tenuous" and the lines "difficult to delineate." I fully recognize 

 [*604]  the truth of Chief Judge Sobeloff's observation in his dissenting opinion in Wakefield v. Kraft, 202 Md. 136, 154, 96 A. 2d 27 (1953) that many of our word-distinctions in zoning law have chiefly a "literary appeal" which offer little help in the solution of concrete cases.  Also, I lend full credence to Professor Davis' observation, that in deference to the salutary principles of judicial self-restraint and comity among intragovernmental branches, that "even when the reviewing court deems itself free to substitute judgment, practical considerations may lead it to behave in about the same way it would if it deemed itself limited by the reasonableness test." Davis, Administrative Law Text, section 30.13 (1959).  Notwithstanding this, however, I believe there is something to be said for the view that there may be a crucial theoretical difference between the two standards, a difference [***96]  which may alter the ultimate results in a significant number of cases.  Under the substantial evidence test (i.e., the fairly debatable test) the court considers whether the Council's finding is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938). The Court does not necessarily have to believe that the Council's action was the best that could be rendered; indeed, it may even choke on it; but if it is based on substantial evidence, it must uphold it.  Offutt v. Board of Zoning Appeals, 204 Md. 551, 105 A. 2d 219 (1954). If the court, however, is to decide where the weight of evidence lies, that is, which side preponderates, or to which side the balance tilts, the court will be able to decide each case according to its evaluation of the particular facts in that case.
A good critique of the "blending" approach is that of Leonard E. Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1 (1964), 40-42, writing after Oak Hill Farms but before Levitt.  After thoroughly reviewing our language indicating that the difference between the two [***97]  tests was "difficult to delineate" and that the line between them was "thin," the author comments as follows:
"On the facts of the Oak Hill Farms case, this reasoning is understandable in that there was practically 

 [*605]  no evidence to support the decision of the County Commissioners.  The decision would have been reversible under either of the two tests.  The question remains, however, whether the court will also equate the substantial evidence rule with the weight of the evidence rule in a case where the result could depend on which test is employed.  To explain, first assume a set of facts similar to those in the Oak Hill Farms  [**357]  case.  There are one hundred pieces of evidence in favor of proposition I and only one piece of evidence in favor of proposition II.  Although there would be evidence supporting proposition II, it would clearly not be substantial evidence, considering the evidence to the contrary.  Also, the weight of the evidence would clearly be in favor of proposition I.  Next assume that five pieces of evidence favor proposition I and one piece of evidence favors proposition II.  This is similar to the illustration given at the beginning [***98]  of this section.  It would seem that, even taking into account the contrary evidence, there would be substantial evidence supporting proposition II, assuming that the one piece of evidence is of a reliable nature.  Nevertheless, it would also seem that the weight of the evidence is against proposition II.  In this type of situation, the test employed would probably be determinative.  If under these circumstances the Court of Appeals still equates the substantial evidence test with the weight of the evidence test, it would be ignoring the fact that the leading writers in the field of administrative law have recognized a meaningful difference between the two tests."
Delegation of legislative power is another question inherent in this unique County Code provision.  The entire subject is a legal jungle; the only thing certain about it is that a "good court can lose its bearings because of the misleading generalities that fill judicial opinions on the subject of delegation." Davis, sec. 2.09.
The parties and the lower court are entitled to an adjudication 

 [*606]  of these issues.  Good arguments can undoubtedly be marshalled for both sides of the constitutional issues posed by [***99]  section 79 of Chapter 780, Laws of 1959.  (cf. Cromwell v. Jackson, 188 Md. 8, 52 A. 2d 79 (1947), drawing a distinction between the constitutionality of two statutes, one of which conferred power upon Circuit Court judges to grant or deny liquor licenses in the first instance, and the second of which gave the judges power to review under broad standards the already-taken action by the liquor licensing board).  The appellants thought they were entitled to avail themselves of the benefits of the contested statute; their petition for review in the Circuit Court asked a reversal of the Council's action on the ground that rezoning was against the "plain weight of the evidence." Since the Court wrote an opinion affirming the Council rather than reversing the Council, its failure to reach the question, as requested by the appellants, constituted plain error which may be recognized by this Court ex mero motu.
In my opinion, the question falls within the provision of Maryland Rule 885 which states, inter alia, "where a point or question of law was presented to the lower court and a decision of such point or question of law by this Court is necessary or desirable for the [***100]  guidance of the lower court or to avoid the expense and delay of another appeal to this Court, such point or question of law may be decided by this Court even though not decided by the lower court." As already indicated, the appellants raised the question in their petition, but the point was not decided by the lower court.  Judge Loveless carefully refrained from indicating his own view as to the weight of the evidence, stating only that "both proponents and opponents presented meritorious arguments"; that "a decision would be most difficult to make"; he concluded that there was substantial evidence upon which "a reasoning mind could reasonably have reached the decision of the District Council." (Indeed, at one point in his Opinion, he indicated that "the Court cannot substitute its opinion regardless of how it might feel").  The lower court, had it considered that Section 59-85(i) (6) was a constitutional enactment, and then applied it, might well have concluded that the "weight of the competent, material, and substantial evidence in view of the entire record" supported the 

 [*607]  District Council's action  [**358]  (this is my own view of the matter).  I think the lower court [***101]  (and this Court) should have passed upon those issues. n11

n11 It is respectfully suggested that a happy solution of the entire problem would be the elimination of subsection (6) by action of the General Assembly.  As noted above, it is reasonably arguable that a determination of the weight of the evidence is an inappropriate function for a reviewing court and may even be an invalid grant of legislative power.  But even if subsection (6) is both valid and proper, the ability of the Circuit Court judge to make an effective decision on the weight of the evidence, at least to the extent that an intelligent decision depends upon an opportunity for personal observation and evaluation of witnesses, would appear to be severely limited by our holding in County Commissioners of Prince George's County v. Donohoe, 220 Md. 362, 152 A. 2d 555 (1959), discussed above.

But there is another reason, which justifies a decision of this issue: "the urgency of establishing a rule of future conduct in matters of important public concern."  [***102]  Board of Education of Montgomery Co. v. Montgomery County, 237 Md. 191, 195, 205 A. 2d 202 (1964). The situation is especially acute in Prince George's County, one of the two counties where it matters most.  Judge Powers, one of the judges of the Seventh Judicial Circuit of Maryland, has declared the provision under discussion -- part of a duly enacted special law providing for harmony and orderliness of development within the suburban Washington area -- to be unconstitutional.  See Bishop v. Board of County Commissioners of Prince George's County, supra, page 500 of 230 Md.  If one will refer to the appellant's brief and record extract in that case, especially at pages 110 and 8, the following will appear: On page 110 Judge Powers summed up his views by saying: "It would be the taking over of a legislative function by the court and the court's legislating on zoning matters rather than the duly constituted Board." On page 8 he said: "It is the view of the Court that to make a determination of a zoning case decided by the District Council and then reviewed by this Court based on weight of evidence would be usurpation by the Court of the legislative function and result ultimately [***103]  in the Courts in the County zoning property rather than the duly constituted Board." Enforcing his views, he declared: 

 [*608]  "Therefore, the determination of this case will not be made on the question of the weight of evidence.  * * *" There is much to be said for his views.  The very nature and quality of the proceedings had by an aggrieved party, however, may well depend upon whether his case is heard by an associate judge of the Seventh Judicial Circuit who shares and adheres to Judge Powers' holding.  The appellant in the instant litigation, then, is entitled to have the matter resolved; and the same considerations which motivated our decision in Board of Education, supra, and more recently, in Kardy v. Shook, J., 237 Md. 524, 207 A. 2d 83 (1964) should impel us to forego the position we have heretofore taken in Bishop, Donohoe, Oak Hill Farms, and Levitt.  Specifically, I am of the opinion that the appellant is entitled to know whether or not he is entitled to seek a reversal by the Circuit Court for Prince George's County of a decision of the District Council on the ground that the Council's decision was against the weight of the evidence before it.
Finally,  [***104]  to put this dissenting opinion into perspective as an entirety, what has been said above, particularly what has been said in regard to the re-examination of existing theories (Part III) is not and cannot hope to be, an all-inclusive re-survey of the decisional law of zoning. Its treatment is wide-ranging, rather than exhaustive; its purpose, suggestive, and that only.
For all of the reasons above set forth, I respectfully dissent.  

72 of 138 DOCUMENTS 

MARYLAND MEDICAL SERVICE, INC. v. CARVER, et al.  

No. 245, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 466; 209 A.2d 582; 1965 Md. LEXIS 675 

April 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order affirmed as to paragraphs 2 and 3 and reversed as to paragraph 1; the case remanded for further proceedings and the entry of an order in accordance with this opinion; the appellant to pay the costs.  

CASE SUMMARY
 
PROCEDURAL POSTURE: Appellant insurer sought review of the decree of the Circuit Court for Baltimore County which declared that the existing contracts did comply with the requirements of Md. Ann. Code. art 48A, § 55(b); appellee insureds challenged the portion of the decree which provided that they were not entitled to reimbursement under their existing policies.
 
OVERVIEW: In a declaratory judgment proceeding brought by appellees and by two chiropodists, the trial court held that the proper construction of a statutory amendment was that the reimbursement for chiropodial care was mandatory and entered a decree carrying that decision into effect, but provided in the decree that the appellees were not entitled to reimbursement for services rendered by chiropodists under their existing policies. On appeal, the court affirmed that portion of the ruling that found that the amendment was mandatory, because it was drafted using the word "shall", and reversed the finding that appellees were not entitled to reimbursement under their existing policies because the policies renewed after the effective date of the amendment.
 
OUTCOME: Decision affirmed in part because language of amendment was mandatory and reversed in part because appellees' policies renewed subsequent to effective date of amendment and appellees were entitled to benefits under amendment.
 
CORE CONCEPTS 

Insurance Law : Group Policies
See Md. Ann. Code art. 48A, §  355(b)(2).

Governments & Legislation : Legislation : Construction & Interpretation
If the legislative intent is expressed in clear and unambiguous language, this will be carried into effect by the Court even if the Court might be of the opinion that the policy of the legislation is unwise, or even harsh or unjust, if no constitutional guarantees are impaired by the legislation.

Governments & Legislation : Legislation : Construction & Interpretation
In construing the words used in the statute, the Court will consider them in their natural and ordinary signification; if, however, the words used in the statute are of doubtful meaning, the Court in determining the legislative intent, will consider not only their usual and literal meaning, but their meaning and effect considered in the light of the objectives and purposes of the enactment and the consequences resulting from one meaning rather than another meaning, with the real legislative intent prevailing over the intent indicated by the literal meaning of the words used.

Governments & Legislation : Legislation : Construction & Interpretation
Ordinarily the word "shall" is mandatory and it is presumed that the legislature used this word in its usual and natural meaning unless ther eis something in the legislation to indicate otherwise.

Healthcare Law : Business Organization & Administration
See Md. Ann. Code art. 43, §  492.

Insurance Law : Regulation of Insurance
It is well established that the insurance industry is affected with a public interest and may be regulated by the States within constitutional limits.

Insurance Law : Contracts & Claims : Policy Interpretation
The rule is equally clear that a renewal of a policy by the payment of a new premium and the issuance of a receipt therefor, where there is no provision in the policy for its renewal, is a new contract in that it cannot be made without the mutual consent of the parties and a meeting of the minds on all the essential terms of the contract. The parties may renew the policy on terms different from those contained in the original contract; but, of course, the terms of the policy, unless otherwise expressed, are not changed by a renewal, but are merely continued in force as binding upon the parties. 

SYLLABUS:

Suit for declaratory judgment by Melvin Carver, and others, against Maryland Medical Service, Inc. (Blue Shield), and others, for a construction of the Act of 1963, Chapter 548.  From the order of the lower court finding that the 1963 amendment was mandatory but that two of the plaintiffs who were certificate holders were not entitled to reimbursement for services rendered by churopodists under their esisting Blue Shield contracts and that the exisint Blue Shield contracts do not comply with the requirements of Code, Art. 48A, Sec, 355(b), Blue Shield appeals and the two certificate holders cross-appeal.  
Order affirmed as to paragraphs 2 and 3 and reversed as to paragraph 1; the case remanded for further proceedings and the entry of an order in accordance with this opinion; the appellant to pay the costs.  

COUNSEL:
F. M. Gloth, Jr., with whom were Hilary W. Gans and Joseph T.  [***2]   Brennan, 2d on the brief, for appellant.
Reuben Shiling, with whom were Gordon E. Miller and Hugo Ricciuti on the brief, for appellees.  

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

OPINIONBY:
BARNES 

OPINION:

  [**584]   [*470]  BARNES, J., delivered the opinion of the Court.  
This appal involves the construction of the Act of 1963, Chapter 548, which amended the non-profit health plan sections 

 [*471]  of Article 48A of the Code in regard to insurance, now codified as Sections 354 to 361, t provide for chiropodial care rendered by chiropodists under these plans.  By the 1963 amendment the words "chiropodist" and "chiropodial" were inserted in appropriate places in the existing statutes and to Section 355(b)(2) were added the words: 
"and that each subscriber shall be entitled to reimbursement for any such chiropodial service, whether the said service is performed by a doctor of medicine or duly licensed chiropodist." 
The basic question in the case is whether the provisions of the 1963 amendment are permissive or mandatory. In a declaratory judgment proceeding brought by two coertificate holers of the [***3]  Blue Shield Plan and by two chiropodists, in the Circuit Court for Baltimore County, Judge Raine held that the proper construction of the 1963 amendment was that it was mandatory and entered a decree carrying that decision into effect, but provided in the decree  [**585]  that the two certificate holders were not entitled to reimbursement for services rendered by chiropodists under their existing Blue Shielf contracts.  The operator of the Blue Shield Plan has appealed from the decree delcaring that the existing Blue Shield contracts do not comply with the requirements of Code, Art. 48A, Sec. 355(b) and the certificate holders have filed a cross appeal from the portion of the decree which provides that they are not entitled to reimbursement under their existing certificates. 
The Insurance Commissioner who was also a party defendant in the lower court, has not entered an appeal from the decree. 
The appellant, Maryland Medical Service, Inc. (Blue Shield) is a Maryland corporation without capital stock organized in 1950 to establish, operate and maintain a non-profit health service plan authorized by the Acts of 1945, Chapter 752, Sections 235 to 242, now as amended, Code, Art.  [***4]  48A, Secs. 354 to 361.  The non-profit health service plan established and operated by Blue Shield is known as the maryland Blue Shield Plan (Blue Shield Plan).  
The original by-laws of Blue Shield indicated that it was 

 [*472]  formed under the auspices of the Council of the Medical and Chirurgical Faculty of Marylnd and the Director of the Maryland Hospital Service, Inc., the operator of a non-profit plan for rendition of hospital services (Blue Cross), also incorporated under Art. 48A of the Code.
Following its incorporation and the adoption of its by-laws, Blue Shield entered into agreements with eligible physicians in Maryland (participating physicians) and adopted a Participating Physician's Manual (Physician's Manual) setting forth the monetary benefits which would be allowed subscribers for specified services rendered by participating physicians, or by nonparticipating physicians.  If the specified services were rendered by a participating physician the payments for those services were made directly to that physician by Blue Shield; if the services were rendered by a non-participating physician, Blue Shield made the payments directly to the subscriber. 
In the Physician's [***5]  Manual, it is stated, inter alia, that: 
"Subject to express provisions of law, there shall be free choice by the patient of any duly licensed physician practicing in the area served by the Plan." 
Under the heading "Participating Physicians" appears the following: 
"Participating Physicians agree to accept the benefits provided by Blue Shield as full payment for services rendered a subscriber whose income classification makes him eligible for 'service benefits' (see section following).  
"Inherent in the basic Blue Shield concept is the right of every licensed physician in Maryland to participate in the Plan, and the right of the patient to select his physician. The doctor-patient relationship in that encroached upon; simply, the Plan rater than the patient pays the fee.  Just as the Plan does not interfere with the patient's choice of physician, it imposes no restrictions on the physician's method of diagnosis or treatment." 

 [*473]  Under the heading "Service Benefit Provisions" the Physician's Manual provides: 
"Under the terms of this participation agreement, a Participating Physician agrees to accept as payment in full the Blue Shield benefits for covered [***6]  services to subscribers whose annual incomes do not exceed stipulated amounts.  If the subscriber's income is in excess of these limits, the physician may bill the subscriber for the difference, if any, between his usual fee for the services provided and the Blue Shield benefits.  This unique service  [**586]  benefit feature provides many Blue Shield subscribers with paid-in-full protection while still preserving their complete freedom of choice in the selection of their physicians." 
Seven areas of benefits are specifically excluded.  Among them are: 
"(4) Oral surgical services provided by a doctor of dental surgery." 
Ther eis no specific exclusion of chiropodial services.In Section IV, under the heading "Partial Schedule of Blue Shield Benefits" apper three items of coverage relevant to this case.  These are: 

________________________________________________________________________________

	Plan A	Plan B	
"Drainage of infection of nail 			
 fold with or without removal 			
 of nail."	$15.00	25.00 	
 			
"Excision of nail bed or nail 			
 fold, partial or complete."	20.00	30.00 	
	
"Avulsion of nail"	10.00	15.00	
________________________________________________________________________________

 
It is also provided in the Physician's Manual that when services are reported by a Participating Physician,  [***7]  payment is made directly to him but "when services are reported y a non-participating physician, payments are made directly to the subscriber." 
Blue Shield issued Membership Certificates to applicants.  The certificates involved in this appeal is a "Class A Certificate" issued to the appellees William M. Hinkle and F. A. Bridgers.  

 [*474]  These certificates provide specifically that "Service Benefits will not apply to Oral Surgical Services when rendered by a doctor of dental surgery." Under Article IV "Limitations and Exclusions," it is provided: 
"1.  The following are not covered by this Subscription Agreement: 
"F.  Care of corns, bunions (except capsular or bone surgery therefor), callouses, nails of the feet except radical surgery for ingrown nails, flat feet, fallen arches, weak feet, chronic foot strain or symptomatic complaints of the feet, except when major surgery is performed;" 
There is also a provision that where the services are rendered by a non-participating physician "payment for such services shall be made by Blue Shield directly to the subscriber for the charge by the physician in an amount up to but not exceeding the amount specified for such services [***8]  in the Schedule of Benefits." 
The Subscription Agreement may be terminated either by the applicant or by Blue Shield upon giving 30 days prior written notice.  The membership certificate contains no provision for renewal. It provides that rights and benefits accrue to a subscriber only during the period for which subscription charges have been accepted by Blue Shield.  It further provides that the agreement terminates after the expriation of 30 days from the due date of subscription charges or by either Blue Shield or the applicant at any time giving 30 days' prior written notice to the other party.  
The appellants Hinkle and Bridgers paid subscription charges subsequent to June 1, 1963 and these charges were accepted by Blue Shield.  The form of Membership Certificate appearing in the record was printed after June 1, 1963.  
It is undisputed that the appellees, Melvin Carver and Michael M. Sherman were at all relevant times licensed chiropodists pursuant to Code, Art. 43, Secs. 481 to 494, but were not "Physicians" licensed and registered to practice medicine in Maryland. It is also undisputed that Margaret Hinkle, wife of the appellee, William M. Hinkle, received services [***9]  from the chiropodist Sherman on July 19, 1963 for which a statement of $20.00 

 [*475]  was submitted to Blue Cross on August 14, 1963; that Mae Smart Bridgers, wife of the appellee, F. A. Bridgers, received services from the chiropodist Carver on November 7, 1963 for which a statement of $85.00 was submitted to Blue Shield on December 12, 1963.  Blue Shield  [**587]  refused both of these claims on the groudn that "chiropodial services ... were not included in the Membership Certificate issued by Blue Shield ... " Presumably if the services had been rendered by a non-participating physician rather than by chiropodists, the claims would have been within the coverage of the Membership Certificate. 
It will be helpful to the decision of the case to review briefly the historical background of the legislation to be construed.  
The first statutory authorization in Maryland for this type of plan was by the Act of 1935, Chapter 476, which added ten new sections to Article 1 of the Code of Public Local Laws of Maryland for Allegany County.  This statute provided for the organization and operation of non-profit hospital service plans.  Any proposed non-profit hospital service [***10]  corporation was required to obtain the approval of the Insurance Commissioner and the Board of State Aid and Charities prior to its incorporation and when incorporated was permitted to enter into a contract with a duly qualified hospital for the rendering of hospital services to its subscribers provided that the rates charged "shall at all times be subject to the approval of the State Insurance Commissioner." There were also provisions for filing annual reports with the Insurance Commissioner or his deputies, for the resolving of disputes and for the investment of funds.  
By the Act of 1937, Chapter 224, the ten sections of the Code of Public Local Laws for Allegany County enacted by the Act of 1935, Chapter 476, were repealed and nine new sections were added to Article 48A under a new subtitle "Non-Profit Hospital Service." The new legislation provided for the formation of corporations for establishing, maintaining and operating a Non-Profit Hospital Service Plan "whereby hospital care is provided by a hospital or hospitals to persons who become subscribers ... " There was provision for a license to be issued by the Insurance Commissioner, a license fee of $100.00, various requriements [***11]  to be performed by the corporation prior to issuance of a license, with provisions for approval of contracts, 

 [*476]  rights of visitation and inspection, and revocation of licenses by the Insurance Commissioner.  There were also provisions for the filing of annual statements, for the restriction of investment of funds, for exemption from taxation both state and local, and for various penalties for violation of the Act.  
There was an important amendment of one section of the public general law by the Act of 1941, Chapter 906, principally in regard to the license fee (reducing it from $100 to $10.00 as provided by then Section 36 of Art. 48A).  
A significant change in the law was made by the Act of 1945, Chapter 752.  The sub-title in Art. 48A of the 1939 Code (and 1943 Supplement) was changed from "Non-Profit Hospital Service Plans" to "Non-Profit Health Service Plans." In addition to hospital care, the 1945 amendments provided for "medical or dental care" as additioal purposes for which the non-profit corporation could operate.  The new Sec. 235 included the words "medical or dental care" in addition to "hospital care." This Sec. 235 became Sec. 326 of Art. 48A of the 1957 [***12]  Code; and is now Sec. 354 of the Code (1964 Supp.).  In Sec. 236(2) as amended, it was provided that the Insurance Commissioner before issuing the license and payment of the license fee should be satisfied: 
"(2) That each contract executed or proposed to be executed, by the applicant and any hospital, physician or dentist for the furnishing of hospital, medical or dental service to the subscribers to the Health Service Plan obligates, or will, when executed, obligate each hospital, physician or dentist party thereto to render the serfice to which each subscriber may be entitled under the terms and conditions of the various contracts issued, or proposed to be issued by the applicant to subscribers to the Plan." This Section 236 became Section  [**588]  327 of Article 48A of the 1957 Code, and is now Code (1964 Supp.) Section 355.  
In Section 237 the provisions for care by physicians and dentists in addition to hospital care were added.  This Section 237 became Section 328 of Article 48A of the 1957 Code, and is now Code (1964 Supp.) Section356.  
Into this legislative setting, the Act of 1963, Chapter 548 (introduced into the General Assembly of Maryland as Senate Bill 

 [*477]   [***13]  231), with which we are particularly concerend in this appeal, was enacted.  The 1963 Act recites in its title that it is an "Act to repeal and re-enact with amendments, Sections 354, 355 and 356 of Article 48A" of the 1957 Code "amending the laws concerning non-profit health service plans in order that chiropodial care and services may be rendered under contracts made as a part of such non-profit health service plans, and that subscribers under such contracts be entitled to reimbursements for such care and services, whether performed by a doctor of medicine or duly licensed chiropodist." 
In the body of the Act, Sections 354, 355 and 356 are amended to add the words "chiropodist" or "chiropodial" where appropriate to have chiropodists or chiropodial services included with hospitals, physicians or dentists or with medical or dental care, as the case may be.  
In Section 355(b)(2), however, as we have already indicated, significant additional lines were added so tht it read as follows: 
"That each contract executed, or proposed ot be executed, by the applicant and any hospital, physician, chiropodist or dentist for the furnishing of hospital, medical, chiropodial or dental [***14]  service to the subscribers to the health service plan, obligates, or will when executed, obligate each hospital, physician, chiropodist or dentist party thereto to render the service to which each subscriber may be entitled under the terms and conditions of the various contracts issued, or proposed to be issued, by the applicant to subscribers to the plan, and that each subscriber shall be entitled to reimbursement for any such chiropodial service, whether the said service is performed by a doctor of medicine or duly licensed chiropodist." (The emphasis supplied indicates the words added by the 1963 amendment).  
The prior decisions of this Court have established the principles which will guide us in construing the Act of 1963, Chapter 548.  The cardinal rule of construction of a statute is to discover and to carry out the real legislative intention.  Barnes v. 

 [*478]  State, ex rel Pinkney, 236 Md. 564, 574; 204 A.2d 787, 792 (1962). Casey Development Corp. v. Montgomery County, 212 Md. 138, 129 A.2d 63 (1957). The legislative intent is to be sought in the first instance in the words used in the statute and if there is no ambiguity or obscurity in the language [***15]  used in the statute, there is usually no need to look elsewhere to ascertain the intent of the legislature.  Board of Supervisors of Election of Baltimore City v. Weiss, 217 Md. 133, 141 A.2d 734 (1958). See particularly the comprehensive review of the prior Maryland cases at pages 136 and 137 of 217 Md.  If the legislative intent is expressed in clear and unambiguous language, this will be carried into effect by this Court even if this Court might be of the opinion that the policy of the legislation is unwise, or even harsh or unjust, if no constitutional guarantees are impaired by the legislation.  Schmeizl v. Schmeizl, 186 Md. 371, 46 A.2d 619 (1946). In construing the words used in the statute, this Court will consider them in their natural and ordinary signification; if, however, the words used in the statute are of doubtful meaning, this Court in determining the legislative intent, will consider not only their usual and literal meaning, but their meaning and effect considered in the light of the objectives and purposes of the enactment and the consequences resulting from one meaning  [**589]  rather than another meaning, with the real legislative intent prevailing over [***16]  the intent indicated by the literal meaning of the words used. Height v. State, 225 Md. 251, 170 A.2d 212 (1961). This Court should also read all parts and all sections of the sub-title "Non-Profit Health Service Plans" together to arrive at the true intention of the legislature, as these sections form part of a general legislative system governing this subject matter, Height v. State, supra. 
We have concluded that Judge Raine's construction of the Act of 1963, Chapter 548, was correct, i.e., that by the clear and unamibiguous language used the last clause in Section 355(b)(2) of Article 48A is mandatory, rather than permissive, and requires Blue Shield to reimburse its subscribers in contracts entered into subsequent to June 1, 1963 when the Act was effective, for covered services when performed by a chiropodist and not by a physician.  
It is provided in the last clause of Section 355(b)(2) that 

 [*479]  "each subscriber shall be entitled to reimbursement ... " Ordinarily the word "shall" is mandatory and it is presumed that the legislature used this word in its usual and natural meaning unless ther eis something in the legislation to indicate otherwise.In [***17]  Barnes v. State, ex rel, Pinkney, supra, 236 Md. 564, 574-575, 204 A.2d 787, 792, Judge Oppenheimer speaking for the Court stated: 
" ... the word 'shall' of itself demonstrates a mandatory intent unless the context indicates otherwise." 
See Elmer v. Commisioner of Insurance, 304 Mass. 194, 23 N.E.2d 95 (1939), in which the Suprme Judicial Court of Massachusetts in construing a statute in regard to the organization of a mutual insurance company to carry on the business of liability, collision and health insurance, construed the word "shall" in the clause providing that the Insurance Commissioner shall enter his approval on the articles "as mandatory and not directory." Mr. Justice Qua, speaking for the Supreme Judicial Court of Massachusetts, stated: 
"'Shall' in a statute is commonly a word of imperative obligation.  It is inconsistent with the idea of discretion. n1 

n1 Elmer v. Commissioner of Insurance was cited with approval and followed in Johnson v. District Attorney for the Northern District, 342 Mass. 212, 172 N.E.2d 703 (1961). 

 [***18]  
See also State ex rel, Tollefson v. Novak, 7 Wash.2d 544, 110 P.2d 636 (1941) and Creteau v. Phoenix Assurance Co. of N.Y., 202 Va. 641, 119 S.E.2d 336 (1961); 42 Op.Atty.Gen. of Md. 303, December 26, 1957 (opinion by Honorable C. Ferdinand Sybert, Attorney General and now a judge of this Court) and 41 Op.Atty.Gen. of Md. 424, July 27, 1956 (opinion by Norman P. Ramsey, Deputy Attorney General).  
Our examination of the other sections under the Sub-title "Non-Profit Health Service Plans" not only fails to indicate that the word "shall" was not used in the mandatory sense, but the words used in these sections indicate to us that this word was deliberately used by the legislature in its mandatory sense. 

 [*480]  Throughout the eight sections there is a careful and precise use of the words "shall" and "may" to indicate mandatory and permissive or discretionary purposes, respectively.  In Section 354, it is provided that a corporation formed to establish, maintain and operate a non-profit health service plan "shall be governed and regulated by the provisions of this subtitle ... and no law hereafter enacted shall apply to such corporations, unless they are expressly [***19]  designated therein and specifically refer to such corporation." These provisions are mandatory and not permissive. In Section 355(a), it is provided that no corporation "shall issue contracts" until licensed by the Insurance Commissioner.  This is mandatory.  [**590]  On the other hand, in Section 355(b)(4) when discretionary power is intended to be conferred, it is stated "and such reserve as the Insurance Commissioner may deem adequate." 
Looking at the objectives and purposes of the legislature it appears to us that it was intended by the last clause added to Section 355(b)(2) to give mandatorily to the subscribers, the right of reimbursement for covered chiropodial service whether such service is performed by a doctor of medicine or a duly licensed chiropodist. This policy of freedom of choice is consistent with the policy of Blue Shield in regard to participating and non-participating physicians as expressly indicated in the By-laws and Physician's Manual of Blue Shield.  The legislative purpose in adding this clause was to insure this freedom of choice to the subscriber as between physicians and chiropodists, either participating or non-participating. The legislature [***20]  could reasonably give this freedom of choice to the subscriber in view of the careful and rather stringent State regulations in regard to the licensing of chiropodists as contained in Code, Art. 43, title "Health," Secs. 481 to 494.  It will be noted that the four members of the Board of Chiropody Examiners are selected by the Board of Medical Examiners of the Medical and Chirurgical Faculty of Maryland, n2 three from the members of the Maryland 

 [*481]  Pedic Association and the remaining member from the Board of Medical Examiners itself.  The license ot the chiropodist may only be granted if three members of the Board of Chiropody Examiners vote in favor of granting the license.The official records of all examinations of prospective chiropodists are required to be spread on the minute sof the Board of Chiropody Examiners and that Board is required to report annually to the board of Medical Examiners of the Medical and Chirurgical Faculty of Maryland "in detail all of their transactions." Since June 1, 1945, no person can apply for examination by the Board of Chiropody Examiners unless that person is 21 years of age, of good moral character, had received 4 years of instruction [***21]  in a high school, 2 years of instruction in a college of liberal arts or sciences and was a "graduate of a reputable and legally incorporated school or college of chiropody, acceptable to the Board." 

n2 It is interesting to note tht in the original By-laws, adopted May 11, 1950, the 8 Class "A" Members of Maryland Medical Service, Inc. are selected by the Chairman of the Council of the Medical and Chirurgical Faculty of Maryland; the 4 Class "B" Members being selected by the Board of Directors of Maryland Hospital Service, Inc.  The Board of Trustees of the corporation which conducts the business and manages the property of the corporation is made up of these 12 Members, so that the Chairman of the Council of the Medical and Chirurgical Faculty of Maryland appoints two-thirds of the members of the Board of Trustees. 

"Chiropody" is defined by Section 492 of Article 43 as follows: 
"Chiropody as defined by this subtitle is the diagnosis, surgical, medical or mechanical treatment of all ailments of the human [***22]  foot.  The term "surgical treatment" is defined for the purposes of this subtitle as limited to the cutting or surgery performed on the soft tissues of the foot, superficial to the deep fascia, and to the toes; with the amputation of a toe or toes and the use of an anesthetic, other than local, prohibited." 
With chiropody thus limited, with the rather high qualifications required for licensed chiropodists and with the close relationship between the Board of Chiropody Examiners and the Board of Medical Examiners, it cannot be said that the giving to 

 [*482]  a subscriber the freedom of choice between the doctor of medicine and the chiropodist in the performance of chiropodial services was either unreasonable or contrary to the public interest. 
 [**591]  Approaching this subject from another point of view, it appears that unless the General Assembly intended the last clause of Section 355(b)(2) mandatorily to provide a choice, there would have been no purpose at all in adding the clause.  In the 1945 amendment when the services of physicians and dentists were added to hospital services, no such clause was added, so that no choice was given between services performed by a doctor [***23]  of medicine or by a doctor of dental surgery.  If the same result were intended as between doctors of medicine and chiropodists, the legislature would have followed the 1945 precedent and would not have added the clause.We cannot assume that the addition of the clause by the legislature was a useless act, having no legal meaning and merely resulted in adding surplusage to the statute.  We must construe the statute so as to give effect, if possible to every word, clause and sentence in it, so that no part will be inoperative, superfluous, insignificant or void.  Fisher v. Bethesda Discount Corp., 221 Md. 271, 157 A.2d 265 (1960). 
The title to the Acts of 1963, Chapter 548, already set forth, is, in our opinion, consistent with our interpretation of the body of the statute.  
Inasmuch as we are of the opinion that the language of the statute is clear, unambiguous and expresses the true legislative intent, we need not consider any extrinsic aids to the construction of the statute.  However, as both the appellant and the appellees have considered in their briefs and in the arguments before us, various circumstances in connection with passage of the legislation, we will briefly comment [***24]  on those circumstances, bearing in mind the admonition of Mr. Justice Holmes in Pine Hill Coal Co. v. U.S., 259 U.S. 191, 196; 42 S.Ct. 482, 66 L.Ed. 894 (1922), that "It is a delicate business to base speculations about the purposes or construction of a statute upon the vicissitudes of its passage." 
Both parties filed motions for summary judgment in the lower court and supported their motions by affidavits and exhibits.  In the factual data thus submitted, the following appears 

 [*483]  which seems to support a mandatory construction of the legislature: 1) a letter, dated March 4, 1963 addressed by the Insurance Commissioner to the Chairman of the Committee on Banking, Insurance and Social Security with reference to Senate Bill No. 231 objecting to the clause at the end of Sec. 355(b)(2) because of its mandatory nature, but not objecting to the other amendments to existing legislation; 2) a statement made by F. M. Gloth, Jr. who represented Blue Shield before the Committee on Banking, Insurance and Social Security of the Maryland Senate in connection with Senate Bill 231 and who stated, in opposition to the clause mentioned, that it was "mandatory that Blue Shield pay subscribers [***25]  for covered services performed by chiropodists, and that Blue Shield because of said mandatory provisions expressly opposed the enactment of said bill." n3 

n3.  Mr. Gloth was of counsel for Blue Shield in the lower court and in this Court in the present case.At the argument he stated that upon more mature consideration, he had come to the conclusion that he had been in error in the position he took before the Senate Committee. 

Blue Shield, on the other hand, relies on a letter of April 23, 1963 from the Attorney General to Governor Tawes indicating that the Attorney General had reviewed Senate Bill No. 231, found is legally valid, but indicating that the clause added to Sec. 355(b)(2) was permissive rather than mandatory. The appellees suggest, however, that this opinion is somewhat impaired by the allegations in the answer of the Insurance Commissioner prepared and filed by the Attorney General "that the effect of the aforementioned legislation is capable of more than one construction" and further, that [***26]  the Insurance Commissioner has not appealed to this Court from the decree of Judge Raine construing the clause as a mandatory provision. 
 [**592]  We are of the opinion that the "weight" of the extrinsic aids to construction favor the one given by Judge Raine which we have indicated is the correct construction based upon the language and purposes of the legislation.  
The appellant urges that we have determined the principles which govern the case at bar in Baltimore County Hospital, Inc. v. Maryland Medical Service, Inc., 234 Md. 427, 200 A. 

 [*484]  2d 39 (1964). We do not agree.  We held in the Baltimore County Hospital case (affirming a decision of Judge Raine in the Circuit Court for Baltimore County) that the Maryland Medical Service, Inc. in its Blue Cross Plan was not required to contract with the appellant hospital in that case, there being no monopoly or restraint of trade alleged in the bill of complaint.  This case did not involve in any way the mandatory provision of the Act of 1963, Chapter 548 added to Sec. 355(b)(2).  We see no conflict between our decision in the case at bar and our decision in the Baltimore County Hospital case.  
The appellant [***27]  further contends that 1) the legislature does not have the power to add the mandatory provision as a part of its power to regulate the insurance industry, and 2) if the provision in question is construed as a mandatory provision, it is unconstitutional as a) a denial of due process of law under the provisions of the Maryland and Federal Constitutions, b) it results in an impairment of contract, contrary to Article 1, Section 10 of the Federal Constitution, and c) it denies the appellant its freedom of contract.  We are of the opinion that none of these contentions has merit. 
It is well established that the insurance industry is affected with a public interest and may be regulated by the States within constitutional limits.  Allied American Mutual Fire Insurance Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 150 A.2d 421 (1959); Keystone Mutual Casualty Company v. Hinds, 180 Md. 676, 26 A.2d 761 (1942). The public interest in insurance is quite different from that involved in paper hanging which our predecessors held in Dasch v. Jackson, 170 Md. 251, 183 A. 534 (1936), relied upon by Blue Shield, had no substantial relation to the public health and safety and was [***28]  not subject to the regulations attempted to be imposed by the State.  In our opinion, the mandatory provision is one which the legislature could reasonably believe was in the public interest. It does not single out chiropodists as a favored class whose activities "enhance a miniscule portion of the people" as suggested by Blue Shield.  It gives the subscriber to the Blue Shield agreements entered into or renewed subsequent to June 1, 1963 the freedom of choice between doctors of medicine and chiropodists for chiropodial service covered by the agreement with reimbursement 

 [*485]  to the subscriber for such service rendered by either a physician or a chiropodist. As both physicians and chiropodists are licensed by the State, with entirely adequate provisions for qualification and examination to protect the public interest, it is not unreasonable to give the subscriber the freedom of choice between them when chiropodial services are involved with a provision for reimbursement to the subscriber however he exercises his choice.  It may well be that in a particular situation a chiropodist trained in a narrow and limited field of treatment for a specified part of the human body would [***29]  be as well qualified to give the limited, specific treatment as a doctor of medicine who has not had the specialized training and practice in this limited field. n4 The reimbursement to the subscriber for chiropodial service, if covered by the contract with Blue Shield, does not increase the financial obligation of Blue Shield as it  [**593]  is of no financial importance to Blue Shield to whom it pays the amount specified in the contract.  Blue Shield suggests that the giving of the freedom of choice will result in increased claims, but there is no evidence of this in the record and we cannot believe that this would be the case, as the availability of either doctors of medicine or of chiropodists to trat the feet of the subscriber does not cause the disease or damage to the feet, the treatment of which is covered by the Blue Shield contract.  

n4.  This was recognized by the Judicial Council of the American Medical Association in the Journal of the American Medical Association of June 7, 1958 in which it stated: "Chiropody is *** a practice ancillary - a handmaiden - to medical practice in a limited field considered not important enough for a doctor of medicine to attend and therefore too often neglected." 

 [***30]  
Does the mandatory legislation impair the freedom of Blue Shield to contract?We think not.  As we have indicated, no new or additional coverage is attempted by the legislation.  The mandatory provision merely provides that if a chiropodial service is covered by the contract with Blue Shield, the subscriber shall be reimbursed whether that service under the contract is provided by a physician or a chiropodist. There is no payment required to a chiropodist. Blue Shield is not required to contract with chiropodists or any one else, and is not required to 

 [*486]  insure any subscriber against the cost of any chiropodial service or services.  Its freedom of contract is not impaired in any constitutional sense, as "freedom of contract is subject to legislative regulation in the interest of public health, safety, morals or welfare." Blum v. Engelman, 190 Md. 109, 115, 57 A.2d 421 (1948). In our opinion, the mandatory provision is not "unreasonable, arbitrary or capricious" and the means selected by the General Assembly did have "a real and substantial relation to the object sought to be obtained," so that the provision did not exceed the scope of regulation ur predecessors [***31]  in Blum v. Engelman, supra indicated was constitutionally permitted.  See United Medical Service, Inc. v. Holz, 5 Misc.2d 999, 161 N.Y.S.2d 624 (1957, Sup.Ct. of N.Y.Spec. Term, N.Y.Co., Part I; unanimously affirmed without opinion by the Supreme Court of New York, Appellate Division on December 10, 1957, 4 App.Div.2d 1017, 169 N.Y.S.2d 416) in which the court held that a statutory requirement was mandatory which provided that a medical service plan (the New York Blue Shield Plan) allow reimbursement to a subscriber for treatment in the field of oral surgery whether performed by a physician or a dentist, and did not constitutionally impair the freedom of contract of the corporation operating the medical service plan.  
The mandatory provision does not impair the obligations of Blue Shield's contracts with its subscribers. It does not apply to any contracts in force on June 1, 1963, when the statute became effective, but only to contracts entered into or renewed subsequent to the effective date of the statute.  The legislation, therefore, does not impair any vested right in any existing contract and is not within the guarantee provided by Article 1, Section 10 of the Federal [***32]  Constitution.  
The Supreme Court of New York, Appellate Division, construed a New York statute similar to the Act of 1963, Chapter 548, to be mandatory and effective in medical service contracts issued or renewed after the effective date of the New York statute, in Western New York Medical Plan, Inc. v. Wikler, 8 App.Div.2d 988, 189 N.Y.S.2d 61 (1959-modifying and affirming the same case reported at 15 Misc.2d 277, 178 N.Y.S.2d 981). The Wikler case was cited with approval and 

 [*487]  followed by the Supreme Court of New York, Appellate Division, in Cooper v. Commercial Insurance Co., 14 App.Div.2d 55, 216 N.Y.S.2d 1004, 1006 (1961). n6 

n6.  The Wikler case has also been cited with approval and followed by the Supreme Court of Minnesota in Taylor v. American National Insurance Co., 264 Minn. 21, 117 N.W.2d 408, 410 (1962) and by the Supreme Court of California in Interinsurance Exchange of the Auto. Club v. Ohio Casualty Insurance Co., 23 C.R. 592, 595, 373 P.2d 640, 643 (1962). 

This brings [***33]  us to the final point to be considered, i.e., does the mandatory provision of the 1963 statute apply to the  [**594]  contracts between Blue Shield and the appellants, Hinkle and Bridgers?  Judge Raine in paragraph 1 of the decree of July 30, 1964 held that it did not.  We disagree with Judge Raine on this point.  
As we have already pointed out, the Blue Shield Plan A Membership Certificate does not contain a provision for renewal. Article VII of the General Conditions of the Certificate provides that: "All rights and benefits hereunder accrue to the subscriber only for and during the period for which subscription charges have been accepted by Blue Shield." The Subscription Agreement terminates after the expiration of the thirty day grace period allowed for the payment of subscription charges, or by either the applicant or Blue Shield, at any time giving written notice to the other.  The Certificate provides that the subscription charges are payable in advance and when these charges are paid by the applicant, he is entitled to the benefits set forth in the Certificate "after the effective date shown on the membership card issued as evidence of the acceptance of the Subscription [***34]  Application." 
The record is not clear in regard to when the membership card was issued to the applicants involved in this case or when new charges were payable by those applicants and accepted by Blue Shield.The appellees state in their brief that Blue Shield accepted subscription charges from the applicants subsequent to June 1, 1963, the effective date of the Act of 1963, Chapter 548, and this is not contradicted in the reply brief of the appellants.  

 [*488]  Assuming for the consideration of this point (the exact factual situation may be determined by the lower court upon the remand of the case), that Blue Shield did accept subscription charges in renewal of the agreement between Blue Shield and the appellees Bridgers and Hinkle, subsequent to June 1, 1963, we are of the opinion that such acceptance constituted a new agreement between the parties and that this new agreement was subject to and included by operation of law the mandatory provision added by the Act of 1963, Chapter 548.  
In World Insurance Company v. Perry, 210 Md. 449, 454, 124 A.2d 259, 262 (1956), Judge Delaplaine, speaking for the court stated: 
"The rule is equally clear that a renewal of a policy [***35]  by the payment of a new premium and the issuance of a receipt therefor, where there is no provision in the policy for its renewal, is a new contract in that it cannot be made without the mutual consent of the parties and a meeting of the minds on all the essential terms of the contract.  The parties may renew the policy on terms different from those contained in the original contract; but, of course, the terms of the policy, unless otherwise expressed, are not changed by a renewal, but are merely continued in force as binding upon the parties." 
This new agreement, entered into after the effective date of the amending statute, has incorporated into it the new mandatory provision. See Keystone Mutual Casualty Co. v. Hinds, supra; Wilkins v. Inland Mutual Insurance Co., 253 F.2d 489 (4 Cir. 1958, Affirming a judgment rendered by Chief Judge Thomsen in the united States District Court for the District of Maryland in Inland Mutual Insurance Co. v. Peterson, et al., 148 F.Supp. 392 (1957)); Trapp v. Metropolitan Life Insurance Co., 70 F.2d 976 (8th Cir. 1934 - opinion adhered to in 72 F.2d 374), cert.den.  293 U.S. 596, 55 S.Ct. 112, 79 L.Ed. 690. 
By paragraphs 2 and 3 of [***36]  the decree of July 30, 1964, Judge Raine adjudged that the existing contracts between Blue Shield and its subscribers do not now conform to the requirements 

 [*489]  of Article 48A, Sec. 355(b) and that the Insurance Commissioner be directed to require Blue Shield to comply with this provision of the statute.   [**595]  These provisions of the order are, in our opinion, correct.  

73 of 138 DOCUMENTS 

PET v. PET 

No. 267, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 492; 209 A.2d 572; 1965 Md. LEXIS 677 

April 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Cardin, J.  

DISPOSITION:
Decree affirmed; the appellee to pay the costs.  

HEADNOTES:

Alimony -- Based On Overall Financial Ability At Time Of Trial -- Wife Contended Husband Deliberately Debased Financial Worth, Hence Court Should Consider Financial Ability At Time Of Separation -- Under Facts Of Case Chancellor's Award Was Properly Based On Time Of Trial -- But Time Of Separation May Be Considered In Certain Circumstances.  In the instant case, the Court held that an award of alimony was properly based on the overall financial ability of the husband at the time of trial. Although the wife indicated that her weekly needs and those of the children were less than the amount awarded, on appeal, she contended that the husband deliberately lessened his earning capacity and debased his financial worth, and that, therefore, the Court should consider the ability of the husband to pay alimony as of the time of separation rather than as of the time of trial. The husband's principal source of income was the salary he received from a construction corporation.  Although the husband was the only stockholder, the control of the company was vested [***2]  in his grandfather, who was its president.  The grandfather reduced the salary of his grandson several months before the trial of the case.  However, the evidence showed that sound business judgment necessitated the reduction in salary, that the value of the husband's interest in the construction company was in dispute and that there was no indication of future earnings from another business owned by the husband where the operation of this latter business had almost ceased. The Court noted that while the award of alimony is to be based on the earning capacity and financial worth of the husband at the time of trial, this does not mean when it is shown that a husband, living in affluent circumstances due in part to the financial assistance of a relative or other person, has had such backing withdrawn or curtailed as a result of a marital rift which threatens to charge him with larger alimony payments than might otherwise be the case, that a chancellor may not consider the ability and financial worth of the husband as of the time of separation.
Attorneys -- Allowance For Counsel Fee Not Inadequate Under Circumstances of This Divorce Case.  

SYLLABUS:

Suit by Ferne H. Pet against Paul [***3]  M. Pet for divorce a mensa et thoro on the ground of desertion by the husband, and seeking alimony, custody of children, payment for their support, and counsel fees.  From a decree awarding custody to the wife, alimony and support, she appeals.  

COUNSEL:
Robert S. Rody for appellant.
Richard C. Murray for appellee.  

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

OPINIONBY:
HORNEY 

OPINION:

 [*494]   [**572]  On this appeal by the wife (Ferne H. Pet) from a portion of the decree granting her a divorce a mensa et thoro from the husband (Paul M. Pet) on the ground of abandonment or desertion, it is contended that the chancellor neglected to give due consideration to the overall financial well being of the husband in determining the award of alimony and support for the minor children and the allowance of counsel fees.
 [**573]  The principal source of income of the husband was the salary he received from a corporation, known as the Paul Pet Construction Company, which had been organized soon after the marriage of the parties for the purpose of engaging in the development and construction of home sites.  Aside [***4]  from his salary, which had steadily increased over the years until it reached $ 250 per week, the husband also received from the corporation incidental weekly benefits having a worth of about $ 50.  Although the husband was the only stockholder, the control of the construction company was vested in his grandfather (Jacob Petrushansky) who was its president.  And the grandfather, to whom the corporation was indebted in the amount of approximately $ 800,000, held all of the stock as collateral for the loans made to the corporation by him and by companies he controlled.  The grandfather, who also determined the amount of the weekly compensation payable to his grandson and who had the sole authority to sign company checks, reduced the salary of his grandson to $ 150 per week several months before the trial of this case.  For several years prior to the separation of the parties, the husband had another source of income from the earnings of a sole proprietorship known as the Mercury Building Company.
The wife, who was not employed other than as a housewife, was well provided for by the husband and lived comfortably in a home they owned as tenants by the entireties.  The home 

 [*495]   [***5]  had a value of over $ 30,000, but there was an outstanding mortgage against it of $ 9,000 to $ 10,000.  The wife continued to occupy the home with the children after the separation and made use of an automobile purchased by the husband.  Through her attorney, the wife itemized the weekly amounts she considered necessary to maintain her standard of living and to support the children, the total of which was $ 131.  Alimony pendente lite in the amount of $ 135 had been allowed by the chancellor.
The grandfather testified that he reduced the salary his grandson received from the construction company from $ 250 to $ 150 per week because the company had ceased constructing homes, apparently due to the unavailability of building lots.  He further testified that he had stopped building because he was "too old" -- he was then eighty-six -- and that his grandson, if he wanted to, could continue building "on his own." While considerable testimony was offered to prove the net worth of the construction company, the real value of the company was in dispute.  Although the corporation had assets of over one and three-quarter million dollars, most of which were in the form of land installment contracts,  [***6]  there is some question as to the actual amount of its liabilities.  There was also a difference of opinion between the accountants of the respective parties as to the future profits to be realized from collections on the land installment contracts and as to the proper characterization and treatment of the debts and interest thereon due the grandfather. Other evidence revealed the amount of the earnings received by the husband before taxes from the Mercury Building Company for several years prior to the time of trial. While the earnings of this solely owned business varied from year to year with the high point of $ 7600 having been reached in 1962, the husband testified that the operation of this company had almost ceased. There was no testimony as to the prospect of future earnings.
The chancellor, in finding that the wife was entitled to a partial divorce, based the award of $ 145 per week for alimony and support primarily on the undisputed weekly salary and incidental benefits received by the husband from the construction company as of the time of trial. The wife contends, however, that the chancellor should have based the award of alimony and 

 [*496]  support on the sum [***7]  of $ 400 n1 she estimated the husband  [**574]  was earning at the time of separation. A further claim is made that an additional sum based on the projected profits of the Pet Construction Company should have been included in the award.  And it further contended that the allowance of $ 1000 for counsel fees was grossly inadequate.

n1 The sum of $ 400 was arrived at by using the former weekly salary of $ 250 and the weekly incidental benefits of $ 50 and by prorating the 1962 earnings of the solely owned Mercury Building Company on a weekly basis.

Based on the facts of this case as shown by the record, we cannot say that the chancellor was clearly in error in awarding the wife $ 75 per week as alimony and $ 70 per week as support for the children.  The award of alimony and support was within the sound discretion of the chancellor and his determination will not be set aside or modified unless the award was clearly wrong.  And inasmuch as the factors controlling an award of alimony are the needs of the wife and [***8]  the financial ability of the husband to pay, the amount of the award must necessarily depend on the circumstances in each case.  Mays v. Mays, 232 Md. 122, 192 A. 2d 80 (1963); Gosnell v. Gosnell, 208 Md. 179, 117 A. 2d 861 (1955). The wife made no claim that the award of $ 145 per week was insufficient to provide for her and the children.  Instead she indicated that her weekly needs and those of the children were less than the amount awarded.
On appeal, however, the wife contends that her husband deliberately lessened his earning capacity and debased his financial worth, and would have us consider the financial ability of the husband to pay alimony as of the time of separation rather than as of the time of trial. This, however, overlooks the evidence that sound business judgment necessitated the reduction in salary, that the value of the interest of the husband in the Pet Construction Company was in dispute, and that there is no indication of future earnings from Mercury Building Company since that operation has almost ceased. Similar claims were made and denied in Newmeyer v. Newmeyer, 216 Md. 431, 140 A. 2d 892 (1958) and in Kapneck v. Kapneck, 235 Md. 366, 201 [***9]  

 [*497]  A. 2d 798 (1964). For the same reasons given in those cases, we must deny an increase in the award in this case since the record does not support the claim that the chancellor erred in determining the amount he allowed for alimony and support of the children.  The rule of this Court, when the point under discussion is in issue, is that an award of alimony is to be based on the earning capacity and financial worth of the husband at the time of trial. Kapneck v. Kapneck, supra; Newmeyer v. Newmeyer, supra; Lewis v. Lewis, 219 Md. 313, 149 A. 2d 403 (1959). But this does not mean when it is shown that a husband, living in affluent circumstances due in part to the financial assistance or aid of a relative or other person, has had such backing withdrawn or curtailed as a result of a marital rift which threatens to charge him with larger alimony payments than might otherwise be the case, that a chancellor may not consider the earning ability and financial worth of the husband as of the time of separation. On the contrary, in a situation such as that, we know of no reason why evidence thus adduced should not be considered along with all other relevant facts and circumstances [***10]  in determining the amount of alimony to be allowed.
Although we hold in this case that the award of alimony was properly based on the overall financial ability of the husband at the time of trial, there is, of course, no reason why the award may not be increased or decreased from time to time when and as there are changes in the circumstances of the parties.  Nor is there any reason why either party should not resort to discovery for such purposes.
We are also of the opinion that the allowance of $ 1000 as a counsel fee was not inadequate under the circumstances of this case.
Decree affirmed; the appellee to pay the costs.  

74 of 138 DOCUMENTS 

GHIRADELLO v. MALINA et al.  

No. 269, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 498; 209 A.2d 564; 1965 Md. LEXIS 678 

April 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed, appellant to pay the costs.  

HEADNOTES:

Automobiles -- Uncontrolled Intersection -- Statutory Right Of Way In Favor Of Driver Approaching From Right -- Not Absolute -- Duty Of Favored Driver.  The statutory right of way created by Code (1957), Art. 66 1/2, sec. 231, in favor of drivers approaching an uncontrolled intersection from the right, is not an absolute one, but affords a relative right dependent upon the attendant environment of each particular case and springs into being only when two drivers approach an intersection in such proximity in point of time as to require accommodation of one driver by the other.  When the facts are disputed, it is a jury question (under proper instructions from the court) as to whether a vehicle approaching from the right is near enough to the crossing to be entitled to the right of way. And even though so entitled, a driver is not relieved of the duty to use reasonable care to avoid a collision. He should proceed at a lawful rate of speed, keep his car under reasonable control and be careful to avoid injury to others; and the evidence, subject to the usual [***2]  rules of burden of proof, must satisfy the jury that he has not been negligent under the tests of the cases.  When the testimony warrants, both sides are entitled to proper instructions as to their respective theories of the case.
Automobiles -- Uncontrolled Intersection -- Statutory Right Of Way In Favor Of Driver Approaching From Right -- Factors To Be Considered -- Duty Of Privileged Driver.  Although the common-law rule of the road to the effect that a motorist first entering an intersection is entitled to the right of way has been qualified by Code (1957), Art. 66 1/2, sec. 231, creating a right of way in favor of the driver approaching from the right at an uncontrolled intersection, it has not been completely abolished thereby.  Hence, the first entry into the intersection may be considered as one of the factors in determining which motorist has the right of way, but it alone is not controlling and other elements must be considered, such as, inter alia, the width of the intersecting highways, the relative rates of speed of the vehicles, their respective positions as they approach the intersection and the manner of their operation.  And although a privileged driver is [***3]  entitled to assume that his right of way will be honored by an unprivileged operator, he cannot continue to rely upon that assumption after he discovers, or reasonably should have discovered, that the unfavored driver does not intend to yield the right of way. If after such a discovery or a failure to exercise reasonable care to make the discovery, the privileged driver continues to pursue his course without exercising reasonable care for the safety of others, he may be held liable, notwithstanding his right of way. Due to the variety of circumstances which develop in actual practice, many times the final determination of the questions of primary and contributory negligence have to be resolved by deciding what an ordinarily careful and prudent person would have done under similar circumstances.
Automobiles -- Uncontrolled Intersection -- Jury Fully Instructed Upon Contentions Of Driver Approaching From Right.  In this automobile collision case, in which the plaintiff-appellant was approaching an uncontrolled intersection from the right, the Court held that the jury had been fully instructed upon his contentions.  The intersection was an unusually dangerous and hazardous [***4]  one, and the excerpt quoted from the charge began by assuming that the plaintiff had the right of way under Code (1957), Art. 66 1/2, sec. 231.  The jury was then instructed that even though privileged, such a driver should proceed at a lawful rate of speed and keep his car under such control that he can stop on short notice (the testimony of the plaintiff here rendered the "reasonableness" of his speed at this small obscured intersection a jury question).  The jury was also instructed that it was such a driver's duty to look ahead carefully to avoid injuring others approaching the intersection, and even though privileged, he was not "altogether relieved of the necessity of observing the condition of the road to his left".  There were further instructions upon the burden of proof, what constitutes negligence, contributory negligence, proximate cause and the statutory right of way created by sec. 231, developing these matters from the theories of both sides of the case.  Moreover, the trial court granted some seven written prayers requested by the plaintiff and stating his theory of the case.
Automobiles -- Uncontrolled Intersection -- Whether Driver Approaching From Right Was Driving  [***5]   His Vehicle At A Greater Rate Of Speed Than Was "Reasonable And Prudent Under The Conditions Then Existing", Within Meaning Of Code (1957), Art. 66 1/2, Secs. 211 (a) And (e) -- Question Held Properly Submitted To Jury By Trial Court In Its Instructions.
Instructions to Jury -- Automobile Collision Case -- Inadvertent Reference Upon Two Occasions To "Plaintiff" As "Defendant" Held Fully Corrected By Trial Court's Subsequent Instructions.  

SYLLABUS:

Action by Ned Ghiradello against Edward Adolph Malina and Carol Ann Malina to recover damages for personal injuries and property damage allegedly sustained in an automobile collision.  From a judgment for the defendants, entered upon an adverse jury verdict against the plaintiff, he appeals.  

COUNSEL:
Gerald H. Cooper, with whom was Leon Hoffman on the brief, for the appellant.
Kenneth R. Hammer for the appellees.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*500]   [**565]  We are, again, presented with a case involving the rights of way of the operators of two motor vehicles, arriving at an uncontrolled intersection at, or [***6]  about, the same time.  After an 

 [*501]  adverse jury verdict  [**566]  and the entry of judgment for costs against him, the plaintiff-appellant appeals.
He states his contentions as follows:

1. "Did the Court err in its instructions to the jury by:
(a) Misstating the rule of right of way?
(b) Giving instructions which had no relation to the factual situation presented by the case at bar?
2. "Did the Court err in its general charge to the jury by:
(a) Confusing the jury regarding contributory negligence?
(b) Its over-emphasis concerning the right-of-way not being absolute?
(c) Instructing the jury with qualifications of the right-of-way law that had no relevance to the facts of the case at bar?"
The testimony was not voluminous.  Appellant, a 58 year old millwright, stated that on February 16, 1963, at about 6:00 p.m., he was driving his automobile in the City of Baltimore.  He proceeded west on St. Helena Avenue until he arrived at Central Avenue, a one-way street south, about 17 feet wide.  He "had to jump the curb [7 inches high] to make a turn" south on Central.  Parking is permissible on the west side of Central, and cars were parked thereon.  He proceeded [***7]  south on Central in low gear (at about 8 to 10 miles per hour) until he reached an alley some 135 feet north of where the collision took place.  Here he shifted into second gear and was accelerating his speed (still in second gear) until he arrived at the intersection of Central with Patapsco Avenue where the collision occurred.  As he approached Patapsco, his vision to the left on Patapsco was obscured by a fence and hedge about 42 inches high (there was also a house standing near the corner).  He entered the intersection where the "manhole is at *** you got to go that far to see anything coming [from his left] on account of that hedge. * * *.  You have to pass the hedge to see what's coming." (The pictures offered as exhibits show that the manhole is well out into the intersection.) When 

 [*502]  he arrived at the intersection, his vehicle was traveling 15 to 17 miles per hour, and he was just about to shift into high gear. He said: "I told you I was going about 17 miles an hour.  I was going pretty fast, that's for sure." Upon reaching the intersection, he first looked to his right, "then I looked to my left," but "it was too late -- she [defendant-appellee] was on top [***8]  of me already ['a couple of feet away'] and she struck me." When he saw her, he "slammed" on his brakes and stopped in a very short distance.  She "sideswiped" him and brought her car to a stop some 2 1/2 car lengths beyond.  At the time of the accident, it was "just starting to get dark," and he had his "little low lights" on, which he explained were his cowl lights.
Appellant produced a Mrs. Weimer, who said she was in her home located on the northwest corner of the intersection. It was "getting dusk" at the time of the accident but it was not "dark." She saw appellant proceeding slowly south on Central and heard "the gunning of [appellee's] car motor." Appellant "had his lower lights" on, but appellee did not have "any on." She estimated appellee's speed at 30 to 35 miles an hour.  The point of impact was "not quite the middle of the intersection [a little more towards the north and west of the center thereof]." The hedge referred to above runs down to and meets the sidewalk.
Appellee, a 16 year old girl, stated that she left a parking space in the block of Patapsco Avenue immediately east of Central, where she had been visiting relatives, at a time when it was dark (also [***9]  she stated, "it was getting pretty dark").  She put on her headlights, started the motor, and pulled away from the curb.  When she reached Central, she was still in  [**567]  low gear, going between 5 and 10 miles an hour.  On her right was a house near the corner and a hedge, and a car was parked a short distance from the intersection on Patapsco.  When she reached a point about 1 1/2 car lengths from Central, she could see the street lights on the corner of St. Helena (the street immediately north of Patapsco) and the lights on McMahon's Bar.  Arriving at Central, she looked to her right for traffic and saw none; so she proceeded into the intersection, still looking to her right.  When she "got near the middle of the intersection" her passenger, another girl, yelled, "There's a car coming." Then, still 

 [*503]  looking to her right, she, for the first time and only by the aid of the street light, observed appellant's vehicle, traveling in the left lane of Central Avenue.  It was about 10 feet away and had no lights on it.  His car smashed into the right side of her automobile, and she "sort of" lost control for a few seconds, but brought her car to a stop at the corner on the [***10]  other side.  When appellant entered the intersection, he was coming "fast," and she had already just about "entered the middle of the street." After inquiring of appellant as to whether or not he was injured, she telephoned her parents and for the police.  Her testimony was corroborated in almost every detail by her passenger, a Miss Barranco.
The picture-exhibits confirm the witnesses' description of a dangerous and hazardous intersection. The streets are narrow, with houses built close to its corners, and the hedge, prominently mentioned above, certainly does not detract from the difficulties of a motorist in attempting its crossing.
From the above, it is readily seen that the testimony was conflicting.  The fact that appellant was proceeding on the left side of a narrow one-way street into an extremely dangerous intersection where his view of traffic approaching from his left was obscured, and the respective claims of darkness and light, and of lights and no lights, etc., make it clear that factors are here involved which do not occur in all accident-at-intersections cases.
I
(a)
Appellant picks out an excerpt from the trial judge's rather lengthy and able instructions [***11]  and strongly assails the same.  The excerpt follows:
"I instruct you that although a driver has the right of way, he should proceed, as I have stated, at a lawful rate of speed, keep his car under control so that he can stop on short notice, and look carefully ahead to avoid injury to any others approaching at the intersecting street, and that he is not, because of the right of way statute, which statute looks to the general welfare and safety of others as well as himself, altogether 

 [*504]  relieved of the necessity of observing the condition of the road to his left with a view of ascertaining whether or not the road is clear and free of vehicles or persons approaching from that direction."
Appellant argues that this instruction was "compiled from several of the so-called 'unfavored' driver cases, that is, cases that have arisen in situations where the 'unfavored' driver has brought suit against the 'favored' driver, alleging that the right of way rule is not an absolute rule of the road * * *." Relying very heavily upon Rabinovitz v. Kilner, 206 Md. 455, he claims that this instruction had no application to the facts involved here, and hence amounted to no more than [***12]  an abstract statement of the law, which was condemned in Rabinovitz.  He contends that he was the "favored" driver and the instruction tended to negate completely the right of way law, Code (1957), Article 66 1/2, Section 231, "as applied to the case at bar," and further asserts that he could not be found guilty of negligence, even if he failed to look to his left, for if he had looked and seen appellee approaching him, he would have had a  [**568]  right to have assumed that she would yield the right of way, citing Nardone v. Underwood, 219 Md. 326.
It is true that the previous decisions of this Court resolving the respective rights and obligations of motorists who had been involved in accidents at uncontrolled intersections disclose some rather complex and close factual situations; however, we do not deem it advisable to attempt to write a treatise on the subject-law (compare Chief Justice Warren's comment on the opinion in Culombe v. Connecticut, 367 U.S. 635), or to attempt to lay down a rule so comprehensive in nature that it will cover all of the conceivable circumstances that may attend collisions at uncontrolled intersections, or to review all of our previous [***13]  decisions in great detail, for Messrs. Due and Bishop have done so down until 1950 in an able and comprehensive manner in 11 Md. L. Rev. 159, and Judge Hammond, for the Court, in Rabinovitz, supra, did likewise, accepting many of the conclusions reached in the law review article.  For present purposes, it will suffice to mention the statutes involved, a few of this Court's previous holdings, and add, in proper places, other decisions if, and when, desirable.

 [*505]  The heart of appellant's contention here is Section 231, mentioned above.  In substance, it provides that at all uncontrolled intersections vehicles shall have the right of way over other vehicles "approaching at intersecting public roads from the left," and shall give the right of way to those approaching from the right.  Without delving into all of the niceties of the qualifications placed upon the "right of way" created by this statute by some of the decisions (compare Warner v. Markoe, 171 Md. 351; Askin v. Long, 176 Md. 545; Bode v. Coal Co., 172 Md. 406; and the numerous cases cited on pp. 378, 380 of Thomsen, A Classified Index of Motor Vehicle Cases [3rd ed.]), this Court has held on numerous [***14]  occasions that such right of way is not an absolute one.  See, for examples Creamery Co. v. Friedman, 160 Md. 526, 530; Jersey Ice Cream Co. v. Bach, 161 Md. 285, 292; Rabinovitz v. Kilner, supra. It comes into play only when two drivers come to the crossing in such proximity in point of time as to require accommodation of one by the other.  Warner v. Markoe, 171 Md. 351. The Court has stated that the right of way law gives "only a relative right dependent upon the circumstances of each particular case * * *." Bush v. Mohrlein, 191 Md. 418. It has also stated that in every case where the facts are in dispute, "it is a question of fact, whether a vehicle approaching from the right is near enough to be entitled to the right of way. * * *.  There is no doubt that the cases [this Court's] hold this, as well as that the favored driver is not relieved from the duty of using reasonable care to avoid a collision. He must proceed at a lawful rate of speed, keep his car under control, and be careful to avoid injury to others.  * * *.  All questions of fact, such as speed, diligence of observation and the relative positions of the cars at various times are, of course,  [***15]  for the jury.  [And, in order to recover against the driver approaching from the left] The favored driver must satisfy the jury that he was free from negligence under the tests of the cases." Rabinovitz, supra. In this last mentioned case, the Court held that a driver approaching an intersection from the right was entitled to have the jury instructed, in substance, of what was contained in two of his requested, but denied, prayers: one asked that if his and the defendant's vehicles "arrived at the same time at the intersection, then the appellant's 

 [*506]  vehicle had the right of way and the appellee's vehicle should have yielded;" [etc.]; the other was similar in form, but was premised upon a finding by the jury that his vehicle, approaching from the right, had entered the intersection ahead of the "unfavored" vehicle.
 [**569]  In regard to the significance that the first entry into the intersection has upon the statutory right of way named in Section 231, the Court has said that the statutory rule "qualifies the common-law rule giving the right of way to the first arrival at an intersection, but does not abrogate it.  The width of the intersecting highways, the relative [***16]  speed of the vehicles, and various other circumstances might materially affect the issue as to whether an asserted right of way should be recognized.  * * *.  In the case at bar plaintiff, even though he had the right of way, was not relieved from the duty to exercise reasonable care to avoid collision with an unprivileged vehicle.  Although a driver privileged under the statute is entitled to assume that he will be accorded the right of way (Jones v. Dickerson, 184 Md. 499), he cannot continue to rely upon such assumption after he discovers that the unprivileged driver does not intend to yield the right of way. [The Court then sets forth his duty to proceed at a lawful speed, etc. and goes on to say:] If the privileged driver continues his course without exercising reasonable care for the safety of others, he may be liable notwithstanding his right of way. * * *.  We specifically hold that where, in an action for damages resulting from an automobile collision at a street intersection, the evidence is conflicting, or more than one inference may be reasonably drawn therefrom, the question of contributory negligence is one of fact for the jury." Wlodkowski v. Yerkaitis, 190 [***17]  Md. 128. These citations and the quotations therefrom will suffice for the purposes of this case.  They demonstrate that the questions of fact as to which vehicle first enters the intersection, the respective positions of the vehicles as they approach it, their speeds, the manner of their operation, and possibly many other factors are significant in determining which motorist had the right of way, before the final determination of the questions of primary and contributory negligence.
The rationale of the cases cited is that the statutory right of 

 [*507]  way created by Section 231 is not an absolute one.  It affords a relative right dependent upon the attendant environment of each particular case, and springs into being only when two drivers approach an intersection in such proximity in point of time as to require accommodation of one by the other.  When the facts are disputed, it is a jury question (under proper instructions from the court) whether a vehicle approaching from the right is near enough to the crossing to be entitled to the right of way. And, even though entitled to the statutory right of way, a driver is not relieved from the duty of using reasonable care to avoid [***18]  a collision. He should proceed at a lawful rate of speed, keep his car under reasonable control, and be careful to avoid injury to others; and the evidence, subject to usual rules of burden of proof, must satisfy the jury that he has not been guilty of negligence under the tests of the cases.  When the testimony warrants, both sides are entitled to proper instructions relative to their respective theories of the case.
Although the common-law rule of the road to the effect that a motorist who first enters an intersection is entitled to the right of way has been qualified by Section 231, it has not been completely abolished by it; hence the first entry into the intersection may be considered as one of the factors in determining which motorist has the right of way, but it, alone, is not controlling and other elements must be considered, such as the width of the intersecting highways and the relative speed of the vehicles, etc.  And, although a privileged driver is entitled to assume that his right of way will be honored by an unprivileged operator, he cannot continue to rely upon the assumption after he discovers, or by the exercise of reasonable care should have discovered, that the [***19]  unfavored driver does not intend to yield the right of way, and, if after such discovery or failure to exercise reasonable  [**570]  care to make the discovery, the privileged driver continues to pursue his course without exercising reasonable care for the safety of others, he may be held liable notwithstanding his right of way. Thus it is seen that the decisions recognize the statutory rule, but they do not interpret it as an inflexible or absolute one, and, due to the variety of circumstances that has developed, in actual practice, many times the final determination of the questions of primary and contributory 

 [*508]  negligence has had to be resolved by an application of the well-known test -- what would an ordinarily careful and prudent person have done under like circumstances?
We now apply the above principles of law to the facts as developed by the evidence.  The excerpts quoted above are almost a verbatim statement of part of this Court's opinion in Wlodkowski v. Yerkaitis, supra, which was repeated with approval in Rabinovitz, supra; and the small portion thereof that was not explicitly stated in the opinion in those cases was clearly stated therein by implication.  [***20]  
The quoted portion, we think, was peculiarly appropriate under the factual environment shown by the testimony.  We have stated above that the streets were narrow, houses were built close to the corners of the intersection, and the fence and hedge, etc., made the crossing an unusually dangerous and hazardous one.  The excerpt begins by assuming a driver has the right of way -- plaintiff-appellant was approaching from the right; it then instructs the jury that even though privileged, such a driver should proceed at a lawful rate of speed, keep his car under control so that he can stop on short notice n1 -- appellant had testified he was driving at some 17 miles per hour through this small obscured intersection, which rendered the "reasonableness" of his speed a jury question; then the jury is instructed that it was such a driver's duty to look ahead carefully to avoid injury to others approaching the intersection and even though privileged, he is not "altogether relieved of the necessity of observing the condition of the road to his left" -- if this portion of the excerpt misstates the law, the statutory right of way would necessarily be an absolute one, which, as pointed out above,  [***21]  is not the case.

n1 See Warner v. Markoe, supra, where the driver approaching an intersection from the right was operating his vehicle through the intersection in the city at some 60 miles per hour.  The Court refused to hold that he had the right of way.

We stated that the quoted excerpt was taken from the court's rather lengthy instructions.  We do not deem it necessary to set forth the oral charge in detail.  It instructed the jury on the burden of proof, what constitutes negligence, contributory 

 [*509]  negligence, and proximate cause, and the statutory right of way created by Section 231, etc., developing these matters both from the appellant's theory of the case as well as that of the defendant's.  In addition, the court granted some seven written prayers requested by appellant, stating his theory of the case.  Thus, it is seen that the jury was fully instructed upon appellant's contentions.
This fact, alone, distinguishes Rabinovitz, supra, strongly relied upon by appellant, from the case at bar.  [***22]  There, the court refused three of appellant's prayers, and instructed the jury orally.  The instruction was a correct abstract statement of the law, but this Court held that, although one of the requested prayers was covered properly in the oral instructions, two were not; consequently a new trial was awarded.
The case of Nardone v. Underwood, 219 Md. 326, cited by appellant, is not apposite here.  There, we held that under the circumstances of that case, the appellant-plaintiff's failure to see a car approaching an intersection from the left did not "necessarily" constitute contributory negligence as a matter of law; therefore the question of contributory negligence  [**571]  should have been submitted to the jury (as it was in the case at bar).
We hold that under the factual environment of this case and in view of the other instructions given by the court, the instructions contained in the quoted excerpt were proper.
This brings us to a consideration of the second excerpt taken by appellant from the court's instructions which he contends constituted reversible error.  We shall not quote the excerpt in full.  It was an instruction based upon Code (1957), Article 66 1/2,  [***23]  Section 211 (a) and (e), which, in substance, states that no person shall drive a vehicle at a greater speed than is "reasonable and prudent under the conditions then existing," and the prima facie limits fixed by law shall not relieve a driver from his duty to decrease his speed when "approaching and crossing an intersection except through highways," or when special hazards exist.
The crux of appellant's argument here is that "there is absolutely no evidence that the plaintiff was driving his vehicle at a speed greater than was reasonable and prudent under the conditions then existing." We shall not unduly prolong our discussion 

 [*510]  of this argument.  Much of what we said above is apropos here.  The fallacy in appellant's present argument is that it assumes as a fact the very question that the jury must decide, namely, was appellant driving his vehicle at a speed greater than was reasonable and prudent under the conditions then existing? According to his own testimony, he could not see the situation to his left until he got past the hedge, and he was approaching this perilous intersection at an accelerating speed (he was just about to put it into high), he [***24]  estimated not to be over 17 miles per hour.  Without laboring the question, we think it obvious that it is one that was properly submitted to the jury for its determination.
II
(a)
This subheading gives us little difficulty.  During the course of the trial judge's initial instructions he referred to the question of contributory negligence on five occasions.  No error is claimed in regard to the propriety of the instructions as they were stated by the judge on three of these occasions; but on two of them he inadvertently used the word "defendant" where he should have said "plaintiff" (a fault that few of us who are lawyers always escape), and appellant now claims that this confused and misled the jury.
In addition to the three times that the words "defendant" and "plaintiff" were properly used in the court's oral instructions, the court granted appellant's written instruction (No. 7) relative to contributory negligence, which explicitly used the said words properly.  Moreover, when appellant's counsel called the court's attention to its inadvertence at the end of its rather lengthy instructions, the trial judge, in his supplementary instructions, again correctly instructed the [***25]  jury as to contributory negligence, and asked counsel, "Satisfactory, gentlemen?" The record extract discloses no reply.  If we assume, without deciding, that the point was properly preserved (Maryland Rule 554 d and e; Ridgley, Exec. v. Beatty, 222 Md. 76, 85; Casey v. Roman Catholic Archbishop, etc., 217 Md. 595), it is clear to us that the inadvertence alluded to was fully corrected by the court's subsequent instructions, and we so hold.

 [*511]  (b) and (c)
We are unable to find where the questions raised in these subheadings were properly reserved for our review.  Maryland Rule 554 d and e.  However, many of the arguments made under II (c) have already been discussed and answered above.
Judgment affirmed, appellant to pay the costs.  

75 of 138 DOCUMENTS 

COWANS And HAYES v. STATE (Two Appeals in One Record) 

No. 228, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 433; 209 A.2d 552; 1965 Md. LEXIS 672 

April 29, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments and sentences affirmed.  

HEADNOTES:

Criminal Law -- No Affirmative Advice To Arrestee Of Right To Counsel, And Failure To Inform Him Of Right To Remain Silent, Do Not Make Confession Inadmissible Where It Was Freely And Voluntarily Given Under Totality Of Attendant Circumstances -- Question Also Not Reserved For Appellate Review Here.  The decisions of the Supreme Court of the United States do not make an affirmative advising of an arrestee of his right to counsel, before the taking of a confession, a prerequisite to its admissibility into evidence (in a State prosecution), provided that the confession was freely and voluntarily given under the totality of the attendant circumstances, nor does a failure to inform, explicitly, an arrestee of "his right to remain silent" destroy the voluntary character of his confession and thereby render it inadmissible. In the present criminal cases, where there was no evidence of a request for counsel during confinement or interrogation, the Court held that under the totality of the attendant circumstances the confessions of the defendants were freely and voluntarily [***2]  given and, therefore, were admissible into evidence.  In any event, the question was not reserved for appellate review under Maryland Rule 885, no objection having been made below upon the question raised here.  

SYLLABUS:

Ronald Vernon Cowans and Earl Carlton Hayes were convicted by the trial court, sitting without a jury, of two offenses of assault and of two offenses of robbery.  From the judgments entered thereon, they appeal.  

COUNSEL:
Robert V. Lazzaro and Harold Buchman for the appellants.
Loring E. Hawes, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Andrew J. Graham, Assistant State's Attorney, on the brief, for the appellee.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*434]   [**553]  Appellants, Hayes and Cowans, were convicted in the Criminal Court of Baltimore by a judge, sitting without a jury, of two offenses of assault and two offenses of robbery, and, after denial of their motions for new trials by the Supreme Bench of Baltimore City and sentences by the [***3]  trial judge, have appealed.
Two questions only are presented for our consideration: (1) Were appellants' confessions rendered inadmissible because the police did not affirmatively advise them of their right to counsel in the absence of any request therefor, and the police did not explicitly inform them that they had a right to remain silent, even though they were advised that the police were "not going 

 [*435]  to threaten you in any way and what you say must be free and voluntary on your part [italics added]"; and (2) Were the confessions inadmissible because appellants were not taken before a committing magistrate before the confessions were given?
On September 22, 1963, at about 10:30 p.m., a Baltimore City College student, Ralph Beam, was attacked by two young thugs in the 1700 block of Lamont Avenue in Baltimore City.  While one of the assailants held a knife at Beam's throat, the other stole his wallet, which contained a fishing license, pictures, and identification cards.  Beam was standing beside his father's automobile when attacked. He was subsequently treated at St. Joseph's Hospital for a stab wound in his left side.  Beam identified the appellants in court [***4]  as his assailants, although he admitted that he had not positively identified them as such at the police station on the night of the occurrence.  There was some indication that Beam had known Cowans previously while both were at Clifton Park Junior High School.
About one hour later that same evening Mae Brannon, a nurse at St. Joseph's Hospital, Baltimore, was attacked while getting ready to start her car across the street from the hospital.  Two "colored boys" approached her car, opened the door, and ordered her out.  The shorter one grabbed her around the neck and yanked her out of her car.  The young thugs took her wallet and pocketbook and drove away in her 1963 Rambler.  She reported the assault and automobile theft to the police at once.
Shortly thereafter, while cruising in an unmarked radio car, Officer Boston spotted the Brannon vehicle in the 1400 block of Wolfe Street, after having heard a description thereof over the radio.  Boston apprehended the appellants in the Brannon car.  The appellants had in their possession Beam's wallet containing the fishing license, Mrs. Brannon's wallet, a pocket knife (Cowans'), and some money.
The appellants were brought to the Eastern [***5]  District Police Station at 11:45 p.m., were booked and placed in separate cells.  The following day Hayes was interrogated  [**554]  from 1:25 p.m. until 4:45 p.m. While he at first denied any knowledge of either robbery, he soon confessed that he had participated in both crimes, and his confessions were reduced to writing.  The two 

 [*436]  police officers present at the interrogation testified that there were no threats, inducements, promises, nor any form of coercion employed during the interrogation, and that the confessions were voluntarily given.  The written confessions each contained a statement by the interrogating officer advising Hayes that "what you say can be used for or against you in Court." Although he testified he didn't remember signing the statements, Hayes admitted that the signatures were his.
Cowans was interrogated from 1:05 to 1:20 p.m. on September 23; from 4:45 to 5:05 p.m. on the same day; and from 10:05 a.m. until 11:15 a.m. on the 24th.  He confessed, on the 24th, to both crimes after being "confronted with Hayes." Written statements similar in form to Hayes' statements were transcribed and signed.  Both appellants were taken before a committing magistrate [***6]  on September 25th at 3:00 p.m.
Objections to the admission of the confessions were raised by defense counsel on the basis of (1) "long delay between the arrest and the booking" of the appellant Hayes, and (2) the lapse of "36 hours between the time of arrest and the time of the statement," in the case of Cowans.  Judge Oppenheimer found that each of the statements was "given entirely voluntarily, free from any duress, coercion, force or promise." He further found the statements of the various officers who testified "entirely credible," and he "[did] not believe the testimony of defendants on this point." The objections were overruled.
There was no evidence of a request for counsel during confinement or interrogation by either appellant.  No objection was made by either defense counsel on the basis that counsel had been denied appellants during confinement, or that the police failed to advise them of their right to counsel or of their right to remain silent.
I
We are, of course, familiar with and have carefully studied the Supreme Court's decisions in Gideon v. Wainwright, 372 U.S. 335, Massiah v. United States, 377 U.S. 201, and Escobedo v. Illinois, 378 U.S. 478. [***7]  We do not interpret these cases, or any other decision of that Court, as making an affirmative advising of an arrestee of his right to counsel, before the taking 

 [*437]  of a confession, a prerequisite to its admissibility (in a State prosecution) provided, of course, that the confession was freely and voluntarily given under the totality of the attendant circumstances, or that a failure to inform, explicitly, an arrestee of "his right to remain silent" destroys the voluntariness of his confession and thereby renders it inadmissible. And we have so recently had occasion to analyze and state the Court's understanding of the holdings in the above decisions, if we do so here, it will amount to no more than unnecessary repetition.  See Green v. State, 236 Md. 334; Parker v. Warden, 236 Md. 236; Wilkins v. State, 237 Md. 617; Mefford and Blackburn v. State, 235 Md. 497, cert. den. 380 U.S. 937.
We are, likewise, familiar with the decisions of People v. Dorado, 394 P. 2d 952 (Cal.), and 398 P. 2d 361; and State v. Neely, 398 P. 2d 482 (Or.).  But we are also aware of the decision of the Court of Appeals of New York in People v. Gunner, 205 N. E. 2d 852, [***8]  just decided, wherein the interpretation of the Supreme Court's decisions is quite similar to that of this Court.  We reaffirm this Court's analyses of the Supreme Court's decisions made in Mefford and Blackburn, supra, and hold that under the totality of the attendant circumstances the appellants'  [**555]  confessions were freely and voluntarily given and therefore were admissible. The trial judge found: "I find each of these statements [appellants' confessions] was given entirely voluntarily, free from any duress, coercion, force or promise," and this finding was amply supported by the evidence.
In any event, the question was not reserved for our decision under our rules of court.  Maryland Rule 885.
(2)
This exact question was raised in Taylor v. State, 238 Md. 424, with a ruling adverse to appellants' claim here.  For the reasons assigned in our opinion therein, we hold that the contention is without merit.
Judgments and sentences affirmed.  

76 of 138 DOCUMENTS 

JENKINS v. STATE 

No. 276, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 451; 209 A.2d 616; 1965 Md. LEXIS 674 

April 29, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Caroline County; Carter, C. J., and Keating and Rasin, JJ.  

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Confessions -- Voluntariness -- "Totality Of Circumstances," Including Appellant's Mental Capacity And Length Of Interrogation, Not Sufficient To Show That Appellant's Will Was Overborne.  In the instant case the appellant, who was convicted of murder and robbery, contended that because he had an I.Q. of but 67 and mild organic brain damage, could be easily led, had poor ability to read and spell (in the opinion of one psychiatrist), and was questioned for some nine hours by seven policemen, his "confession was not the product of an essentially free and unconstrained choice * * *" and "the totality of circumstances did not evidence an understandable admission of incriminating evidence." However, the Court stated that there were a number of facts in this case which together explained why the three judges and then the jury reasonably could have concluded that appellant had freely and understandingly confessed. There was evidence that his mental capacity was sufficient and the Court stated that the questioning was not unduly long or persistent [***2]  or by relays of interrogators.  Moreover, the Court thought that the confession was made, not so much because appellant was weak, but because he was confronted with his clothing taken from his house, which he knew was identified with the crimes of which he was suspected.  It was held that the "totality of circumstances" in this case lent no more probability, if as much, to a conclusion that appellant's will was overborne than did the totalities in other cases in which claims of inadmissibility of confessions were rejected.
Criminal Law -- Confessions -- Voluntarily Made Without Counsel Held Admissible -- Appellant Did Not Request Counsel Before Or During The Confession.  In the instant criminal case the appellant contended that his confession should not have been admitted into evidence since he was denied counsel while being interrogated.  However, on the record it was plain and unchallenged that not until appellant had finished his confession and it was in typewritten form was there even mention of an attorney.  The Court pointed out that if the confession was freely and voluntarily given, as the judges and the jury in the case at bar had a right to find from the testimony [***3]  was the fact, it would not be made inadmissible under Maryland law merely because the confessor either was not warned of his constitutional right to remain silent or was without the advice of counsel, or both.  It was held that the admissibility of the incriminating admissions which appellant made before he mentioned that he would wait to sign the paper on which they were written until he talked to a lawyer was not destroyed because he decided after he had made them that he would like to retract them or to prevent their being used by refusing to sign them formally.
Criminal Law -- Confessions -- Voluntariness -- Police Statement That "What You Say May Be Used For Or Against You" Held Not To Amount To An Improper Inducement To Confess.  The appellant in the instant criminal case contended that his confession should not have been admitted into evidence because the statement of the police to the appellant before he began to make the confession which was transcribed, that "what you say may be used for or against you in the Criminal Court," amounted to an improper inducement because it could well have led him to believe he would be helped by the court if he confessed. It was  [***4]  held that this contention, which has been rejected by the cases, was without merit, and that there was nothing in the instant record to require a departure from the controlling precedents.  Appellant did not claim that in fact he received the impression from the statement in question that he might receive clemency in the future if he confessed. The Court stated that the meaning the words "for or against you" would seem necessarily to convey would be that if the statement was used in the criminal court, whatever in it which was exculpatory would help the suspect and whatever was inculpatory would hurt him.  Any likelihood that the use of the word "for" would suggest that the giving of a statement would be helpful to the confessor, would be simultaneously offset by the use of the immediately following words "or against you," particularly since the phrase "for or against you" closely followed the statement that "no one will make you any promises." The effect which could be expected to be produced on the suspect would seem to be that if he tells the truth and the truth that hurts him is presented at the trial, the truth that helps him will also be presented.
Searches and Seizures [***5]  -- Where Consent To, Was Freely Given, Evidence Was Lawfully Obtained And Use To Persuade Appellant To Confess And At Trial Was Proper.  In the instant criminal case it was held that there was no substance to appellant's claim that the search of his home and the seizure of his clothes was illegal and that the confronting of the appellant with the clothes during his interrogation was impermissible.  There was nothing in the record to even hint that appellant did not freely give his written consent to the search and seizure. Since the appellant's clothing came into police hands lawfully, their use in persuading the subject to confess and as evidence at the trial was not contrary to law or improper.
Criminal Law -- Insanity As A Defense -- Submission Of Issue To Jury Held Not Prejudicial Where Appellant Did Not Offer Evidence Of Insanity At The Time Of Trial Or At The Time Of The Offenses Sufficient To Overcome The Presumption Of Sanity -- Issue Of Insanity Should Not Have Been Submitted To Jury.  In the instant case the appellant, who was convicted of murder and robbery, contended that the State did not prove that he was sane at the time of the commission of the offenses [***6]  and sane at the time of the trial.  The Court pointed out that subsequent to appellant's trial several cases were decided and the law on this issue was held to be in effect that (1) a man is presumed to have been sane and responsible for his acts at the time he committed a crime until there is adduced proof of his inability "to distinguish between right and wrong and understand the nature and consequences of his acts as applied to himself" (the M'Naghten rule) sufficient to raise a doubt as to his sanity as defined in the minds of reasonable men ("Evidence of some undefined mental disorder or instability is insufficient proof to overcome the presumption of sanity"), and (2) when there has been offered proof of insanity so defined sufficient to overcome the initial presumption of the sanity of the accused the State must prove sanity, as well as the other elements of the offense charged beyond a reasonable doubt. However, if the court finds the evidence insufficient to raise the question of defendant's sanity in the minds of reasonable men, the issue of insanity should be withdrawn from the jury's consideration.  The judges and counsel in the case at bar, however, did not have the benefit [***7]  of the views of this Court on the law of insanity in criminal cases, substantive and procedural, at the time of the trial.  The trial judges did not rule preliminarily, as a matter of law -- at least not formally or on the record -- as to appellant's sanity either at the time of trial or at the time of the crime but submitted those issues separately to the jury.  They did instruct the jury, both on the aspect of the appellant's sanity at the time of trial and his sanity at the time of the crime, that every person is presumed to be sane and in order to rebut that presumption it is necessary that evidence be introduced sufficient to cause a reasonable mind to question whether he was sane and, if evidence to that extent has been introduced, the presumption is overcome, and the State must prove the defendant sane beyond a reasonable doubt. Further, the trial court properly instructed that the M'Naghten rule was the test to determine sanity at the time of the offense.  Counsel for the State and for appellant did not take any exceptions to the court's charge on the point or request additional instructions.  No evidence of M'Naghten insanity was offered during the trial on the point of insanity [***8]  now and no legally persuasive testimony was given on the point of insanity at the time of the offenses.  It was held that there was no prejudice to appellant, either in the submission of the issues of sanity to the jury or in the instructions of the court, because the record made it apparent that, as a matter of law, appellant did not offer evidence of insanity at the time of the trial or at the time of the offenses sufficient to overcome the presumption that he was sane at both times, and the issue of insanity now and then should not have been submitted to the jury.  

SYLLABUS:

David Jenkins was convicted in a jury trial of first degree murder and robbery and from the judgments entered thereon, he appeals.  

COUNSEL:
Russell J. White and H. Lee Allers, Jr., for appellant.
Richard M. Pollitt, Special Attorney, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and James Owen Knotts, State's Attorney for Caroline County, on the brief, for appellee.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*455]   [**618]  On February [***9]  1, 1963, the proprietor of a small neighborhood grocery store in east Baltimore was robbed after he had been brutally and sadistically murdered behind the meat counter of his store by being hit on the head with a soft drink bottle, stabbed repeatedly with a knife and having his head and face split by a meat cleaver.  Two days later the police arrested the appellant, David Jenkins, also known as David Bladen, on the street near the store.  Jenkins had formerly lived across from the store and had been a customer.  The police, it would seem, had probable cause to believe the appellant committed the crimes, inasmuch as the record does not indicate that the legality of his arrest was challenged below and no point is made of it on appeal.  Jenkins was placed in a cell in the Eastern police station thirty minutes after he was arrested.  About an hour later, at four-forty-five p.m., he was taken to a room on the second floor and questioned by Sergeant Hirsch and Lieutenant Glover in the presence of five other policemen. Jenkins was given supper at six o'clock and took fifteen to twenty minutes, according to one police witness and from twenty-five minutes to a half hour, according to another,  [***10]  to eat it.  After supper the appellant was again questioned until about ten o'clock when, after he made significant oral admissions, he signed a typed consent to the search of his home.  The police went to the home 

 [*456]  and after showing the consent to the woman with whom Jenkins was living, were admitted by her and allowed to search.  About eleven-fifteen they brought back to the station house a blue jacket with the word "Patterson" on the back, a khaki "army-type" shirt, both with blood on them, and a hooded gray sweater, which they had found in Jenkins' room.
A route salesman had seen a man wearing a blue jacket with the word "Patterson" on the back in the grocery store an hour or so before the murder and remembered that the customer did not have all of the twenty-cent price of a box of soap powder and that, as a result, it was arranged between the man and the storekeeper to leave the box on the counter until the buyer returned with the full purchase price.  The box of soap powder in a brown paper bag was on the counter when the police investigated the murder. The appellant was seen later in the day of the murder by members of his family with money in his possession.  [***11]  
The khaki army shirt had two buttons missing from its front.  A button which matched those on the shirt had been found on the floor of the grocery store under the body of the murdered grocer, which was lying face up.
When the appellant was shown the jacket, the shirt, and the sweater, he told the police he was ready to give them a statement and he did so for about an hour, beginning at eleven-twenty p.m. Before he began the statement he was told by Lieutenant Glover that what he said must be free and voluntary on his part, that no one would make him any promises or harm him in any way and that "what you say may be used for or against you in the Criminal Court," and the appellant said he understood what had been told him and was still willing to tell what took place in the grocery store.
In the statement Jenkins said he told another man, one Cox, who "needed some money," about the grocery store. The man then said he was planning to rob the store.  The appellant told him to wait and went in the store and "bought eight cents worth of some candy and bubble gum" (bubble gum was found by the police in the pocket of the blue "Patterson" jacket).  He came out and Cox told him to keep a [***12]  watch while he went in the store.  When appellant, soon after,  [**619]  went back in the store, 

 [*457]  Cox and the grocer were fighting.  Appellant took money from the cash register.  He saw Cox with a bottle in his hand at one time and with a knife in his hand at another, and a little later he saw Cox hit the grocer in the face with a meat cleaver.  Jenkins had worn the khaki shirt and the hooded gray sweater.  Cox had worn the blue "Patterson" jacket, which Jenkins had lent him.  (Investigation and a lie detector test convinced the police that Cox had nothing to do with the murder or the robbery.)
Jenkins' statement was typed by Officer Cohen as Jenkins gave it.  When it was finished, Jenkins read it -- all of it aloud, said one police witness, enough of it aloud to show he could read and understand it, and the rest to himself, say others -- made corrections, and initialled the corrections. He also initialled the beginning and the end of each page so that nothing could be added or deleted.  He would not sign the statement in the customary places (at the end of each of the three pages of the statement), as the police requested but, after a while, did sign each page on the [***13]  margin.  The witnesses were sequestered and the three policemen who testified as to why Jenkins would not sign at the bottom of the pages were in substantial, although not identical, accord.
Lieutenant Glover testified Jenkins said: "I will wait until I sign it" and said nothing about an attorney.  Glover's words, in part as to this, were: "He said he wouldn't sign but he did, on his own, sign the margin."
Officer Cohen, who typed the confession, said that when Jenkins was asked to sign at the bottom of the pages, he said he "didn't want to sign at that time." He said nothing about an attorney, "he just said he wanted to wait." He said Jenkins signed the margins of his own accord.
Sergeant Hirsch's recollection was that when he was asked to sign the confession Jenkins said he would wait before he signed it -- that he "thought he should wait until he got an attorney." He did not ask for an attorney or seek the services of an attorney then or later, although he was given an opportunity to do so several times on succeeding days.  The only request he made was that a Catholic priest be brought to him, and this was done.  Hirsch's belief was that Jenkins was willing to certify as true [***14]  what he had told police by signing on the margins, but 

 [*458]  that he was not willing to formalize his statement as a "confession" by signing it at the end.
Jenkins was granted a change of venue and was tried in Denton before Chief Judge Carter and Judges Keating and Rasin and a jury.  The jury found him guilty of first degree murder, without qualifying its verdict, and guilty of robbery.  The sentences were death for murder and twenty years for robbery.  The judges would not admit Jenkins' confession in written form because of his refusal to sign it in a customary fashion, but did permit Officer Cohen, who had transcribed it, to use the writing to refresh his recollection as to what Jenkins had said and to relate his statements and answers to the jury for their ultimate determination as to their validity and effect, under appropriate instructions.
On appeal Jenkins makes three contentions: first, the confession was improperly admitted; second, the search of his home and the seizure of his clothing was illegal; and third, the State did not meet the burden of showing him to have been sane at the time of the commission of the crime and at the time of trial.
Appellant does not [***15]  claim that the police officers were not truthful or accurate when they testified that no force, duress or threats were used to obtain the confession or when they said that no specific promises of immunity were made to induce him to confess. Rather, he relies on the claims that because he had an I.Q. of but 67 and mild organic brain damage, can be easily led, has poor ability to read and spell (in the opinion of one psychiatrist), and was questioned for some nine hours by seven policemen, "the confession was not the product of an essentially  [**620]  free and unconstrained choice * * *" and "the totality of circumstances did not evidence an understandable admission of incriminating evidence."
There are a number of facts which together explain why the three judges and then the jury reasonably could have concluded, as the judge actually, and the jury in all probability, did, that Jenkins had freely and understandingly confessed. He was twenty-four years old.  The doctors who testified at the trial said that many people with an I.Q. of sixty-seven can and do lead useful lives.  Jenkins had gone through the ninth grade at school and, in the opinion of the doctors, had the intellectual [***16]  

 [*459]  capacity of a sixth grade graduate.  It seems unquestioned that Jenkins read aloud at least the first page of the confession and read the other pages to himself, and that he made several corrections, including the correction of a misspelled word, and initialled the changes.  His capacity to resist being "easily led" was sufficient to enable him to refuse to confess from four-forty-five p.m. to eleven-thirty p.m. and, after he had confessed, to refuse to sign the pages of the confession as he was urged to do.  It would also seem beyond question that the confession was made, not so much because he was weak, but because he was confronted with his clothing taken from his house, which he knew was identified with the crimes of which he was suspected.
The questioning was not unduly long or persistent or by relays of interrogators.  It was interrupted by a supper break, one hour and a quarter after it began, and by the trip to the appellant's house that began about three and one half hours after questioning resumed after the supper break, the trip occasioning a cessation of questioning until eleven-twenty, when the confession began.  The record indicates that only Lieutenant Glover [***17]  and Sergeant Hirsch did the questioning.
The "totality of circumstances" here lends no more probability, if as much, to a conclusion that Jenkins' will was overborne than did the totalities in Bean v. State, 234 Md. 432, and cases cited, and in Green v. State, 236 Md. 334, in which claims of inadmissibility of confessions were rejected.  See also Hammond v. State, 174 Md. 347; and Taylor v. State, 187 Md. 306.
Jenkins' second argument on the confession is that he was denied counsel while being interrogated and, therefore, for this reason alone, the confession was inadmissible. On the record it is plain and unchallenged that not until Jenkins had finished his confession and it was in typewritten form was there even mention of an attorney.  If the confession was freely and voluntarily given, as the judges and the jury had a right to find from the testimony was the fact, it would not be made inadmissible under Maryland law merely because the confessor either was not warned of his constitutional right to remain silent or was without the advice of counsel, or both.  In Dyson v. State, 238 Md. 398, we again so held, relying on some nine very recently 

 [*460]  cited [***18]  cases, all to the same effect, the earliest having been decided in 1962.
The admissibility of the incriminating admissions which Jenkins made before he mentioned that he would wait to sign the paper on which they were written until he talked to a lawyer was not destroyed because he decided after he had made them that he would like to retract them or to prevent their being used by refusing to sign them formally.  As we pointed out in Mefford and Blackburn v. State, 235 Md. 497, cert. den. 380 U.S. 937, 13 L. Ed. 2d 825, we read Escobedo v. Illinois, 378 U.S. 478, 491, 12 L. Ed. 2d 977, to hold no more than that where the suspect "*** has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent * * *," the accused has been denied assistance of counsel and his statement made without  [**621]  the advice of counsel is inadmissible against him at his trial.  The facts of Escobedo are not the facts of this case.  Jenkins did not ask for and was never denied counsel.  He confessed without asking for a lawyer or speaking of a lawyer.  In Hyde v. State, 228 [***19]  Md. 209, 224, cert. den. 372 U.S. 945, 9 L. Ed. 2d 970, the suspect made an oral statement and was asked to write it out.  After writing a part he stopped and said he would like an attorney before he finished. Chief Judge Prescott for the Court said: "Obviously, Hyde's early oral statements, as related by Officers Gietka and Sizemore and Lt. Hohman and made before any mention concerning counsel was made by Hyde were admissible."
Appellant's third argument in support of his first contention, which is that the statement of the police to the appellant before he began to make the confession which was transcribed, that "what you say may be used for or against you in the Criminal Court," amounted to an improper inducement because it could well have led him to believe he would be helped by the court if he confessed, is not only inherently unpersuasive but has been rejected by the cases.
In 3 Wigmore on Evidence (3rd Ed. 1940), Sec. 837, p. 276, the learned author discusses the use by a police interrogator of the phrase "what you say may be used for or against you," pointing out that in England in the first half of the nineteenth 

 [*461]  century the policy of almost total exclusion [***20]  of confessions had gone so far that in three cases the use of the words "what you say will be used for you" was held to require exclusion of the ensuing confessions, and that these cases were overruled in 1852 in Reg. v. Baldry, 2 Den. Cr. C. 430, 169 Eng. Reg. 568 (Lord Campbell, C. J., Pollock, C. B., Parke, B., Erle and Williams, JJ.) and saying of the overruled cases: "*** these rulings were repudiated and some check was thus put to the extravagant policy of exclusion." In Baldry the judges agreed explicitly with the views of the English text writer, Taylor, which can now be found in abbreviated form in 1 Matthews & Spear, Taylor on Evidence (11 Ed., 1920), Secs. 881B and 884; Baron Parke saying, at p. 574 of 169 Eng. Rep., that as to the three earlier English cases:

"I confess that I cannot look at the decisions without some shame when I consider what objections have prevailed to prevent the reception of confessions in evidence; and I agree * * *, that the rule has been extended quite too far, and that justice and common sense have, too frequently, been sacrificed at the shrine of mercy."
Wigmore suggests, accurately it would appear, that the holding [***21]  of the Baldry case is now generally the law in the United States.  See Commonwealth v. Dascalakis (Mass.), 137 N. E. 879, relying on Commonwealth v. Storti (Mass., Holmes, C. J.), 58 N. E. 1021; Roesel v. State (N. J.), 41 Atl. 408, 413, 416; and Osborn v. People (Colo.), 262 P. 892.
It is certainly the law in Maryland.  In Hammond v. State, supra, at p. 355, Judge Urner, for the Court, said:
"Reference was made in the argument for the defendant to the recital in his confession of a warning that anything he would say might be 'used for or against' him, and certain Texas and early English cases were cited in connection with the suggestion that, because of the defendant's nervous condition and limited intelligence, the use of the word 'for' in addition to 'against' in the phrase quoted from the caution given 

 [*462]  him might have induced him to hope for some resulting favor.  The Texas cases were governed by a statute specifying the form of warning to be given before a confession is received, and it is frankly stated in the appellant's brief that, according to the later English rule, the use of the words 'for and  [**622]  against' in such a caution [***22]  to the accused does not render his confession inadmissible. [Reg.] v. Baldry, 5 Cox, Cr. Cas. 523.  The confession in the present case not only recites the warning in the form quoted, and admits the absence of any threats or promises, but also states that the defendant made the statement of his 'own free will.' Upon the evidence in the record we could not justly hold that the rulings as to the admissibility of the confession and the prior statement were erroneous."

See also Green v. State, supra; Bichell v. State, 235 Md. 395; Bean v. State, supra.
There is nothing in the record before us to require a departure from the controlling precedents.  Jenkins does not claim that in fact he received the impression from what Lieutenant Glover told him that he might receive clemency in the future if he confessed, and, indeed, it is difficult to see how he could convincingly or plausibly make that claim.  The meaning the words "for or against you" would seem necessarily to convey would be that if the statement was used in the criminal court, whatever in it which was exculpatory would help the suspect and whatever was inculpatory would hurt him.  Any likelihood that [***23]  the use of the word "for" would suggest that the giving of a statement would be helpful to the confessor, would be simultaneously offset by the use of the immediately following words "or against you," particularly since the phrase "for or against you" closely followed the statement that "no one will make you any promises." The effect which could be expected to be produced on the suspect would seem to be that if he tells the truth and the truth that hurts him is presented at the trial, the truth that helps him will also be presented.
There is no substance to appellant's claim that the search of his home and the seizure of his clothes was illegal and the confronting 

 [*463]  of the appellant with the clothes during his interrogation was impermissible.  There is nothing in the record to even hint that Jenkins did not freely give his written consent to the search and seizure. Since the appellant's clothing came into police hands lawfully, their use in persuading the subject to confess and as evidence at the trial was not contrary to law or improper.
The final contention of the appellant is that the State did not prove that he was sane at the time of the commission of the offenses [***24]  and sane at the time of the trial.
Bradford v. State, 234 Md. 505, 510, decided by this Court on May 4, 1964, held that (1) a man is presumed to have been sane and responsible for his acts at the time he committed a crime until there is adduced proof of his inability "to distinguish between right and wrong and understand the nature and consequences of his acts as applied to himself" (the M'Naghten rule) sufficient to raise a doubt as to his sanity as defined in the minds of reasonable men ("Evidence of some undefined mental disorder or instability is insufficient proof to overcome the presumption of sanity"), and (2) when there has been offered proof of insanity so defined sufficient to overcome the initial presumption of the sanity of the accused the State must prove sanity, as well as the other elements of the offense charged beyond a reasonable doubt.
Rowe v. State, 234 Md. 295, decided by a divided Court on April 7, 1964, held among other things that the standard for determining sanity at the time of trial, as well as at the time of the crime, was that of the M'Naghten rule.
Fowler v. State, 237 Md. 508, decided February 11, 1965, held that the court should determine [***25]  as a preliminary matter of law whether there has been offered evidence of insanity under the M'Naghten rule, sufficient, if believed, to raise a question in the minds of reasonable men whether defendant is or is not insane, and if there is sufficient such evidence the  [**623]  jury must be instructed that the burden is on the State to prove the defendant sane beyond a reasonable doubt. If the court finds the evidence insufficient to raise the question of defendant's sanity in the minds of reasonable men, the issue of insanity should be withdrawn from the jury's consideration.

 [*464]  The trial in the case before us took place in February 1964 so that the three judges and counsel did not have the benefit of the views of this Court on the law of insanity in criminal cases, substantive and procedural, established by the Bradford, Rowe and Fowler cases.  The trial judges did not rule preliminarily, as a matter of law -- at least not formally or on the record -- as to Jenkins' sanity either at the time of trial or at the time of the crime but submitted those issues separately to the jury.  They instructed the jury, both on the aspect of the appellant's sanity at the time [***26]  of trial and his sanity at the time of the crime, foreshadowing Bradford, that every person is presumed to be sane and in order to rebut that presumption it is necessary that evidence be introduced sufficient to cause a reasonable mind to question whether he was sane and, if evidence to that extent has been introduced, the presumption is overcome, and the State must prove the defendant sane beyond a reasonable doubt. The court properly instructed that the M'Naghten rule was the test to determine sanity at the time of the offense.
Counsel for the State and for Jenkins did not take any exceptions to the court's charge on the point or request additional instructions and we find no prejudice to the appellant, either in the submission of the issues of sanity to the jury or in the instructions of the court, because we think the record makes it apparent that, as a matter of law, Jenkins did not offer evidence of insanity at the time of the trial or at the time of the offenses sufficient to overcome the presumption that he was sane at both times.
To show that he was insane, Jenkins offered the testimony of Dr. Lerner, a psychiatrist, who testified that he had talked to Jenkins for an [***27]  hour and a quarter or an hour and a half on December 13, 1963, over two months before the trial, and that, in his opinion, the accused was not "well enough" to stand trial or assist in his trial "at that time." In response to questions from the court, Dr. Lerner limited his opinion of the inability of the accused to stand trial precisely, saying it was as of "*** that time when I examined him." When asked if he could say whether Jenkins had been competent to assist in his defense and advise counsel yesterday, was today and would be 

 [*465]  tomorrow, Dr. Lerner answered: "No, I can't -- I can not.  I would have to subject him to another examination." Dr. Lerner would not attempt to say that Jenkins now was or ever had been insane under the M'Naghten test, going only as far as to say that he had some doubt that he was sane at the time of the offense.  He immediately qualified this by adding: "Under the canon of the Maryland State law, I am not sure one way or the other." Later, when asked specifically by Judge Rasin if the court correctly understood that Dr. Lerner "was unable to determine whether he [Jenkins] was or whether he was not" sane on February 1, 1963, the day of the [***28]  crimes, Dr. Lerner answered: "Definitely, I am not able to determine that, Sir." There was no evidence of M'Naghten insanity, as required by the Rowe case, offered during the trial on the point of insanity now and no legally persuasive testimony on the point of insanity at the time of the offenses.
The staff at Clifton Perkins Hospital had advised the court that Jenkins was competent to stand trial and this was the view of Dr. Prado, Director of Forensic Psychiatry for the State of Maryland.  The trial judges had, of course, observed Jenkins for the several days of the trial and had heard him respond to questions from his counsel and from them at various stages of the trial.  In pronouncing sentence the  [**624]  court said to Jenkins that the jury had properly found him to be sane at time of trial and at time of commission of the crimes, and added: "You are not a stupid man.  *** We don't believe that's the situation.  We don't believe the evidence bears that out or justifies that conclusion * * *" (referring to Jenkins' claims that he was illiterate and if not legally insane, very close to it).
It is not entirely clear whether the court thought the evidence sufficient to [***29]  raise a doubt of sanity in the minds of reasonable men and, for this reason, submitted the issues of sanity to the jury, or whether the judges thought the law was that the jury must decide those questions.  It may well have been the latter because the court's instructions, both on insanity now and insanity then, told the jury they should consider the facts adduced "*** and if you believe that those facts, taken together, are sufficient to cause a reasonable person to question whether he is sane or not, then you would consider that the presumption of sanity had been overcome by that evidence."

 [*466]  Whatever the reason the issues of sanity went to the jury, the appellant was not hurt. In our view, there was not sufficient evidence of insanity to rebut the presumption of sanity and the issues of insanity now and then should not have been submitted to the jury.  Fowler v. State, supra; O'Connor v. State, 234 Md. 459; Bradford v. State, supra; Lipscomb v. State, 223 Md. 599. See also Dunn v. State, 226 Md. 463; Hyde v. State, supra.
Jenkins received the full protection the law affords an accused.  He was assisted in his defense before a jury by competent, conscientious [***30]  and diligent lawyers.  The record discloses the presiding judges were scrupulously careful in recognizing and enforcing his rights and the obligations of the State in the course of the prosecution.  He had a fair trial, free from error prejudicial to him.
Judgments affirmed.  

77 of 138 DOCUMENTS 

BROOKHART v. STATE 

No. 255, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 625; 209 A.2d 601; 1965 Md. LEXIS 693 

April 29, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Carrying And Concealing Two Revolvers -- Evidence Was Sufficient To Convict.  

SYLLABUS:

William Vincent Brookhart, Jr., was convicted in a trial without a jury of carrying two revolvers, concealed upon and about his person and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted by Stanley J. Schapiro for appellant.
Submitted by Thomas B. Finan, Attorney General, Carville M. Downes, Assistant Attorney General, and Charles E. Moylan, Jr. and James A. McAllister, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

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

OPINIONBY:
PER CURIAM 

OPINION:

 [*625]   [**602]  The appellant's sole contention is that the evidence was insufficient to support his conviction by the trial court, sitting without a jury, on a charge of carrying two revolvers, concealed upon and about his person.  It is claimed the evidence did not show that the weapons were concealed, or that they were on or about his person, or that he had possession or control of them.  However,  [***2]  we think there was ample evidence from which the trial court could find otherwise, as it did.

 [*626]  The State's evidence was as follows.  At about 3:00 A.M. two cruising police officers saw an old Buick come out of an alley and proceed down the street without headlights.  A man (later identified as the appellant) sitting to the right of the driver was observed attempting to conceal something under the dashboard.  The officers stopped the Buick and the driver came back to the police car, where one officer checked his identification cards.  The other officer went to the Buick and asked the appellant for some identification. The appellant requested some light.  When the officer trained his flashlight on the appellant he observed three live pistol cartridges on the floor of the car at his feet. The officer returned to the police car and told his confrere what he had seen.  The second officer alighted from the cruiser on the right side and then saw the appellant lean out of the right side of the Buick and push two revolvers under the automobile.  The officers found two loaded revolvers under the Buick and charged the two men with carrying concealed weapons.
The trial court was [***3]  warranted in drawing the inference from all the attendant circumstances that the revolvers were concealed in the automobile, under the control of the appellant, at the time when the officer observed the live cartridges at the feet of the appellant.  Cf. Wood v. State, 192 Md. 643. In any event, all elements of the offense were verified when the other officer saw the appellant conceal the weapons under the automobile.  Anno. 43 A.L.R. 2d 492; cf. Iozzi v. State, 224 Md. 42.
Judgment affirmed.  

78 of 138 DOCUMENTS 

POINTER v. STATE 

No. 289, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 626; 209 A.2d 600; 1965 Md. LEXIS 694 

April 29, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Breaking And Stealing Goods Of Value Of Five Dollars And Upwards -- Sufficient Evidence To Sustain Lower Court Verdict Of Guilty -- Accused Gave Three Different Stories In Explanation Of His Possession Of Goods -- Court, As Trier Of Fact, Rejected Credibility Of Stories, And Found Burden Of Explaining Possession Of Goods Was Not Met.  

SYLLABUS:

John Edward Pointer was convicted of breaking into a shop and stealing goods to the value of $ 5 and upwards, and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted on brief by Edward J. Birrane, Jr. for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, Carville M. Downes, Assistant Attorney General, Charles E. Moylan, Jr. and Robert F. Freeze, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney, Marbury and Sybert, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*627]   [**601]  The appellant, who tried to pawn a new suit of clothes that did not fit him, which was identified as one of those stolen the [***2]  night before from a tailor shop, and, when asked, gave two explanations before his arrest and a third after he was taken to the police station as to his possession of the suit, contends on appeal that the evidence was legally insufficient to convict him of breaking into a shop and stealing goods to the value of $ 5 and upwards in violation of Code (1964 Cum. Supp.), Art. 27, §  33.
First he said that the suit belonged to him; then he stated that it belonged to his uncle; finally, he explained that it belonged to an acquaintance who was too young to pawn it himself.  The lower court, as the trier of fact, rejected the credibility of any of the stories told by the appellant and, finding that he had 

 [*628]  not met the burden cast upon him of giving a reasonable explanation of his possession of the suit, Oden v. State, 223 Md. 244, entered a verdict of guilty as charged.  Since it is apparent that the lower court was not wrong, the judgment will not be set aside.  Graczyk v. State, 233 Md. 245; Calloway v. State, 238 Md. 612.
Judgment affirmed.  

79 of 138 DOCUMENTS 

TAYLOR v. STATE 

No. 268, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 424; 209 A.2d 595; 1965 Md. LEXIS 671 

April 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments and sentences affirmed.  

HEADNOTES:

Criminal Law -- Confession -- No Error In Admitting Where Evidence Disclosed Credible And Uncontradicted Testimony In Support Of Finding That Appellant Was Informed Of His Right To Counsel And To Remain Silent And That Statements Could Be Used Against Him, Before He Made Statements.
Criminal Law -- Confessions -- Admissible If Voluntarily Given -- Neither Legality Or Illegality Of Arrest, Although Considered In Totality Of Circumstances, Is Critical In Determination Of Voluntariness.
Arrest -- Sufficient Probable Cause For -- Based On Reasonably Trustworthy Information -- Officers Need Not Stop Investigation To Inquire Into Witness' Trustworthiness.  When the police, working in co-ordination in an attempt to solve a reported crime, have acquired sufficient information (by facts within their own knowledge and of which they have reasonably trustworthy information) to establish in the mind of a prudent man a belief that the alleged crime has probably been committed and that the arrestee was probably involved therein, and this information is transmitted to the arresting [***2]  officer, he may lawfully arrest. In the instant case the Court held that appellant's arrest was legal, rejecting his contention that information received was not reasonably trustworthy, hence the arresting officers failed to have probable cause. Where officers were investigating a crime which occurred minutes before, and they had been told that shots had been fired at fleeing robbers, and they traced bloodstains in the snow to a house wherein were a wounded man, the appellant and another (all "colored males") and they are told by an eye-witness that two men ("colored males") were on the outside and stopped a woman from going into the bar, and it was known that four persons were involved in the robbery, it would be entirely impractical and unrealistic to have required the officers to stop their investigation of crime and inquire into the witness' trustworthiness.
Criminal Law -- Confessions -- Court Held That Failure To Take Appellant Before Judge Of Municipal Court Of Baltimore City Prior To His Confessions Did Not Render Them Inadmissible -- Statutory Sections Giving Jurisdiction To Judges Of Municipal Court Set No Time Limit As To When Arrestee Must Be Taken Before Judge  [***3]   And Do Not Mention That Failure To Take Person Before Judge In Specified Time Renders Voluntary Confession Inadmissible.
Criminal Law -- Confessions -- Where Voluntary Not Inadmissible Because Made Two And One-Half Days After Arrest -- Accused Had Previous Experience With The Law, Was Fed And Allowed To Rest, And No Threats Of Violence, Promises Of Inducement, Or Psychological Coercion Were Claimed.
Criminal Law -- Confessions -- Detention Between Statements And Appearance Before Magistrate Does Not Affect Admissibility.
Criminal Law -- Assault With Intent To Murder -- Sufficient Evidence To Support Conviction -- Crime Requires Proof Of Assault Coupled With Intent To Murder -- Specific Intent To Take Life Not Essential -- In Instant Case, Inferred By Use Of Deadly Weapon Directed At Vital Part Of Human Body.  

SYLLABUS:

Floyd Taylor was convicted by the trial court, sitting without a jury, of two cases of robbery with a deadly weapon, one case of assault with intent to murder, one case of carrying a concealed weapon, and one case of receiving stolen goods, and from the judgments entered thereon, he appeals.  

COUNSEL:
Robert V. Lazzaro for appellant.
John C. Cooper, III,  [***4]   Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Stanley S. Cohen, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City on the brief, for appellee.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*426]   [**596]  Appellant, whose "nom de plume" is "killer" and who went to the sixth grade "in the street" and to the ninth "in the penitentiary," was convicted in the Criminal Court of Baltimore by Judge Grady, sitting without a jury, of two cases of robbery with a deadly weapon, one case of assault with intent to murder, one case of carrying a concealed weapon, and one case of receiving stolen goods.
He contends that the court erred: (1) in admitting several confessions made by him because (according to his brief) (a) he was not advised of his right to have the assistance of counsel, of his right to remain silent, or that any statement he made could be used against him, (b) he was interrogated over a period of 2 1/2 days, during which time he made four separate statements, and (c) the [***5]  statements were taken during a period of illegal detention, because he had been illegally arrested and he was not taken before a magistrate in a reasonable time after his arrest; and (2) the evidence was insufficient to support his conviction of assault with intent to murder.

 [*427]  It will not be necessary to set forth the facts at great length, for the appellant recognizes that, even with his assumption of facts in his favor (which, in reality, were uncontradicted statements that he was advised of his right to have counsel and also advised that he had a right to remain silent) in order for him to prevail in this appeal it would require our overruling several previous decisions of this Court.
The State produced evidence of three armed robberies. The first, on January 6, 1964, occurred at Schwartz's Delicatessen.  The operator of the establishment identified appellant as one of the participants.  The second, on January 15, 1964, took place at the Maryland Restaurant.  The third, on January 16, 1964, was effectuated at the Sportman's Bar.  The victim testified that "two colored persons" entered the bar and robbed him at pistol point.  A gun fight ensued in which the victim was [***6]  shot in the  [**597]  chest and he, in turn, fired four shots at the robbers while they were running away.  He believed his shots had struck, at least, one of them.  He immediately called the police.
Sgt. Hartnett responded to the call.  He testified that he and other officers found bloodstains in the snow, and followed the trail of blood to 1632 Miller St. A knock on the door was answered by the appellant, and inside the small house were two other Negroes, a Melvin Cornelius and a William Belton.  Belton was in bed suffering from a gunshot wound in his shoulder.  He was arrested and taken to the hospital.  Not knowing how many persons were involved in the robbery, Sgt. Hartnett made no other arrests at that time, but returned to the scene of the hold-up.  There, he was informed by Lt. Kummer, who was leading the investigating force, that four persons had participated in the robbery -- two inside and two outside -- and by a woman bystander he was informed that they were "colored males."
Sgt. Hirsch, who accompanied Hartnett when appellant was placed under arrest, said that he had information that four persons were involved in the robbery. He questioned "various people throughout [***7]  the neighborhood." From one particular female, he learned that two men were "standing immediately outside the door," at about the time of the robbery. Upon approaching the door of the bar, one woman was told by one of the two males outside, "just go on about [your] business, not [sic] worry about what [is] happening inside the tavern."

 [*428]  After receiving this information, Sgts. Hartnett and Hirsch returned to 1632 Miller St., where, after waiting a short time for him to return, they arrested appellant at 12:20 a.m. on January 17th.
Appellant was questioned "only for a few minutes" after he was brought in.  Thereafter, according to Lt. Kummer, who conducted the interrogations of appellant together with Sgts. Hartnett and Hirsch, he was questioned on January 17th from 7:00 a.m. until 10:20 a.m., on January 18th from 3:55 a.m. until 4:15 a.m., and on January 19th from 9:55 a.m. until 11:10 a.m., when appellant, after he had been confronted by Belton and Cornelius, began the first of four confessions which were taken and transcribed through 4:25 p.m., of that day. n1 During all of the period of his detention, appellant was fed the regular prison meals at the standard [***8]  times, and he was given extended periods when he could rest and sleep.

n1 The other officers' testimony as to the exact times that appellant was questioned differed slightly, but not enough to be of substantial significance.

Lt. Kummer testified that he informed appellant of his right to have an attorney and his right to remain silent, that appellant made no request for an attorney, and the statements were freely and voluntarily made.  There was no contradiction of these statements.  Appellant's statements were taken in question and answer form, and the first three show that before he made any criminating statements he was stopped and specifically told that "before you say anything" the interrogator wanted him to know that anything he said "must be free and voluntary on your part," also the interrogator could "not promise [him] anything," the appellant was not being threatened in any manner, and anything he said might be used for or against him in court.  After being so informed and asked if he understood what [***9]  the officer was saying, he was asked, "Do you still want to tell us about the holdup?" He replied, "Yes, sir." There is no contention that these statements were not taken in the precise manner that they purport to have been taken, and it would scarcely seem necessary, after three such admonitions in the course of one afternoon, to require its repetition to the traverser, who was no 

 [*429]  novice in the commission of crime, having had two previous convictions of robbery and one of the larceny of an automobile, before taking his fourth statement.
 [**598]  I
(a)
This contention requires no elaborate discussion.  It is based entirely upon the false premise that the evidence established that appellant had not been informed of his right to the assistance of counsel, of his right to remain silent, or that his statements could be used against him.  It is not necessary here to state our views as to effect (if any) upon the result of our decision that a failure to inform appellant of any one or more of the matters mentioned might have had.  An examination of the evidence, as we set it forth above, discloses there was credible testimony, not denied or contradicted by anyone, sufficient [***10]  to support a finding by the trial court that the appellant had been informed on all three of the matters.  We find no error here.  (As a matter of fact, this point was not seriously pressed below.  The stress was placed upon an alleged illegal arrest of the appellant, which we consider below.)
(b) and (c)
Appellant here contends that his arrest was illegal; hence his statements were inadmissible. We have repeatedly held that the admissibility, vel non, of a confession is to be determined by whether, under the totality of the attendant circumstances, the confession was freely and voluntarily given.  If freely and voluntarily given, it is admissible; if not, it is inadmissible. And neither the legality nor illegality of the arrest, although properly considered in the totality of circumstances, is critical in a determination of the voluntariness of a confession. Prescoe v. State, 231 Md. 486; Mefford and Blackburn v. State, 235 Md. 497, cert. den. 380 U.S. 937. The general rule regarding the admissibility of confesssions is correctly stated in Abbott v. State, 231 Md. 462, but we do not deem it necessary to repeat it here.
However, if the alleged illegality of [***11]  the arrest were pertinent here, we think the undisputed facts disclose that the arrest was 

 [*430]  lawful.  We have, on many occasions, stated the rule as to when an officer may legally arrest a person, without a warrant, for a felony.  See, for examples, Mulcahy v. State, 221 Md. 413; Edwardsen v. State, 231 Md. 332; Drouin v. State, 222 Md. 271. Our decisions thereon, in the main, are based upon what was said in Brinegar v. United States, 338 U.S. 160. When the police, working in co-ordination in an attempt to solve a reported crime, have acquired sufficient information (by facts within their own knowledge and of which they have reasonably trustworthy information) to establish in the mind of a prudent man a belief that the alleged crime has probably been committed and that the arrestee was probably involved therein, and this information is transmitted to the arresting officer, he may lawfully arrest. Farrow v. State, 233 Md. 526; Beck v. Ohio, 379 U.S. 89.
Appellant seems to recognize this rule, but claims that the information given to Sgt. Hirsch by the unidentified female that two "colored males" were on the outside at about the time of the robbery [***12]  and one steered a prospective patron of the bar away, was not "reasonably trustworthy information"; hence the officers failed to have probable cause to make the arrest. With this contention, we are unable to agree.  As was stated in Brinegar, supra, by the Supreme Court, "The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating *** often opposing interests." Where officers are investigating a crime which occurred just minutes before, and the officers have been told that shots had been fired at fleeing robbers, and they have traced blood stains in the snow to a house wherein are a wounded man, the appellant and another, (all "colored  [**599]  males") and they are told by an eye-witness that two men ("colored males") were on the outside and stopped a woman from going into the bar, it would be entirely impractical and unrealistic to require the officer to stop his investigation of the crime and inquire into the witness' trustworthiness. See Drouin v. State, n2 supra, where neighbors gave the officers information which helped to establish 

 [*431]  probable cause, and Shorey v. State, 227 [***13]  Md. 385, where the same principle was applied.  It could be argued with equal force as that claimed above that the police should not be allowed to accept, in evaluating probable cause, information (often given hurriedly and by telephone) that a felony had been committed, without first checking the trustworthiness of the informant.  It will be noted that this class of evidence is not admitted as substantive evidence to assist the State in establishing guilt, but simply for the purpose of determining whether the officers had probable cause so as to make the arrest legal.

n2 We discussed in this case in some detail the circumstances under which an informer had to be produced by the State.

In addition, if the above contention were upheld, it would disregard the information received by Lt. Kummer and conveyed to Sgt. Hartnett, one of the arresting officers, that four persons were involved in perpetrating the robbery.
We hold that appellant's arrest, made under the circumstances described above, was legal.
Appellant [***14]  also contends that his statements were rendered inadmissible by Code (1964 Supp.), Article 26, Section 115.  In creating the Municipal Court of Baltimore City in 1961, the Legislature included said Section 115.  It provides, in part, that if anyone is arrested in Baltimore City (for other than motor vehicle charges), it shall be the duty of the officer making the arrest to take such person before a judge of the criminal division of the Municipal Court, and if any offense charged against the person is beyond the jurisdiction of the said court, the judge of the criminal division shall sit as a committing magistrate "with the same powers and duties as were vested in and imposed upon the justices of the peace assigned to the station houses of Baltimore City on the day preceding the effective date of this subtitle * * *." Appellant argues that the Section required that he be taken before one of the judges of the Municipal Court immediately after his arrest. We do not so read the statute.  It is clear to us that the Section was transitional in nature: it placed certain duties and functions that had formerly been exercised by justices of the peace within the jurisdiction of the judges of [***15]  the new Municipal Court.  The subtitle gave these new judges authority and jurisdiction to try certain criminal cases, and Section 115 provided that in cases beyond that jurisdiction, the judges should sit as committing magistrates.  

 [*432]  No time limit is set in the Section as to when it is compulsory that an arrested person be taken before one of the judges; and no mention is made to the effect that a failure to take such a person before one of the judges by a specified time shall render a voluntary confession inadmissible. Had the Legislature so intended, it would have been a very simple task to manifest such intention.  We hold that the failure to take the appellant before a judge of the Municipal Court prior to his confessions did not render them inadmissible.
Nor do we think that the period of time from his arrest to when appellant began his four statements, something less than 2 1/2 days during which he was interrogated -- at well separated intervals -- for a total of about 4 hours, made them inadmissible. Repeating what we said above, the critical test of their admissibility depended upon whether the totality of the circumstances surrounding their making disclosed [***16]  that the statements were freely and voluntarily  [**600]  made.  Involved here is an accused, who had had previous experiences with the law; he was fed regularly and allowed substantial rest periods; and no threats of physical violence, promises of inducement, or psychological coercion are claimed.  We find no evidence that his will was overborne.  We, therefore, hold that appellant's statements were not rendered inadmissible on this last mentioned ground.  Prescoe v. State, supra; Green v. State, 236 Md. 334; Gallegos v. Nebraska, 342 U.S. 55 (15 days involved); Anno., 19 ALR 2d 1331 §  5.
Appellant makes an additional contention in regard to a short detention between his statements and his appearance before a magistrate.  It has little significance here.  "The critical period is that between arrest and confession. 'Detention after a confession plainly does not affect its admissibility.'" Jackson v. United States, 313 F. 2d 572 (District of Columbia).
(2)
Appellant finally challenges the sufficiency of the evidence to support his conviction of assault with intent to murder. The offense is a creature of statute, Code (1957), Art. 27, §  12, and requires proof of [***17]  an assault, coupled with an intent to murder, either in the first or second degree; but specific intent to 

 [*433]  take life is not an essential ingredient thereof.  The question of one's state of mind, or his intention, at a particular time is one of fact, and is subjective in nature.  Therefore it must be determined by a consideration of his acts, conduct and words.  Midgett v. State, 216 Md. 26; Bird v. State, 231 Md. 432. And the determination of an accused's intention is, in the first instance, for the trial judge, when sitting without a jury, and this determination will not be disturbed by this Court unless clearly erroneous.  Maryland Rule 886 a.  An intent to murder may, under proper circumstances, be inferred by the use of a deadly weapon directed at a vital part of the human body, as was the case here.  Wimbush v. State, 224 Md. 488. We hold that the evidence was sufficient to support appellant's conviction.
Judgments and sentences affirmed.  

80 of 138 DOCUMENTS 

HOWARD v. STATE 

No. 283, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 623; 209 A.2d 604; 1965 Md. LEXIS 691 

April 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Evidence -- Was Sufficient To Convict Of Burglary -- Credibility Of Witnesses Was For Trier Of Fact.  

SYLLABUS:

Leonard Patrick Howard was convicted of burglary and from the judgment entered thereon, he appeals.  

COUNSEL:
Irving B. Klitzner for appellant.
Court declined to hear argument for the appellee.  Thomas B. Finan, Attorney General, R. Randolph Victor, Assistant Attorney General, and Charles E. Moylan, Jr. and Donald Needle, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
PER CURIAM 

OPINION:

 [*623]   [**605]  The appellant, convicted of burglary and sentenced to a term of five years, challenges on appeal the sufficiency of the evidence.  He contends that the testimony most damaging to him was legally insufficient because it came from an alleged participant in the burglary and from his relatives.
These witnesses clearly were competent to testify and, this being so, the credibility and weight of their testimony was for the trier of fact.  [***2]  The record does not show him to have been clearly wrong in accepting their versions of what occurred.
Furthermore, there was other evidence sufficient not only to 

 [*624]  corroborate that of the accomplice but of itself to sustain the conviction.  When he was arrested, appellant was wearing a pair of shoes which had been recently stolen and he could give no reasonable explanation of how they came into his possession.  The trial judge could properly draw from the circumstances the inference of fact that he was the burglar.  See Stapf v. State, 230 Md. 106.
Judgment affirmed.  

81 of 138 DOCUMENTS 

SMOLIN v. FIRST FIDELITY SAVINGS AND LOAN ASSOCIATION, INC. 

No. 206, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 386; 209 A.2d 546; 1965 Md. LEXIS 666 

April 27, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order affirmed, the appellant to pay the costs.  

HEADNOTES:

Veterans -- Protection Given To Disabled Veterans Receiving Payments Under Federal Law By Removing Income And Principal From Reach Of Creditors -- Protection Exists Even After Receipt By Beneficiary, But Does Not Extend To Claims Which Are Not Of His Creditors.  The protection given to a disabled veteran receiving payments under federal legislation, Act of Congress of August 12, 1935, c. 510, sec. 3, 38 U. S. C. §  3101 (a), is analagous to the protection given by private persons to objects of their bounty by means of a "spendthrift trust".  The results to be obtained are similar, i. e., to protect the beneficiary from his own improvidence by removing the income and principal from the reach of his creditors.  The federal legislation broadens the protection by including an exemption from execution by the creditors even after receipt by the beneficiary, but he is not protected against claims which are not of his creditors.
Veterans -- Veteran Who Allegedly Had Deposited Disability Payments With Insolvent Association Held Not Entitled To Priority  [***2]   Over Other Shareholders, Or Entitled To Recover Payments From Conservator Or Receiver, Since Holding Of Assets By Conservator Or Receiver Was Not By Creditor Of Veteran As Contemplated By Federal Statute.  Where the appellant, a veteran receiving Veterans Disability Retirement payments from the federal government, sued to require the conservator (now receiver) of an insolvent savings and loan association to pay him the sum of money which he had deposited in an account with the association, relying upon Act of Congress of August 12, 1935, c. 510, sec. 3, 38 U. S. C. §  3101 (a), this Court held that even assuming, without deciding, that the disability payments for which the priority was claimed had been traced into the savings and loan account, the appellant's claim was not entitled to priority over the claims of other free shareholders of the association.  The holding of the assets of an insolvent savings and loan association by a conservator or receiver of the association is not an attachment, levy or seizure issued by a creditor of the veteran as contemplated by the federal statute.  The conservator, appointed by the equity court, was no creditor of the veteran, but held [***3]  the assets temporarily for that court to determine the proper course of action pursuant to statute.  Nor was the receiver a creditor of the veteran, his custody being that of the court.  He was an indifferent person between the parties and appointed upon behalf of all of the parties with rights in the suit, including the veteran. 

SYLLABUS:

Petition by Edwin M. Smolin to require the conservator (now receiver) of the First Fidelity Savings and Loan Association to pay him a certain sum, allegedly representing Veterans Disability Retirement payments deposited by him in an account of the Association.  From an order overruling exceptions to a report of a special master recommending that the relief prayed for be denied, the petitioner appeals.  

COUNSEL:
Rolf A. Quisgard, Jr., with whom was Marvin Steinberg on the brief, for the appellant.
Eugene A. Alexander, III, with whom was H. Paul Rome on the brief, for the appellee.  

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

OPINIONBY:
BARNES 

OPINION:

 [*387]   [**546]  This appeal resulted from the denial by the Circuit Court of Baltimore City (Oppenheimer, J.) of the petition [***4]  of Edwin M. Smolin, the appellant (Smolin), filed April 24, 1963, to require the conservator (now receiver) of the First Fidelity 

 [*388]  Savings & Loan Association (First Fidelity) to pay Smolin the sum of $ 4969.35, allegedly Veterans Disability Retirement payments deposited by Smolin in Account No. 60483 of the Association.  Judge Oppenheimer had  [**547]  overruled the exception of Smolin to the Report of a Special Master in which it was recommended that the relief prayed for in the Smolin petition be denied.
The facts are not in dispute, and are as follows: On September 23, 1947, Smolin, a Second Lieutenant in the United States Army in World War II, was granted Veteran Retirement pay in the amount of $ 184.05 monthly, and has been paid this monthly retirement pay since that time.  At the time of allowance of the retirement pay by the Army Retirement Board, Smolin lived in Iowa City, Iowa.  Thereafter he moved to Connecticut.  He now resides at Springdale, Connecticut.  He opened a savings account (No. 128082) in the name of himself "or Shirlee J. Smolin, payable to either or survivor" in the Stamford Savings Bank, Stamford, Connecticut.  A photostatic copy of this account,  [***5]  which is in the record, shows a balance of $ 9,973.12 as of January 2, 1959.  From January 5, 1959 to September 6, 1960, there were 25 separate deposits in the account ranging from $ 54.07 to $ 684.05.  There was one deposit, on January 4, 1960, in the amount of $ 184.05.  During the period mentioned there were four withdrawals: $ 2400.00 on January 22, 1959, $ 250.00 on May 14, 1959, $ 970.00 on May 19, 1959 and $ 1000.00 on April 4, 1960.  The balance on September 16, 1960 was $ 12,704.06.  Interest of $ 205.16 was added on October 1, 1960 which gave a balance as of that date of $ 12,909.22.  During this period there were credits for interest in addition to the $ 205.16 mentioned.  These were $ 68.39 on April 1, 1959, $ 14.15 on October 1, 1959 and $ 188.70 on April 1, 1960.  These interest payments indicate an interest rate on the basis of approximately 3% per annum.  On October 3, 1960 there was a withdrawal of $ 5000.00 reducing the balance to $ 7,909.22.  Smolin claims that during the twenty month period from January 2, 1960 through September 6, 1960 he accumulated $ 3,681.00 of retirement pay ($ 184.05 X 20) which was a part of the $ 5000.00 withdrawn from the Stamford account [***6]  on October 3, 1960 to establish a new account (No. 60483) in First Fidelity 

 [*389]  in Baltimore.  The signature card for Account No. 60483, signed by Smolin and Shirlee J. Smolin, gives their address as "82 Deep Spring Lane, Springdale, Conn." and recites: "Savings Share Account: Two Party Joint Trust, subject to order of either (with right of survivorship)." It then has the usual Maryland trust form "Edwin M. Smolin in trust for himself and Shirlee J. Smolin" as joint owners, subject to the order of either, the balance at death of either to belong to the survivor." Then is recited "The undersigned hereby apply for a savings share account" in First Fidelity *** in accordance with provisions and in the form provided for on the face and reverse sides hereof, subject to its Charter and By-laws, and amendments thereto, to the rules, regulations and laws governing said Association and subject also to the following: Each of the undersigned hereby authorizes the other to endorse any check or instrument payable to the order of the other or both and to present same for credit to this account."
On the face and reverse sides appeared the following:
"This certifies that the above named [***7]  is/are members of First Fidelity Savings & Loan Assn., Inc.  This certificate is issued and by acceptance hereof is held subject to all the provisions of the Charter and By-laws of the Association and the laws of the State of Maryland and is transferable on the books of the undersigned (First Fidelity) by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed.  The undersigned (First Fidelity) may treat the holder of record in the manner in which membership was made as the owner for all purposes, without being affected by any notices to the contrary, until this certificate, representing a preferred stock interest in the Association, is transferred on the books of the undersigned (First Fidelity).  Certificates will not be transferred unless and until the transferee has made proper application for membership and has been accepted  [**548]  as a member of the undersigned" (First Fidelity).
Immediately under this statement appears: "Savings Department.  Savings invested here are intelligently and economically managed and are profitably employed to earn generous dividends [***8]  for you.  Regular savings promote the thrift habit, enabling you to reach financial independence or any goal you set 

 [*390]  * * *." Under the heading "Dividends" appears: "Dividends are credited semi-annually, June 30 and December 31.  Deposits made on or before the 20th of each month receive credit for the entire month when left to the end of the dividend period." There also appears a form of Transfer of Share Account and Membership" which recites that "For value received the undersigned hereby sells, assigns and transfers to ... the share account on the books of said association." Then there are blanks for the date, signature and witnesses followed by "The undersigned is the transferee of the share account represented by the within certificate and has executed application for membership and signature card." Then follows a blank for the signature of the transferee with a notation "Transfer entered of record ... 19 ..." (All emphasis supplied.)
A transcript of Account 60483 in First Fidelity is in the record.  Under "Name" appears "Smolin, Edwin M. or Shirlee J." The original deposit is for $ 5000.00, dated as of July 22, 1960.  There [***9]  are two dividend credits of $ 125.00 and $ 128.12 respectively on October 2, 1961.  There is also a dividend credit of $ 137.27 as of January 5, 1962.  In addition to the original deposit of $ 5000.00 there were 12 deposits between October 2, 1961 and May 14, 1962 ranging in amount from $ 65.30 to $ 351.95.  On November 3, 1961, there was a deposit of $ 184.05.  The balance as of May 14, 1962 was $ 8,049.73.  There was a deposit of $ 329.28 as of June 12, 1962, but as the conservator took over the assets of First Fidelity on June 2, 1962, this deposit was apparently returned, leaving the final balance $ 8,049.73.  Other than this return of the deposit of June 12, 1962, there were no withdrawals of any kind from the First Fidelity account.  The dividends credited indicate a dividend rate of 5% on an annual basis.
Smolin claims that beginning with the $ 184.05 deposit on November 3, 1961, and for the six months thereafter to and including May 3, 1962 (a total of seven months), the subsequent deposits all being in excess of $ 184.05 represent deposits by him by mail of his monthly disability payments of $ 184.05, a total of $ 1288.35, which, with the amount of $ 3687.00 claimed [***10]  as included in the original deposit of $ 5000.00 from the Stamford account, represents a total of $ 4969.35 claimed as deposited 

 [*391]  veteran disability payments.  No duplicate deposit slips from either the Stamford Savings Bank or from First Fidelity are in the record.  We will assume for the purposes of this case, but without deciding, that Smolin has traced the monthly disability payments of $ 184.05 for which he claims priority, into Account No. 60483.
Smolin claims the right to priority of payment by the conservator (now receiver) of First Fidelity of $ 4969.35 of the balance of Account No. 60483 of $ 8,049.73 by virtue of the Act of Congress of August 12, 1935, c. 510, section 3, 49 Stat. 609, codified as 38 U.S.C. §  3101(a), which provides in pertinent part:
"Payments of benefits due or to become due under any law administered by the Veterans' Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process [***11]  whatever, either before or after receipt by the beneficiary. The preceding sentence shall not apply to claims of the United States arising under such laws nor  [**549]  shall the exemption therein contained as to taxation extend to any property purchased in part or wholly out of such payments."
The Act of August 12, 1935, c. 510, repealed two earlier Acts on the same subject.  In effect this consolidated the two earlier Acts and added the phrase "either before or after receipt by the beneficiary."
The earlier Acts on the same subject were:
1) Act of March 3, 1873, c. 234, s. 33, 17 Stat. 575 (Revised Statutes 4747, par. 4) which provided:
"No sum of money due, or to become due, to any pensioner, shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, whether the same remains with the Pension Office, or any officer or agent thereof, or is in course 

 [*392]  of transmission to the purchaser entitled thereto, but shall inure wholly to the benefit of such pensioner."
2) World War Veterans Act of June 7, 1924, c. 320, s. 22; 43 Stat. 613, which provided:
"That the compensation, insurance, and maintenance and support allowance [***12]  payable under Titles II, III, and IV, respectively, shall not be assignable; shall not be subject to the claims of creditors of any person to whom an award is made under Titles II, III, or IV; and shall be exempt from all taxation; * * *"
It will be noted that the phrase "shall not be liable to attachment, levy, or seizure under any legal or equitable process whatever" is taken verbatim from the Act of March 3, 1873, c. 234, s. 33.  Both prior and subsequent to the passage of the Act of August 12, 1935, c. 510, the Courts construed this language to mean attachment, levy or seizure by process issued by a creditor of the veteran and not to mean an exemption from liability for obligations which were not debts of the veteran, such as the obligation to pay alimony, n1 support of children, n2 claims by the State for maintaining the incompetent veteran, n3 or compensation to a committee for the incompetent veteran. n4

n1 In re Flanagan, 31 F. Supp. 402 (1940, D. Ct. D. C.).  Hannah v. Hannah, 191 Ga. 134, 11 S. E. 2d 779 (1940, S. Ct. of Ga.).  Stirgus v. Stirgus, 172 Miss. 337, 160 So. 285 (1953, S. Ct. of Miss.).  Stone v. Stone, 188 Ark. 622, 67 S. W. 2d 189 (1934, S. Ct. of Ark.). [***13]  
n2 Application of McCarthy, 178 N. Y. S. 2d 403, 6 A. D. 2d 1029 (1958, S. Ct. of N. Y. App. Div.); In re Gardner, 220 Wis. 493, 264 N. W. 643 (1936, S. Ct. of Wis.); Pishue v. Pishue, 32 Wash. 2d 750, 203 P. 2d 1070 (1949, S. Ct. of Wash.); Gaskins v. Security First Nat. Bank of Los Angeles, 30 Cal. App. 2d 409, 86 P. 2d 681 (1939, D. Ct. of Ap. Cal. 2nd Dist.); Dillard v. Dillard, 341 S. W. 2d 668 (1961 Tex. Civ. App.); Auditor General v. Olezniczak, 302 Mich. 336, 4 N. W. 2d 679 (1942, S. Ct. of Mich.).
n3 State v. Bean, 159 Me. 455, 195 A. 2d 68 (1963, S. Ct. of Me.); In re Simpson, 61 N. Y. S. 2d 529, 270 App. Div. 902 (1961, S. Ct. of N. Y. App. Div.), appeal dismissed 296 N. Y. 831, 72 N. E. 2d 20; Savoid v. District of Columbia, 288 F. 2d 851 (1961, Ct. of Ap. D. C.); In re Guardianship of Bemowski, 3 Wis. 2d 133, 88 N. W. 2d 22 (1958, S. Ct. of Wis.); In re Todd's Estate, 243 Iowa 930, 54 N. W. 2d 521 (1952, S. Ct. of Iowa); Department of Public Welfare v. Allen, 255 Ky. 301, 74 S. W. 2d 329 (1934, Ct. of Ap. of Ky.).
n4 Hines v. McKenzie, 216 Iowa 1388, 250 N. W. 687 (1933, S. Ct. of Iowa); In re Giambastiani's Estate, 1 Cal. App. 2d 639, 37 P. 2d 142 (1934, D. Ct. of Ap. of Cal., 2nd Dist.).

 [***14]  

 [*393]  The Act of August 12, 1935, c. 510, s. 3 was included without change in the consolidation of all laws administered by the Veterans' Administration in the Act of September 2, 1958, Pub. L. 85-857, 72 Stat. 1229, so that it may be assumed that the prior judicial construction of the language was known to, and approved by Congress in this re-enactment.  Sherman v. Hamilton, 295 F. 2d 516 (1961, Cal.), cert. den. 369 U.S. 820, 82 S. Ct. 827, 7 L. Ed. 2d 785 (1962); Mahoney v. Board of Supervisors of Elections, 205 Md. 380, 387, 109 A. 2d 110 (1954).
 [**550]  We indicated such a construction of the statute in 1936 in Yake v. Yake, 170 Md. 75, 79, 183 A. 555, where Judge Shehan stated for the Court: "The statute not only prohibits assignments but protects the compensation, allowance or relief from claims of creditors and from taxes." (Emphasis supplied).
The Supreme Court of Indiana in 1957 held that this was the proper construction in Voelkel v. Tohulka, 236 Ind. 588, 141 N. E. 2d 344; the Supreme Court of the United States denied certiorari on December 9, 1957, 355 U.S. 891, 78 S. Ct. 263, 2 L. Ed. 2d 189.
This construction of the type of levy,  [***15]  attachment or seizure intended is also indicated and reinforced by the provisions of Subparagraph (c) of 38 U.S.C. §  3101 which provides:
"(c) Notwithstanding subsection (a), payments of benefits under laws administered by the Veterans' Administration shall not be exempt from levy under subchapter D of chapter 64 of the Internal Revenue Code of 1954 (relating to seizure of property for collection of taxes)."
It will be noted also that there is nothing in the statute which purports to give specifically a priority to the funds in an insolvency 

 [*394]  proceeding.  In Shippee v. Commercial Trust Co., 115 Conn. 326, 161 A. 775 (1932, S. Ct. of Er. of Conn.), it was held that there was no such priority under 31 U.S.C. §  191, giving claims of the United States a priority status in insolvency proceedings. n5

n5 It has been held that there was no priority of a veteran's savings deposit in an insolvent bank of the proceeds of a loan on an adjusted service certificate under 31 U.S.C. §  191 on the theory that the funds were those of the United States.  People, ex rel, Nelson v. Stony Island State Savings Bank, 358 Ill. 118, 192 N. E. 682 (1934, S. Ct. of Ill.).

 [***16]  
It appears that the protection given to the veteran by the federal legislation is analogous to the protection given by private persons to the objects of their bounty by means of the "spendthrift trust," which we first sustained in 1888 in Smith v. Towers, 69 Md. 77, 14 A. 497 (1888) and which we have uniformly enforced since that case.  See Manders v. Mercantile Trust Co., 147 Md. 448, 453, 128 A. 145 (1925); Hitchens v. Safe Deposit & Trust Co., 193 Md. 53, 66 A. 2d 93 (1949). The results to be obtained are similar, i.e., to protect the beneficiary from his own improvidence by removing the income and principal from the reach of his creditors.  The federal legislation broadens the protection by including an exemption from execution by creditors even after receipt by the beneficiary, as in the federal exemption, a spendthrift beneficiary is not protected against claims which are not of his creditors, such as claims for alimony and support of his children.  Safe Deposit & Trust Co. v. Robertson, 192 Md. 653, 65 A. 2d 292 (1949). The spendthrift beneficiary is not protected against the claims of the United States for income taxes payable on the protected income.   [***17]  Mercantile Trust Co. v. Hofferbert, 58 F. Supp. 701 (1944); U.S. v. Mercantile Trust Co., 62 F. Supp. 837 (1945). It is clear, however, that when the money is received by the spendthrift beneficiary or when it is invested by him, it is available for the claims of creditors if they are able to reach it by execution, or otherwise.  Fetting v. Flanigan, 185 Md. 499, 45 A. 2d 355 (1946). He, of course, has no claim of priority in any insolvency proceeding, as his creditors are not involved, and the protection does not continue to the fund created by the spendthrift beneficiary after he receives the money.

 [*395]  We are of the opinion that the holding of the assets of an insolvent savings and loan association by a conservator or receiver of an insolvent savings and loan association is not an attachment, levy or seizure by a creditor of the veteran as contemplated  [**551]  by 38 U.S.C. §  3101(a).  We have seen that the provision "shall not be liable to attachment, levy, or seizure under any legal or equitable process whatever," carried over from the Act of March 3, 1873, means, by judicial construction and by the acquiescence of Congress, attachment, levy or seizure [***18]  issued by a creditor of the veteran. The conservator, appointed by the equity court, was no creditor of the veteran. He held the assets temporarily for the equity court to determine the proper course of action pursuant to Code (1964 Cum. Supp.) Art. 23, Sec. 161K. (Act of 1961, Ch. 205).  If within 6 months the irregularities complained of in the petition for the appointment of a conservator are not corrected, a receiver then could be appointed under Code (1964 Cum. Supp.) Art. 23, Sec. 161L.  The receiver is also no creditor of the veteran. His custody is the custody of the court.  He is an indifferent person between the parties and is appointed on behalf of all the parties who have rights in the suit, including the veteran. See Atlanta Flooring & Insulation Co., Inc. v. Russell, 146 F. 2d 884, 888 (1945, 5th Cir., Holmes, Ct. J.).  See also 75 C.J.S. "Receivers," §  103, pages 746-747.
As was well stated in 10 Am. Jur. 2d, Banks, §  801, page 772:
"The mere fact that funds deposited in a bank are exempt from claims of creditors of the depositor does not entitle the depositor, upon the subsequent insolvency of the bank, to a preference out of its assets.  This [***19]  rule applies, for instance, to deposits of pension money, war risk insurance proceeds, and veterans' compensation, so exempted.  Furthermore, it has been settled by the United States Supreme Court that a deposit, made by the guardian of an incompetent veteran in a bank which subsequently became insolvent, of war risk insurance and disability compensation payments received from the government is not entitled to 

 [*396]  priority of payment out of the assets of the bank as a debt due the United States."
The Supreme Court case referred to is Spicer v. Smith, 288 U.S. 430, 53 S. Ct. 415, 77 L. Ed. 875, 84 A.L.R. 1525 (1933); Cf. Pagel v. Pagel, 291 U.S. 473, 54 S. Ct. 497, 78 L. Ed. 921 (1934).
See also Andrew v. Colorada Savings Bank, 205 Iowa 872, 219 N. W. 62 (1928), in which the Supreme Court of Iowa, after construing the Act of 1873, c. 234, s. 33 (Rev. St. §  4747), as providing an exemption from execution from the creditors of the veteran only, stated:
"Manifestly, the intention of the state and the Federal government was to so surround the pensioner with protection that his creditors would not be able to seize the subject-matter of the bounty and thus deprive [***20]  him of its use.  In other words, during the course of human events, the thought became developed among states and nations that for the good of mankind, there are instances when it is best that creditors go unpaid in order that certain individuals in society may have a particular source of income dedicated to personal or family sustenance, maintenance, and enjoyment.  Primarily, the aim is to defend against the onslaught of creditors.  Whose creditors?  Clearly, those of the debtor who has a right to assert the exemption, and none other.  ***
"Consequently, it is consistent with and within the purview of the legislative idea, as well as in harmony with the numerous judicial pronouncements, to hold that the exemption in this instance is limited in its scope to security against the encroachments of appellee's personal 'creditors' only.  Before he can have a 'creditor,' he must owe a debt.  Was his property taken in the case at bar to satisfy a financial obligation which he owed to anyone?  Therein lies the criterion for a decision here.  ***
" [**552]  So when, during the administration of the insolvent institution's affairs, the receiver, by appropriating 

 [*397]  the assets,  [***21]  was thereby using the bank's property for the payment of its liabilities, rather than appellee's money for the payment of his obligations.  *** He 'owed' no debts, and had no creditor; therefore, the prerequisite for the operation of the exemption did not exist."
For the reasons stated the Smolin claim is not entitled priority over the claims of the other free shareholders.
Smolin relies on the decision of the Supreme Court of the United States in Porter v. Aetna Casualty & Surety Co., 370 U.S. 159, 82 S. Ct. 1231, 8 L. Ed. 2d 407 in which it was held that a judgment creditor of an incompetent veteran could not successfully maintain an attachment against the accounts of the committee of the veteran in two federal building associations in the District of Columbia, the accounts being fully insured by the Federal Savings and Loan Insurance Corporation and the money in the accounts represented in substantial part deposits of the incompetent veteran's disability payments needed for his support and maintenance, on the theory that the funds retained the characteristics of money rather than those of an investment.
It may well be that the facts in the case at bar and the Maryland [***22]  law in regard to the status of free shares in building and loan associations n6 distinguish this case from Porter, but, because of our opinion above set forth in regard to the proper construction of 38 U.S.C. §  3101(a), we do not deem it necessary to pass upon the issue as to whether or not the funds of Smolin in First Fidelity for which a right to priority is claimed, were an investment.

n6 Cf. Jolly v. First Union Savings & Loan, Inc., 235 Md. 161, 201 A. 2d 4 and Acts of 1961, Chapter 205, Code (1964 Cum. Supp.), Art. 23, §  161X.

Order affirmed, the appellant to pay the costs.  

82 of 138 DOCUMENTS 

DYSON v. STATE 

No. 238, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 398; 209 A.2d 609; 1965 Md. LEXIS 667 

April 27, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed May 22, 1965, Denied June 2, 1965; Motion to Correct Record Filed May 22, 1965, Granted June 2, 1965, and Per Curiam Opinion Filed, Reported at 238 Md. 546, Infra.  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Rape Case -- Courtroom Identification By Victim Admissible Into Evidence -- Weakness Of, Went To Weight Of Testimony -- Confronting Defendant With Victim In Police Captain's Office Did Not Violate His Constitutional Rights.  In the present rape case the Court found no error in the admission into evidence of the victim's courtroom identification of the defendant as her attacker.  While she had failed to recognize him in a line-up and in a police captain's office until he spoke, these facts were before the jury and went to the weight of her testimony, but did not make it inadmissible. The trial court's instructions to the jury upon this point suggested full consideration of the weakness of the failure of the extrajudicial identification. Nor was the defendant unconstitutionally required to incriminate himself when he was taken to the captain's office to meet the victim, who did [***2]  not recognize him until he spoke, and then apparently remembered his voice.  Requiring a suspect before trial to reasonably present his physical attributes as an aid or guide to identification does not amount to requiring him to incriminate himself or affront any other of his constitutional rights.
Criminal Law -- Statement Of Defendant -- State Not Required To Offer Testimony Of All Policemen Present When Statement Was Made Under Circumstances Here.  Where the testimony of two police officers produced by the State was the product of personal observation and knowledge, covered all critical periods from the arrest to the making of the defendant's statement, was not controverted by the accused, and, if believed, was proof that the statement was in fact voluntary, the State was not required to offer testimony of all of the policemen present when the statement was made.
Criminal Law -- Arrest Upon Suspicion Of Committing Misdemeanor Was Illegal -- But Statement Of Defendant Voluntary In Fact Is Not Rendered Inadmissible Merely Because It Was Given After Illegal Arrest, Without Advice Of Counsel And Without Advice Of Interrogator Of Right To Remain Silent.
Criminal Law --  [***3]  Statement Of Defendant -- No Showing Made That It Was Not A Complete Account Of Period And Events Which It Purported To Cover.
Criminal Law -- Confession Of Other Person -- State Entitled To Read Whole Confession Into Evidence To Rebut Defense Inference That State Had Chosen To Exonerate One Who Had Fully Confessed, And To Prosecute Defendant Who Had Made Only A Damaging Admission.  A confession by one other than the defendant, that he committed the crime in question, should be received and considered by the trier of the guilt of the accused, unless it is clearly collusive, frivolous or otherwise obviously untrustworthy. Counsel for the defendant in this rape case read to the jury only that part of another person's confession to the rape and examined a police officer as to details mentioned therein and admissions made by the other person.  The State then was permitted on cross-examination to read to the jury that part of the other person's confession which the defense had not read, and to show by the officer's testimony a number of demonstrable errors, inconsistencies and improbabilities therein.  There being no evidence of collusion as to the other's confession, which was [***4]  not obviously untrustworthy upon its face, it properly went before the jury for its consideration in determining the validity of the defendant's admission, and whether upon all of the evidence his guilt had been proven.  Had the testimony ended upon the point where the defense rested, the jury would not have had before it enough evidence properly to perform its duty to judge the worth of the other's confession and the guilt of the defendant.  The Court concluded that the State was entitled to read into evidence the whole of the other's confession and to explain the discrepancies therein to provide the background to rebut the inference which the defense sought to create and leave with the jury that, for some unexplained reason, the State had chosen to exonerate one man who had fully confessed and to prosecute the defendant who had made no more than a damaging admission.
Evidence -- Rape Case -- No Abuse Of Discretion In Admitting Photograph Of Victim's Face Into Evidence -- Corroboration Of Defendant's Admission That He Struck Victim Severely And Of Victim's Testimony As To Attack Upon Her -- Relevant For Jury To Consider As To Whether It Would Qualify Its Verdict -- Jury Cautioned  [***5]   That Photograph Was Before It Only To Show Physical Condition At Date And Time Specified.
Criminal Law -- Rape Case -- Instructions To Jury -- No Error Found Under Circumstances Here.  The instructions to the jury in this rape case were held to have given recognition to the defendant's theory that another person was the only guilty man and aided the jury in accepting, or rejecting as it did, that theory.  The trial judge's charge meant that the other's confession alone could not incriminate the defendant, and what that person had told the police was not "in and of itself" evidence against the defendant, but that the other's confession bore upon whether the State rightly and accurately had chosen between the two suspects, and, therefore, bore upon the defendant's guilt or innocence. Nor was there any error in the charge under the circumstances when the trial judge stated that the defendant had not admitted rape or intent to rape, which could only have been helpful to the defendant since it emphasized to the jury that he had not confessed to the serious crimes charged.  The court correctly stated that the defendant had confessed to simple assault, but he told the jury that [***6]  they were not to be influenced by his remarks "or as to what I believe the admission means".
Criminal Law -- Rape -- Jury Case -- Evidence Held Sufficient To Permit Conviction -- Identification By Victim -- Inconsistencies In Her Testimony Were Often More Apparent Than Real, And In Any Event, Were Relatively Minor And Did Not Reach Vital Points.
Criminal Law -- Rape Case -- Death Penalty Was Not Cruel And Unusual Punishment, Where Jury Had Not Qualified Its Verdict By Adding Words "Without Capital Punishment", As Statute Permits.  

SYLLABUS:

Kenneth J. L. Dyson was convicted of rape by a jury, sentenced to death and from the judgment entered thereon, he appeals.  

COUNSEL:
Joseph G. Koutz for the appellant.
John W. Sause, Jr., 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 the appellee.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*401]   [**610]  The appellant Dyson was charged with rape in two cases and, in each case, the jury found him guilty.  In one case,  [***7]  not now before us, the jury added to their verdict the words "without capital punishment" and the sentence was imprisonment for twenty years; in the other, the case before us, the jury did not qualify their verdict of guilty of raping Mrs. Helen Kelly and the court imposed the death penalty. The appeal is from the latter judgment and sentence.
At the trial below in the Kelly case, the strategy of the defense was to attempt to persuade the jury that the rape had been committed by one James Melvin.  The trial  [**611]  tactics which it was hoped would make the strategy successful were to prevent the victim from identifying Dyson as her assailant, to keep out of evidence damaging admissions made by Dyson to the police, and to present to the jury the fact that Melvin had confessed to the Kelly rape and keep from the jury any explanation of why the police and the States' Attorney did not believe Melvin committed that crime and, therefore, why they did not prosecute him for it.  In this appeal, Dyson continues his strategy by claiming reversible errors in the actions of Judge Harris in (a) permitting the court room identification to be made, (b) 

 [*402]  admitting the statements,  [***8]  and (c) permitting explanation of the reasons why Melvin was not prosecuted, and claims further such errors in (d) the admission of a photograph of the victim taken after the assault, (e) the court's instructions, (f) the insufficiency of the evidence, and (g) the imposition of the death sentence.
In late 1962 and early 1963 there had occurred a series of sexual assaults on women in the Bolton Hill area of Baltimore.  Mrs. Helen Kelly was brutally assaulted and raped about 1:00 a.m. on January 31, 1963 (as she was returning home from work) in the eighteen hundred block of Morris Alley, which runs between Eutaw Place and Madison Street, by a man who overtook her and seized her from behind.  Early in the morning of February 14, 1963, one Delores Cannaday was choked at Druid Hill Avenue and Laurens Street.  She promptly gave a description of her assailant to the police.  About eight-thirty in the evening of the same day, Officer Stanley, who was cruising in a police car with another officer and a policewoman, saw Dyson walking in the sixteen hundred block of Pennsylvania Avenue and, believing that he fitted the description of the Cannaday assailant, took him into custody. Five minutes [***9]  after the arrest, Sergeant Todd, who was in charge of the investigation of the Kelly rape and other similar crimes in the Bolton Hill neighborhood, arrived at the police car in which Officer Stanley had put Dyson, and witnessed a search of Dyson's person.  Certain articles were taken from him but the record does not reveal what they were.  Dyson was taken to police headquarters and questioned for some time about the Cannaday occurrence.  He was then placed in a cell where he remained until February 15, at seven-thirty in the evening, when he was put in a line-up which was viewed by Mrs. Kelly.  She was unable to identify Dyson.  About two hours later he was taken to a hospital and placed in another line-up as part of the investigation of another case.  At ten-thirty, interrogation as to the Kelly case began.  At eleven-forty-five he began a trip about the City with the police, pointing out the locations at which various assaults had occurred.  When he was returned to police headquarters at twelve-fifty-five, he was questioned further.  He began giving the statement used against him in the Kelly case 

 [*403]  at one-fifteen on the morning of February 16 and finished at two-ten.  In [***10]  this statement he said:

"When I turned the corner on Laurens Street from Eutaw Place I saw this lady [Mrs. Kelly] walking toward me in the 300 Block of Laurens Street.  We were both crossing Morris Alley, she was walking and I was running and I ran into her.  When I ran into her she began to struggle with me and because I was mad about the fight [which had broken out in a group of friends which Dyson had just left] I hit her with my fist that was partially closed.  I don't know where I hit her but I hit her solid because my hand swoll up and it was sore for a day or two."
After Dyson gave the statement he was taken to the office of police captain Deuchler, and Mrs. Kelly, who was there, again could not identify him until, the record indicates, she recognized his voice when he spoke, saying he did not know her (on cross-examination, when the validity of her  [**612]  court room identification was vigorously attacked, she insisted several times that, "I did not forget his voice").
We find no error in the admission into evidence of Mrs. Kelly's identification of Dyson as the man who attacked her.  The fact that she had failed to recognize him in a line-up and in the [***11]  captain's office until he spoke, all of which was before the jury, went to the weight of her testimony but did not make it inadmissible. Hursey, Jr. v. State, 233 Md. 243; Booth v. State, 225 Md. 71; Lenoir v. State, 197 Md. 495, 504 ("Both Miss Nelson and Mr. Cann testified that they identified his voice when they saw and heard him talking to Captain Kriss.  The testimony was clearly admissible, its weight and the credibility of the witnesses being for the jury.  Rowan v. State, 175 Md. 547, 557, 3 A. 2d 753").  See also Lubinski v. State, 180 Md. 1, 8-9. The court's instructions on the point to the jury suggested full consideration of the weakness of the failure of the extrajudicial identification. Judge Harris said, in part, of Mrs. Kelly's identification of Dyson:

"The weight and value to be given to this testimony, her inability to pick him out of a line-up, her ability 

 [*404]  to pick him out at the trial table, merely means that the issue is sufficient to be submitted to you for your determination, and not that of the court.  It can or cannot, in you own sound judgment, amount to a sufficient identification of the defendant by Mrs. Kelly.  You [***12]  must weigh the testimony, not on the number of witnesses who testify to either version, or either side, but on what you believe to be the most credible and reliable testimony under all the evidence."
The record offers no support for appellant's claim that he was unconstitutionally required to incriminate himself when he was taken to the captain's office to meet Mrs. Kelly.  All that appears is that Mrs. Kelly did not recognize Dyson until he said he did not know her and then, apparently, she remembered his voice.  This Court, as have many others, consistently has held that requiring a suspect before trial to assume a posture or give his fingerprints or put on clothing similar to that worn by the criminal at the time of the commission of the crime, or otherwise reasonably to present his physical attributes as an aid or guide to identification, does not amount to requiring the suspect to incriminate himself or affront any other of his constitutional rights. Williams v. State, 231 Md. 83, 86-87; Davis v. State, 189 Md. 640, 644; Shanks v. State, 185 Md. 437, 444; cf. Lenoir v. State, supra; 13 Md. L. Rev. 31, 33; 17 Md. L. Rev. 193, 208-211.
The appellant offered [***13]  no evidence that the admissions he made to the police were in fact involuntary, and, all things considered, including the length of the detention and interrogation and the manner and intensity of the questioning, there is nothing before us to require a finding that they were.  He argues first that the State did not offer as witnesses to voluntariness every policeman who was present when the statement was given; second that the statement was inadmissible because it was made while he was in custody after an illegal arrest and was without counsel and without advice as to his constitutional right to remain silent; and third that the statement was not complete.
Officer Stanley, one of the arresting officers, testified that no threats or promises were made and no inducements offered to 

 [*405]  Dyson while he was in their custody prior to being turned over to the custody of Sergeant Todd.  Sergeant Todd testified that he was present during all of the periods of interrogation of Dyson and that neither he nor anyone else made threats or promises to Dyson or offered him any inducements to confess.  This testimony, undenied by the  [**613]  appellant at the trial, persuaded Judge Harris [***14]  that the statement had been made voluntarily and he admitted it into evidence and submitted the question of its voluntariness to the jury under proper and appropriate instructions.  He was justified in so doing.  The State was not required to offer the testimony of all the policemen who were present when the statement was made.  The testimony of Officers Stanley and Todd was the product of personal observation and knowledge, covered all critical periods from arrest to the making of the statement, was not controverted by the accused and, if believed, was proof that the statement was in fact voluntary.  Streams v. State, 238 Md. 278, and cases cited.
The arrest of Dyson would clearly seem to have been on suspicion that he had committed a misdemeanor, simple assault, on Delores Cannaday, and was therefore illegal.  In Maryland a statement voluntary in fact is not made inadmissible merely because it was given after an illegal arrest, without the advice of counsel and without the advice of the interrogator of the right to remain silent.  Hadder v. State, 238 Md. 341; McChan v. State, 238 Md. 149; Johnson v. State, 238 Md. 140; Davis v. State, 236 Md. 389, 398; Anderson  [***15]   v. State, 237 Md. 45; Swartz v. State, 237 Md. 263; Green v. State, 236 Md. 334; Mefford and Blackburn v. State, 235 Md. 497; Bean v. State, 234 Md. 432; Prescoe v. State, 231 Md. 486; and Hyde v. State, 228 Md. 209.
There is no substance to the claim that the statement made by Dyson was incomplete.  The appellant's theory is that not everything Dyson said while in custody was spelled out.  Sergeant Todd's testimony was that every word said by him or Dyson from the time the statement began until it ended was included in the writing.  Appellant makes no showing that the statement was not a complete account of the period and events it purported to cover.
In support of his defense that Mrs. Kelly had been raped by 

 [*406]  James Melvin, the appellant offered the only witnesses he presented, putting on the stand some of the policemen who had arrested and questioned Melvin, his parole officer and a doctor who testified as to his psychiatric history.  In his examination of the ranking officer who had interrogated Melvin, counsel for the appellant elicited the fact that in a written statement Melvin had confessed to raping both Mrs. Kelly and one Icodean Zeikiel.  [***16]  He offered the statement in evidence and it was admitted.  He then proposed to read only that part of the statement which referred to the Kelly case and the court ruled that the entire contents were in evidence and could be read to the jury by either the State or the defense.  Counsel for appellant then elected to read to the jury only Melvin's confession to the rape of Mrs. Kelly.  When he had finished this reading, he examined the police officer who had taken the statement as to details mentioned in the confession and as to admissions by Melvin that he had previously been accused of (and sometimes convicted for) sexual crimes, including an accusation of rape. He concluded his examination with the question: "Sergeant, did you charge the defendant [Melvin] with this crime?", referring to Mrs. Kelly's rape, to which the answer was: "I did not."
On cross-examination the State's Attorney was permitted to read to the jury that part of Melvin's confession which the defense had not read and to show by the police officer's testimony that there were a number of demonstrable errors, inconsistencies and improbabilities in Melvin's confession. For example, Miss Ziekiel had not been raped [***17]  and Melvin said he had raped her; the clothing worn by the victims was misdescribed and the actual clothing he could not identify; Melvin took the police to an alley a block north of and a block east of the locale of the Kelly rape and said the crime occurred at this wrong spot.   [**614]  It was also brought out that Melvin had been at Crownsville Hospital for mental patients and was an avid reader of newspaper accounts of crime.  The discrepancies in Melvin's statements led the police to confer with the State's Attorney and, as a result of the conference, it was decided not to charge Melvin, but to arrange for his recommitment to Crownsville.
We think there was no error in permitting the reading of the whole of Melvin's confession and the presentation of the reasons why the State had not prosecuted him.

 [*407]  Although Maryland formerly followed the general rule that a penal declaration against interest of a third party was not admissible evidence, the later cases have established that a confession by one other than the defendant, that he committed the crime in question, should be received and considered by the trier of the guilt of the accused, unless it is clearly collusive,  [***18]  frivolous or otherwise obviously untrustworthy. Brady v. State, 226 Md. 422; Thomas v. State, 186 Md. 446; Wiggins v. State, 235 Md. 97, 103; Brennan v. State, 151 Md. 265; 23 Md. L. Rev. 178.
In Brady, Chief Judge Brune, speaking for the Court in considering two fairly common applications of the modern rule (or exceptions to the former rule), quoted with approval these statements led the police to confer with the State's Attorney and, third rules of that case) (p. 428 of 226 Md.):
"In Thomas v. State, supra, 186 Md. at 452, Judge Delaplaine, speaking for the Court said: '[W]e hold that where a witness has made a written confession that he committed the crime with which the defendant is charged, the defendant should be allowed to introduce the confession in evidence and question him in regard to the confession and the circumstances under which he made it.  We further hold that where in a criminal case an officer has secured contradictory confessions from two different persons, the defense should be permitted to question him about both confessions and we further hold that such a confession by a third party is admissible unless it appears that there was [***19]  some collusion in obtaining it.'"

Judge Brune later said (p. 429):

"To what extent a confession or admission of a third party is free of collusion and bears the indicia of trustworthiness is a question which we think should be entrusted in the first instance to the sound discretion of the trial judge.  Certainly, the 'confession' of a crackpot, anonymous or otherwise (and such 'confessions' are not uncommon in cases of wide notoriety), would not bear any hallmark of trustworthiness, and would 

 [*408]  not call for the application of the second or third rules of the Thomas case."
Since there was no evidence of collusion as to the Melvin confession and it was not on its face obviously untrustworthy, it properly went before the jury for its consideration in determining the validity of Dyson's admission and whether under all the evidence his guilt had been proven.
The jury would not have had before it enough evidence properly to perform its duty to judge the worth of the Melvin confession and, overall, the guilt of the appellant, if the testimony on the point had ended when the defense rested.  The State was entitled to read into evidence the whole of the Melvin [***20]  confession and to explain the discrepancies in it to provide the background to rebut the inference the defense sought to create and leave with the jury, that, for some unexplained reason, the police and prosecutor had chosen to exonerate one man, Melvin, who had made a full confession of rape of Mrs. Kelly and to prosecute another man, Dyson, who had  [**615]  made no more than a damaging admission.  Wiggins v. State, Brady v. State, Thomas v. State, all supra.
The photograph of Mrs. Kelly's face, which the appellant complains the jury should not have seen, shows the severity of the beating to which she was subjected.  The picture was admissible as relevant to several pertinent facets of the case.  Sisk v. State, 232 Md. 155, 158. It corroborated Dyson's admission that he struck the victim so "solid" that his hand "swoll up" and was sore for several days.  It corroborated Mrs. Kelly's testimony as to the attack on her and it was relevant for the jury to consider on the determination it would make of whether or not to qualify its verdict.  At the time of the admission of the photograph, the court cautioned the jury that it was before them only to show "the physical condition [***21]  of this witness [Mrs. Kelly] on the date and time specified." There was no abuse of discretion in the admission of the picture.
Dyson's trial counsel did not state "the portion, or omission or failure to instruct" to which he objected in the court's advisory instructions as he is required to do if the errors claimed to have been committed are to be considered on appeal under 

 [*409]  Md. Rules 756 f and g, but he has asked us to act under the provision of the latter rule that:
"*** the Court of Appeals either of its own motion or upon the suggestion of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by section f of this Rule."

Because the death sentence was imposed, we have carefully reviewed the instructions given by Judge Harris and have found no prejudicial error.
The appellant argues that the charge was misleading and contradictory, and ignored theories of the defense which were supported by the evidence -- that is, that admittedly only one man perpetrated the Kelly rape and that man was Melvin.  The supposed error is found in the instructions [***22]  that the Melvin confession "*** in and of itself has nothing whatsoever to do with guilt or innocence of the defendant in this case * * *." The court followed this by saying next:

"*** although you may consider the effect of Melvin's statement as well as the defendant's statement in arriving at your verdict.  My purpose in making this statement to you is to emphasize that any testimony in the nature of hearsay, told by Melvin to the lieutenant, bears upon only the issue of arrest [the arrest and detention of Dyson previously referred to in this connection in the charge] and upon the issue of the guilt or innocence of the defendant in this case."
We think it clear that Judge Harris meant -- and that the jury would have known that he so meant -- that Melvin's confession alone could not incriminate Dyson and that what Melvin had told the police was not "in and of itself" evidence against Dyson, but that the Melvin confession bore upon whether the police and the prosecutor rightly and accurately had chosen between two suspects, and, therefore, bore upon Dyson's guilt or innocence. These instructions did give recognition to the appellant's 

 [*410]  theory that Melvin [***23]  was the only guilty man and aided the jury in accepting, or rejecting as they did, that theory.
Appellant's other quarrel with the instructions is that the court, after instructing on the general distinction between a confession and an admission, erred by saying:
"The admission given by the defendant in this case, which has been admitted into evidence, shows obviously that he did not confess to rape or to an intention to rape. It does amount, in my  [**616]  advisory opinion, to a confession of assault upon Mrs. Kelly; but the decision is up to you on all these matters.
"You are not to be influenced by any remarks that I may make, or as to what I believe the admission means."
Judge Harris had previously told the jury what simple assault was in distinction to assault with intent to commit various crimes.  In context the judge was illustrating concretely the differences between confessions and admissions he had previously explained abstractly, and his expressed view that Dyson had not admitted rape or intent to rape could only have been helpful to Dyson since it emphasized to the jury that he had not confessed to the serious crimes charged.  There can be no doubt that the [***24]  court was right in saying that Dyson had confessed to simple assault and he told the jury they were not to be influenced by his remarks "or as to what I believe the admission means." We find no error under the circumstances.  Wiley v. State, 237 Md. 560.
There is no merit to appellant's argument that the evidence was insufficient to permit the jury to have convicted him.  He seeks on this aspect of the appeal to throw out the identification by Mrs. Kelly -- and indeed all she said from the stand -- because of inconsistencies in her testimony which are claimed to be so great and so material as to destroy the credibility of everything she said.  The inconsistencies were often more apparent than real and, in any event, were relatively minor and not as to vital points.
The final claim of appellant is that the sentence was cruel and unusual punishment.  The Legislature in Code (1957), Art. 27, Secs. 461 and 463, has authorized the death penalty in rape 

 [*411]  cases if the jury does not add to their verdict the words "without capital punishment." The jury did not add those words to their verdict in this case.  The sentence was not, therefore, cruel and unusual.  Giles v. State [***25]  , 229 Md. 370, 388, app. dis. 372 U.S. 767; Merchant v. State, 217 Md. 61, 70; Lowery v. State, 202 Md. 314, 321; Reid v. State, 200 Md. 89, 92-95, cert. den. 344 U.S. 848.
Judgment affirmed.
Per curiam opinion on motions for rehearing and to correct record follows at page 546 of 238 Md., infra.  

83 of 138 DOCUMENTS 

TEAL v. SCHISSLER 

No. 287, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 620; 209 A.2d 244; 1965 Md. LEXIS 689 

April 27, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed May 17, 1965, Denied May 25, 1965.  

PRIOR HISTORY:
Appeal from the Baltimore City Court; Digges, J.  

DISPOSITION:
Judgment affirmed, with costs.  

HEADNOTES:

Negligence -- Automobile Accident -- Trial Court Properly Granted Directed Verdict For Appellee Where Appellant Failed To Show Some Act Of Negligence On The Part Of Appellee. 

SYLLABUS:

Suit for personal injuries, sustained as a result of an automobile accident, by Gertrude D. Teal, a passenger, against Harry Schissler, the driver of the automobile.  From the directed verdict in favor of the defendant and the judgment entered thereon, plaintiff appeals.  

COUNSEL:
Leonard J. Kerpelman for appellant.
Foster H. Fanseen, with whom were Ginsberg & Ginsberg and Hyman Ginsberg on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Horney, Marbury, Sybert and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*621]   [**244]  The appellant, Gertrude D. Teal, plaintiff below, was injured while riding as a passenger in an automobile operated by the appellee, Harry Schissler.  A directed verdict was entered in favor of the appellee at the close of the plaintiff's case by Judge Digges on the ground that there was no testimony [***2]  showing that the defendant was negligent.
On a cold February night, appellant was a passenger in appellee's automobile which he was driving down hill on Rose Street, a two lane thoroughfare in Baltimore City.  He testified that he drove on this street many times each day, and that water would accumulate at the bottom of the hill. He was proceeding down the street within the posted speed limit when an oncoming car skidded broadside in front of his car.  His efforts to maneuver safely were prevented by his skidding on a patch of ice into a telephone pole and, as a result, the plaintiff sustained injuries.
 [**245]  On appeal, the appellant contends that the court erred in granting the appellee's motion for a directed verdict. We do not agree.  The burden of proof was on the appellant-plaintiff to show some act of negligence on the part of the appellee.  An examination of the record reveals no negligence by the driver of the car.  No excessive speed was disclosed nor was there any indication that he should have anticipated a car skidding in front of him.  When the emergency arose, he turned his vehicle to the right to miss the oncoming car, hitting a telephone pole. Under the circumstances,  [***3]  there being no act of negligence by the appellee, the trial court properly directed a verdict for him.  Morris v. Schneider, 237 Md. 647, 207 A. 2d 507.
Judgment affirmed, with costs.  

84 of 138 DOCUMENTS 

SELLMAN v. SELLMAN 

No. 232, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 615; 209 A.2d 61; 1965 Md. LEXIS 687 

April 13, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Cardin, J.  

DISPOSITION:
Order reversed; appellant to pay the costs.  

HEADNOTES:

Alimony -- Pendente Lite -- Order Requiring Payment By Husband For Period Between Trial And Decree Reversed, Where Based Upon Abortive Statement Made At Trial Which Did Not Amount To Enforceable Order.  Where the chancellor in this case stated, when asked whether alimony pendente lite would continue until his decision, that it "Continue as it is until such time as --", the Court held that this abortive statement made at the trial was not an enforceable order requiring payments to continue until the decision of the case, because the language did not state how long they were to continue, and the break in the sentence indicated an unfinished thought resulting in no adjudication.  Before a person may be held in contempt for violating an order or decree, it must be definite, certain and specific in its terms, and he must have notice of it.  Maryland has long followed the generally prevailing practice that orders and decrees in equity are required to be in writing and signed by the chancellor. Therefore, the chancellor was in error in passing an order [***2]  requiring the husband to pay a lump sum for the period between the trial and the decree. 

SYLLABUS:

Petition by Estella Mae Sellman against Francis O'Donald Sellman for the payment of alimony pendente lite.  From an order requiring the husband to pay $ 790.00 for the period between the trial and the decree, he appeals.  

COUNSEL:
Hilary W. Costello for the appellant.
Submitted on brief by Wallace Dann, Howard Calvert Bregel and Calvert Ross Bregel for the appellee.  

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

OPINIONBY:
PER CURIAM 

OPINION:

 [*616]   [**61]  In this appeal a husband challenges an award of alimony pendente lite to his wife made by an order passed more than six months after a decree granting the wife a limited divorce and requiring the husband to pay permanent alimony.
After the wife had sued for a divorce a mensa, an order was signed requiring the husband to pay alimony pendente lite of 

 [*617]  $ 40.00 per week "for 24 weeks, or until trial of the case if trial shall occur during such period, subject to further Order of the Court." At the trial 19 weeks later (the husband in the meantime having made the required payments), the wife's [***3]  counsel asked the Chancellor whether alimony pendente lite would continue until his decision in the case, to which the Chancellor replied, "Continue as it is until such time as --." After "breaking off" the statement, the Chancellor made a reference to the custody of a child of the parties, not germane  [**62]  here.  He did not elaborate his statement concerning alimony pendente lite, and no written order extending it was signed, and no docket entry made.
The husband made five more payments (thus having made a total of 24 weekly payments of $ 40.00 each) and then stopped.  Seven months after the trial, the Chancellor filed a decree granting the wife a limited divorce and, among other things, requiring the husband to pay permanent alimony and "all arrearages in alimony pendente lite." The husband has been making the payments of permanent alimony.
During the seven months prior to the decree the wife took no action to enforce alimony pendente lite payments.  Six weeks after the decree she filed a petition to have the husband held in contempt for not having made payments between the trial and the decree, but the Chancellor dismissed the petition because no transcript [***4]  of what he had said at the trial was produced.  After a hearing upon a later petition, at which the transcript was produced, the Chancellor ruled, in effect, that what he had said at the divorce trial amounted to an order for continuance of the alimony pendente lite until decision of the case, and he passed an order (the subject of this appeal) requiring the husband to pay $ 790.00, based on the rate of $ 30.00 per week, as alimony pendente lite for the period between the trial and the decree.
We do not think the words "Continue as it is until such time as --" amount to an enforceable order.  The language does not state how long the payments were to continue.  The break in the sentence indicates an unfinished thought, so that no adjudication resulted.  It is obvious that the Chancellor did not formulate a definite order, for he changed the amount of the payments per week in the later order.  Before a person may be 

 [*618]  held in contempt for violation of an order or decree, it must be definite, certain and specific in its terms.  2 Nelson, Divorce, secs. 16.29 and 14.61; 30 C.J.S., Equity, sec. 598.  The person to be charged must have notice of such an order.  [***5]  Rethorst v. Rethorst, 214 Md. 1, 133 A. 2d 101 (1957); 17 Am. Jur. 2d, Contempt, sec. 41, p. 45.  Under the generally prevailing practice, orders and decrees in equity are required to be in writing and signed by the Chancellor. 30 C.J.S., Equity, sec. 591.  Maryland has long followed this practice.  It has been held that an equity decree is not effective until reduced to writing, approved by the Chancellor and filed for record.  Anastaplo v. Radford, 153 N. E. 2d 37 (Ill. 1958). Since the Chancellor predicated the order appealed from in the instant case upon the assumption that the abortive statement made at the trial was an enforceable order, we must reverse.
Order reversed; appellant to pay the costs.  

85 of 138 DOCUMENTS 

SHUPE v. STATE 

No. 216, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 307; 208 A.2d 590; 1965 Md. LEXIS 656 

April 7, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment reversed and case remanded for a new trial.  Costs to be paid by the Mayor and City Council of Baltimore. 

HEADNOTES:

Cross-Examination -- Undue Restriction Of, To Prejudice Of Appellant, Held Reversible Error.  In the instant case, appellant was convicted, on the basis of circumstantial evidence, of the larceny of $ 316.67 from a cigar box in an unlocked storeroom in the gas station where his brother-in-law was employed.  On direct examination the testimony of the State's witnesses, the brother-in-law, another employee and the station owner, showed a loose, slipshod method of handling and protecting the cash receipts.  When on cross-examination defense counsel sought to elicit from the brother-in-law whether there had been any shortages of money at the station in the past, the State's objections to such questions were sustained by the trial judge.  The Court held that the disallowance of these questions unduly restricted cross-examination to the prejudice of the appellant and was reversible error.  Considering the direct testimony, a question on cross-examination exploring the possible consequences of the [***2]  method of handling cash receipts was properly within the scope of the direct.  "Where a general subject has been entered upon in the examination in chief, the cross-examining counsel may ask any relevant question on the general subject * * *." Here, the questions were relevant to the issues of whether there had been a theft and whether the appellant was the thief.  The witnesses may have disclaimed knowledge of any prior shortages, but appellant had the right to ascertain whether the reply would be favorable or unfavorable to him.  

SYLLABUS:

William Frank Shupe was convicted of the larceny of $ 316.67 by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
William Harris Zinman for appellant.
R. Randolph Victor, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and William A. Swisher, 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, J., delivered the opinion of the Court.  

OPINIONBY:
SYBERT 

OPINION:

 [*308]   [**590]  The appellant,  [***3]  William Frank Shupe, was convicted in a non-jury trial in the Criminal Court of Baltimore of the larceny of $ 316.67 and was sentenced to a term of 18 months in the House of Correction.  The appellant entered this appeal after the sentence was suspended and he was placed on probation for 18 months and ordered to make restitution.
The evidence produced by the State showed that on the night of August 18, 1963, one Mosby was on duty at a large 24 hour gasoline station in Baltimore.  At approximately 11 P.M. another employee, Jenkins, who is the brother-in-law of the appellant, came on duty to relieve Mosby.  The appellant, Shupe, arrived at the station in his truck a few minutes later.  Both Jenkins and Mosby testified that at about midnight Mosby gave Jenkins all the cash belonging to the station that he had on his person.  Jenkins also testified that when he came on duty there was another employee by the name of "Charlie" (whose last name he could not recall) on duty besides Mosby and that Charlie handed him an unknown amount of money and left immediately.  Mosby, however, testified that he was on duty alone when Jenkins arrived. Mosby said the amount turned over by him to Jenkins [***4]  included all the cash receipts taken in by him and the cash given to him when he had come on duty earlier ("As near as I can remember, I think it was from a boy by the name of Buck Webb").  Neither  [**591]  Jenkins nor Mosby counted the money and neither knew how much money changed hands though Jenkins testified that he saw some tens and twenties.  

 [*309]  They both testified that Shupe was just outside the open office door when Mosby gave Jenkins the money inside.
Jenkins then put the money into a cigar box which was kept in an unlocked storeroom in the rear part of the station. Access to the storeroom was possible only from a service or "lube" room which could be entered from the office or through large doors at the front.  The door of the storeroom was on swinging hinges and was never locked.  Mosby left the station a little after midnight.  Jenkins testified that soon thereafter while he was taking care of some customers at the gas pumps out front he saw Shupe inside the station. His versions of the circumstances were substantially different on direct and cross examination. On direct examination, Jenkins said he saw Shupe come out of the storeroom into the lube room,  [***5]  walk out of the station, and get into his truck.  He said Shupe "hollered" to him and said he would see him after awhile, and then drove away.  He stated twice that he said nothing to Shupe at that time.  On cross examination, however, he testified that he didn't see Shupe come out of the storeroom, but saw him in the lube room a few feet from the storeroom door, and coming from that direction.  He said he asked Shupe what he was in there for, and that Shupe replied that he was looking over the place.  He also said that Shupe bought some gasoline from him, while he was waiting on the other customers, and paid him with a ten dollar bill, also giving Jenkins one dollar which he owed him.
Jenkins testified that he was kept busy waiting on customers for from 20 to 30 minutes after Shupe had left.  Then at about 1 A.M. he went into the storeroom and discovered that the money was gone.  He reported the loss to the police.  At around 2 A.M.  Shupe returned to the station and Jenkins accused him of having stolen the money.  Soon thereafter Shupe was arrested and denied that he had taken the money.  Jenkins testified that Shupe had been drinking when he first visited the station on August [***6]  18, that he mentioned that he would "feel better" if he had more money, and he said that Shupe knew where the money was kept.
The owner of the station testified as to the amount of money that should have been in Jenkins' possession, or in the cigar box, at the time of the theft, and explained how he arrived at 

 [*310]  the amount.  He said that an accounting was made at the station in the regular course of business only once during a 24 hour period, usually in the morning.  It was the procedure to read the meters on the several gasoline pumps, inventory other petroleum products, subtract credit sales, and then the resulting figure should equal the amount of cash receipts during the 24 hour period. There were five employees.  The money during the 24 hour period would be kept on the person of the employee on duty or in the cigar box and would be passed from employee to employee without an accounting. It is not clear whether or not an exact record of charges for services was kept.  Therefore, at any given time during a 24 hour period, except when the accounting was done, no one knew how much money was on hand or, in fact, how much should be on hand.  The owner testified that each [***7]  employee during the 24 hour period was responsible for any losses, and that in fact Jenkins was in the process of making restitution for this loss.
Shupe testified that he had visited the station to spend some time with his brother-in-law, Jenkins, as he had done several times previously.  He denied that he had been drinking, but stated that when he found Jenkins busy he bought some gasoline, said he would come back, and drove away.  He admitted that on a previous occasion Jenkins had shown him the cigar box containing the station receipts in the storeroom, but he denied the theft. He returned to the station at 2 A.M.  The stolen money was not found on Shupe.
 [**592]  On this appeal Shupe raises several questions, but we find it necessary to deal with only one of them -- whether the trial judge committed prejudicial error when he twice sustained objections by the State to questions asked of Jenkins on cross-examination by defense counsel. Both questions in effect asked Jenkins whether there had been any shortages of money at the station in the past.  The questions were not answered, and we think the rulings unduly restricted the cross-examination to the prejudice of the appellant.  [***8]  Although the allowance or disallowance of certain questions on cross-examination is normally left to the sound discretion of the trial judge, Wells v. State, 236 Md. 381, 203 A. 2d 912 (1964); Lloyd v. State, 219 Md. 343, 149 A. 2d 369 (1959), cert. den. 359 U.S. 1014 (1959), in 

 [*311]  cases where there is an abuse of discretion to the prejudice of a party we must reverse.  Plank v. Summers, 205 Md. 598, 109 A. 2d 914 (1954). Cf. Palacorolla v. State, 232 Md. 435, 194 A. 2d 96 (1963).
The prevailing American rule relating to the scope of cross-examination, which is applicable in Maryland, was stated as follows in Williams v. Graff, 194 Md. 516, 522, 71 A. 2d 450 (1950):
"*** where a witness is called to testify on a particular point, the adverse party in the cross-examination of the witness is restricted to the point on which he testified and cannot question him in regard to other issues in the case.  Of course, a party may ask questions on cross-examination to show bias or prejudice in the witness, or to lay a foundation to admit evidence of prior contradictory statements.  ***
"However, our rule does not go to the extent of restricting the cross-examination [***9]  of the witness to the specific details inquired into on direct examination, but permits full inquiry into the subject matter entered into.  Where a general subject has been entered upon in the examination in chief, the cross-examining counsel may ask any relevant question on the general subject. * * *"
The extension of the rule, mentioned in the second paragraph just quoted, was applied in Plank v. Summers, supra (pp. 607-608 of 205 Md.).  We think the questions posed in the instant case were permissible under it.  The testimony of the State's witnesses, Jenkins, Mosby and the station owner, showed a loose, slipshod method of handling and protecting station receipts.  Therefore, a question on cross-examination exploring the possible consequences of such methods was properly within the scope of the direct, and relevant to the case.  Although defense counsel apparently did not know what the answers to the questions would be, "exploratory" type questions are well recognized, McCormick, Evidence, sec. 29, p. 55, and to prohibit their use under certain circumstances may be prejudicial, see Alford v. United States, 282 U.S. 687 (1931).

 [*312]  In the case before us [***10]  if the witness had answered the questions in the affirmative the case of the defendant would obviously have been benefited, in view of the business techniques employed at the station and since the evidence against the appellant was purely circumstantial.  The questions were relevant to the issues of whether there had been a theft and whether the appellant was the thief.  Of course, the witness might have answered in the negative or disclaimed knowledge of any prior shortages, but the appellant had the right to ascertain whether the reply would be favorable or unfavorable to him.  In any event the inquiry was relevant, and its exclusion prejudicial to the appellant.
Judgment reversed and case remanded for a new trial.  Costs to be paid by the Mayor and City Council of Baltimore.  

86 of 138 DOCUMENTS 

ASH v. STATE 

No. 229, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 317; 208 A.2d 691; 1965 Md. LEXIS 658 

April 7, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

New Trials -- Motion For, And Hearing On, Held Not A Part Of Original Trial And Right To Speedy Trial Did Not Apply To.  In the instant criminal case the appellant contended that the fact that seven months elapsed from the filing of his motion for a new trial to the time it was heard amounted to a denial of his constitutional right to a speedy trial. Art. 21, Maryland Declaration of Rights.  The Court held that although there is no question but that the appellant was entitled to a speedy trial, this right had no application to a hearing on a motion for a new trial. The Court felt that Art. 21 clearly imports guarantees applicable to the processes leading to and ending with the criminal trial itself, and it did not believe that either the motion for a new trial or the hearing thereon constituted a "trial" or any constituent part thereof within the meaning of Art. 21.  Moreover, the Court stated that the facts and circumstances of this case disclosed no undue or unnecessary delay in processing the appellant's motion for a new trial.
Trials -- End When Verdict Is Returned Not When Judgment  [***2]   Or Sentence Is Pronounced -- Hearing On Motion For New Trial Is Not A Part Of The Trial.  In the instant criminal case the appellant contended that a "judgment" is not final in a criminal case in Maryland until three days after verdict or until the disposition of the motion for a new trial, if one is filed within the three day period, and that therefore the disposition of the motion must be a part of the trial.  The Court did not agree.  It stated that the weight of authority is that a criminal "trial" ends when the guilt or innocence of the accused is determined, i.e., when the verdict is returned, not when the judgment or sentence is pronounced. Therefore, it was held that the fact that a judgment may not become final until the disposition of the motion for a new trial does not support the contention that the hearing on the motion is part of the trial.  

SYLLABUS:

Boysie E. Ash, Jr., was convicted in a non-jury trial of robbery, assault with intent to rob, assault, larceny and receiving.  The defendant filed a motion for a new trial and subsequent to the hearing thereon, the original sentence was reinstated and judgment was entered.  Defendant appeals.  

COUNSEL:
Nelson R. Kandel [***3]  for appellant.
R. Randolph Victor, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Morton A. Sacks, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City on the brief, for appellee.  

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

OPINIONBY:
SYBERT 

OPINION:

 [*318]   [**692]  On September 30, 1963, Boysie E. Ash, Jr. was tried in the Criminal Court of Baltimore before Judge Grady, without a jury, under an indictment charging robbery, assault with intent to rob, assault, larceny and receiving.  He was represented by counsel appointed for him as an indigent defendant.  The judge returned a verdict of not guilty in regard to the receiving count and then recessed the trial to allow substantiation of the alibi testimony of a defense witness.  The trial was resumed on October 24, 1963, at which time Judge Grady returned a verdict of guilty generally and imposed a sentence of not more than 6 years in the Maryland Institution for Men, to run from the date of arrest.
On October 27, 1963, Judge Grady "struck out" the sentence to allow [***4]  the filing of a motion for a new trial. (We held in a recent case that such action had the effect of suspending the execution of the sentence. Brown v. State, 237 Md. 492, 207 A. 2d 103 (1965)). The motion was filed on the same day.  On November 6, 1963, an order was signed transferring the defendant 

 [*319]  from the Maryland Institution for Men to the Baltimore City Jail pending the disposition of the motion.  Since under the rules of the Supreme Bench of Baltimore City (which hears all motions for new trials arising from its criminal courts), a copy of the transcript of testimony taken in the Criminal Court must be filed with the Supreme Bench before it will hear the motion, and a free copy of the transcript must be furnished to an indigent defendant if he requests it in seeking a new trial, Johnson v. State, 219 Md. 481, 150 A. 2d 446 (1959), the defendant ordered the preparation of the transcript in his case.  However, the court stenographer was delayed (presumably by the press of other work) in transcribing his notes.  The defendant testified that he wrote to Judge Grady in an attempt to hasten the transcription but was informed that he should contact the clerk of [***5]  the Criminal Court.  We found no such correspondence in the record.  However, the State conceded that the appellant, his mother and his counsel made approximately ten attempts to obtain the transcript, without success.  On March 31, 1964, Ash filed a motion to dismiss the indictment, alleging that the delay in the preparation of the transcript denied him his constitutional right to a speedy trial. When no action was taken on his motion to dismiss, he filed a petition for a writ of habeas corpus in the Baltimore City Court.
On April 9, 1964, most of the transcript was filed with the clerk of the Supreme Bench and on April 21 the remaining portion was filed.  On the latter date the petition for the writ of habeas corpus came on for hearing before Judge Jones.  The appellant based his petition on the contention that the delay in the preparation of the transcript which prevented the hearing on his motion for a new trial denied him his right to a speedy trial. Since at the time of the habeas corpus proceeding the transcript had been delivered to the Supreme Bench, Judge Jones denied his petition.  On May 27, 1964, the Supreme Bench heard the appellant's motion to dismiss and motion for [***6]  a new trial and denied both.  Finally, on June 17, 1964, Judge Grady reinstated  [**693]  the sentence that he had previously imposed.  This is an appeal from the June 17 judgment and sentence.
The appellant raises only one question: whether the fact that seven months elapsed from the filing of his motion for a new 

 [*320]  trial to the time it was heard amounted to a denial of his constitutional right to a speedy trial. Art. 21, Maryland Declaration of Rights.
Although there is no question but that the appellant was entitled to a speedy trial, we hold that this right has no application to a hearing on a motion for a new trial. We think the language used by the drafters of Art. 21 clearly imports guarantees applicable to the processes leading to and ending with the criminal trial itself, and we do not believe that either the motion for a new trial or the hearing thereon constitutes a "trial" or any constituent part thereof within the meaning of Art. 21.
While it does not appear that this Court has been presented with this exact question before, our decision in Plump v. Warden, 220 Md. 662, 153 A. 2d 269 (1959), is somewhat analogous.  In that case an applicant for leave [***7]  to appeal from an adverse post conviction determination contended, inter alia, that he was denied due process of law because he was not present at his post conviction hearing.  In holding that his absence from the hearing did not infringe any of his constitutional rights, we stated (at p. 664 of 220 Md.): "In general, due process of law does not require the presence of the accused during proceedings subsequent to his trial that determined his guilt, unless a new trial is granted." We noted also that there is no requirement or right that an accused be present during proceedings in an appellate court and that the weight of authority does not require his presence at the hearing on a motion for new trial.
The majority of jurisdictions hold that a defendant's presence at a hearing on a motion for new trial is not required because it is not part of the trial.  See cases collected in Annotation in 69 A.L.R. 2d 835 (1960). The case of Joseph v. State, 141 N. E. 2d 109 (Ind. 1957), cert. dism. 359 U.S. 117 (1959), which is the subject of the annotation just cited, is representative of the cases following this rationale.  The Indiana Supreme Court in rejecting Joseph's contention in [***8]  regard to his absence from the hearing on the motion for new trial stated (at p. 114) "The ruling on a motion for a new trial in a criminal case is not part of the trial of the accused as contemplated by the statutory and constitutional provisions of this State." See also Barber v. United States, 142 F. 2d 805 (4 Cir. 1944), cert. den. 322 U.S. 

 [*321]  741 (1944); Bradford v. State, 202 S. W. 2d 647, 648 (Tenn. 1947); and see Orfield, Criminal Procedure from Arrest to Appeal, 494, 498.  As Orfield points out, op. cit., p. 505, the Federal Rules of Criminal Procedure do not require the presence of the defendant at the hearing of a motion for a new trial.
The appellant contends that a "judgment" is not final in a criminal case in Maryland until three days after verdict or until the disposition of the motion for a new trial, if one is filed within the three day period, and that therefore the disposition of the motion must be part of the trial.  We do not agree.  The weight of authority is that a criminal "trial" ends when the guilt or innocence of the accused is determined, i.e., when the verdict is returned, not when the judgment or sentence is pronounced. See [***9]  69 A.L.R. 2d, supra, at p. 837.  Therefore, the fact that a judgment may not become final until the disposition of the motion for a new trial does not support the contention that the hearing on the motion is part of the trial.  In the case of People v. Stokes, 89 Pac. 997 (D. C. of App. Calif. 1907), the appellant claimed that since 35 days had elapsed between verdict and judgment he was denied his constitutional right to a speedy trial. In rejecting  [**694]  this contention the court stated (at p. 1000):
"A trial is 'the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue.' *** Pronouncing judgment, which is the formal declaration of sentence, is not the trial, nor any part thereof within the meaning of section 13, art. 1 of the Constitution [requiring speedy trials] *** The trial ended with the announcement of the verdict of the jury, whereby it declared the result of its deliberations upon issues of fact which had been submitted to it for its decision."
We agree with the California court, and, in any event, the facts and circumstances of this case [***10]  disclose no undue or unnecessary delay in processing the appellant's motion for a new trial.
Judgment affirmed.  

87 of 138 DOCUMENTS 

STREAMS v. STATE 

No. 237, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 278; 208 A.2d 614; 1965 Md. LEXIS 653 

April 5, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments reversed and cases remanded for new trials, costs to be paid by the mayor and city council of Baltimore. 

HEADNOTES:

Criminal Law -- Confessions -- Voluntariness Of, Not Established Here -- State Failed To Refute Appellant's Claim Of Threats And Promises And To Show Conduct Of Arresting Officers While Appellant Was In Their Custody.  It was held in the instant criminal case that the State did not meet its burden of establishing the voluntariness of appellant's confessions as a prerequisite to their admission in evidence.  The Court stated that the police officer's testimony that during all of the interrogations he and another officer were the only officers present and that neither he nor anyone in his presence made any threats or promises to get appellant to give any information, and similarly no immunity or inducements were offered or held out to him, might have been enough if there were no later uncontradicted contentions to the contrary, and if appellant had not admittedly been in the custody of other officers who, he said, made statements to him and questioned him.  The Court did not agree with appellant's [***2]  contention that each person who has casual contact with the accused while he is detained by the police or who is present during the interrogations that lead to a confession must testify as to its voluntariness in order for the State to meet its burden.  It may be enough if one credible witness can testify from personal observation that nothing was said or done prior to and during the obtention of the confession to mar or destroy its voluntary character and there was no claim by the prisoner of improper treatment by others than those covered by such testimony.  In the case at bar the Court felt that the State failed in its obligation to show preliminarily that the confessions were voluntary by not calling any of the three officers who arrested appellant and in not calling either of the interrogating officers to refute, if they properly could, appellant's charge of promises as to probation and threats of long sentences. The Court went on to state that the promise to bring appellant home after questioning him, which he said the arresting police told him they would do, might well have led him, in light of his age (18 yrs.) and his apparent lack of mental capacity, to the conclusion that [***3]  the sooner he told the police what they wanted him to tell, the sooner he would be returned to his home.  The State offered no refutation of that promise; neither did it reveal to the court what the arresting officers said or did not say or did or did not do to appellant while he was in their custody. After the appellant testified, the State chose not to refute his claim that he was promised official help in getting probation if he confessed -- which to him could have been fully consistent with and have buttressed the statement he would be taken home after being questioned -- nor did it then choose to specifically deny his claim that one of the interrogating officers threatened him with long sentences if he did not confess.  It was held that the State's failure, after appellant left the stand, to go forward with testimony which would refute his claim of promises and threats and to show the conduct of the police during the period he was in custody of the arresting officers was enough under the circumstances of this case to require a finding that the judgments appealed from must be reversed because the State did not meet its burden of establishing the voluntariness of the confessions.  [***4]  
Criminal Law -- Illegal Arrest Does Not Render Subsequent Confession Inadmissible. 

SYLLABUS:

Frank Streams, Jr., was convicted on five charges of robbery and from the judgments entered thereon, he appeals.  

COUNSEL:
Joseph G. Koutz for appellant.
Robert J. Martineau, 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:
Hammond, Horney, Marbury, Oppenheimer and Barnes, JJ.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*280]   [**614]  The appellant, Streams, seeks to reverse five convictions of robbery by Judge Harlan, sitting without a jury, for which he was sentenced to a total of nineteen years' imprisonment.
He claims on appeal, as he did below, that two confessions the State claims he made should not have been received in evidence because the State did not meet its burden of proving the chain of police custody prior to the making of the confessions and because the confessions were induced by promises and threats.
The prosecution proved the corpus delicti in each case by the testimony of the victim and then implicated [***5]  the appellant solely by his confessions. Sergeant Tabeling, the only police witness, testified that Streams was arrested, without a warrant, at his home just after midnight on Wednesday, February 26, 1964, by Officer Vernon Barclay, taken to Central Police Station and put in a cell, where he remained until eight-forty a.m. when the interrogation began.  It continued with interruptions until after four that afternoon, when Streams gave a confession which was reduced to writing and signed by him.  On Friday, February 28, Streams made another confession, which he also 

 [*281]  signed.  Sergeant Tabeling said he himself did all the interrogating both on Wednesday and Friday, and that there was no mistreatment of Streams, and that he was not in any way threatened or induced in the obtention of the confessions.
Thereafter Streams, testifying as to the confessions, stated the following: that he  [**615]  was eighteen years old, had gone to the eighth grade in school, but could not read and could write only his name; that three police officers came to his home on Tuesday night while he was in bed and informed him they wanted to question him and were going to take him to the station [***6]  house and bring him back after he had answered the questions; and one of the officers questioned him during the drive to the police station.
He then testified that the next morning, and also on Friday, Officer Butler questioned him, as well as Sergeant Tabeling, who was present when Officer Butler did his questioning. Streams says he was told it would be better for him if he made a statement because if he did they would try to get him put on probation. He then says Officer Butler told him if he did not sign a statement "*** he'd throw the book at me, get me more time, that's all."
Neither Officer Butler nor Officer Barclay, an arresting officer who was in court, nor any other witness was called in rebuttal by the State.
We think the State did not meet its burden of showing that the confessions were freely and voluntarily made and were not products of promises or threats.  Sergeant Tabeling's testimony that during all of the interrogations he and Officer Butler were the only officers present and that neither he nor anyone in his presence made any threats or promises to get Streams to give any information, and similarly no immunity or inducements were offered or held out to him,  [***7]  might have been enough if there were no later uncontradicted contentions to the contrary, and if Streams had not admittedly been in the custody of other officers who, he says, made statements to him and questioned him.  We do not agree with the appellant's contention that each person who has casual contact with the accused while he is detained by the police or who is present during the interrogations 

 [*282]  that lead to a confession must testify as to its voluntariness in order for the State to meet its burden.  Bagley v. State, 232 Md. 86; Glaros v. State, 223 Md. 272; Glover v. State, 202 Md. 522; Cooper v. State, 205 Md. 162; Jackson v. State, 209 Md. 390. It may be enough if one credible witness can testify from personal observation that nothing was said or done prior to and during the obtention of the confession to mar or destroy its voluntary character and there is no claim by the prisoner of improper treatment by others than those covered by such testimony.  As was pointed out in Bagley (p. 93-94 of 232 Md.):

"It was said in Jackson v. State, 209 Md. 390, 121 A. 2d 242 (1956), that in practice the State almost invariably undertakes [***8]  to prove the free and voluntary character of a confession by calling 'all persons who had the prisoner in charge,' but that is not to say that the statement should be accepted as having established a mandatory rule which must be followed in every case."
In the case at bar we think the State failed in its obligation to show preliminarily that the confessions were voluntary by not calling any of the three officers who arrested Streams and in not calling either Sergeant Tabeling or Officer Butler to refute, if they properly could, Streams' charge of promises as to probation and threats of long sentences. Mercer v. State, 237 Md. 479.
The promise to bring Streams home after questioning him, which he says the arresting police told him they would do, might well have led him, in light of his age and his apparent lack of mental capacity, to the conclusion that the sooner he told the police what they wanted him to tell, the sooner he would be returned to his home.  The State offered no refutation of that promise; neither did it reveal to the court what the arresting officers said or did not say or do or not do to Streams while he was in their custody.
After Streams testified,  [***9]  the State chose not to refute his claim that he was promised official help in getting probation if he confessed --  [**616]  which to him could have been fully consistent with and have buttressed the statement he would be taken home 

 [*283]  after being questioned -- nor did it then choose to specifically deny his claim that Officer Butler threatened him with long sentences if he did not confess.
We think the State's failure, after Streams left the stand, to go forward with testimony which would refute his claim of promises and threats and to show the conduct of the police during the period he was in custody of the arresting officers was enough under the circumstances of this case to require a holding that the judgments appealed from must be reversed because the State did not meet its burden of establishing the voluntariness of the confessions as a prerequisite to their admission in evidence.
The appellant argues secondarily that regardless of voluntariness in fact, the confessions were inadmissible because made while in police custody after an illegal arrest. The record suggests that the arrest was illegal but there is not enough before us on the point to permit a ruling either [***10]  way.  If it be assumed that the arrest was illegal the appellant is not helped.  We have held consistently that the mere fact that a confession is given after an illegal arrest does not make it inadmissible. Dailey v. State, 234 Md. 325, and cases cited; Anderson v. State, 237 Md. 45, 49.
Judgments reversed and cases remanded for new trials, costs to be paid by the mayor and city council of Baltimore.  

88 of 138 DOCUMENTS 

BALTIMORE BUILDING AND CONSTRUCTION TRADES COUNCIL et al. v. MARYLAND PORT AUTHORITY (Three Appeals in One Record) 

No. 167, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 232; 208 A.2d 564; 1965 Md. LEXIS 649; 51 Lab. Cas. (CCH) P19,611 

April 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order reversed, with costs.  

HEADNOTES:

Labor -- Circuit Court Lacked Power To Grant Injunctive Relief Against Labor Unions, Where Federal Law Confided Sole And Exclusive Right And Power In First Instance To National Labor Relations Board Under Circumstances Here -- Protected Or Prohibited Activities Under National Labor Relations Act Reasonably Arguable -- Existence Of Labor Dispute Reasonably Arguable.  In the present case the Maryland Port Authority obtained a preliminary restraining order, later made permanent, from the Circuit Court of Baltimore City which enjoined three unions, appellants here, from carrying on picketing and certain other activities.  It was agreed that the facets of interstate commerce necessary as a basis for federal jurisdiction were present, and that the picketing carried on by the unions was always peaceful.  This Court held that neither the circuit court nor it had power to determine the conflicting claims of the parties to this case, because on the pleadings and the proof it was reasonably arguable whether the conduct of the unions was protected or prohibited by the National Labor [***2]  Relations Act, or not covered by any of its provisions.  A reasonable argument also could be made that a labor dispute was in being when the picketing occurred, and that the unions were in a controversy with the Authority in which it could reasonably be argued that they sought to arrange terms and conditions of employment. Therefore, the Court held that the conflicting contentions of the parties involved determinations of fact, drawing of inferences and applications of law which Congress and the Supreme Court of the United States have confided to the National Labor Relations Board in the first instance, thus depriving the circuit court of the power to make the determination it made as a basis for granting the preliminary restraining order and the permanent injunction against the unions.  

SYLLABUS:

Complaint by the Maryland Port Authority against the Baltimore Building and Construction Trades Council, the Freight Drivers and Helpers Local No. 557 and the Seafarers International Union of North America for a preliminary restraining order and a permanent injunction against certain activities carried on by the unions.  From an order granting a preliminary restraining order, later made permanent,  [***3]  the unions appeal.  

COUNSEL:
Cosimo C. Abato (on both arguments), with whom were Bracken, Abato & Mogowski on the brief, for the Baltimore Building and Construction Trades Council, one of the appellants.
Charles B. Heyman (on both arguments), with whom was Sol C. Berenholtz on the brief, for the Seafarers International Union of North America, another appellant.
Bernard W. Rubenstein (on both arguments), with whom was Jacob J. Edelman on the brief, for the Freight Drivers and Helpers Local No. 557, the other appellant.
William L. Marbury and Franklin G. Allen (on both arguments), with whom were Piper & Marbury on the brief, for the appellee.  

JUDGES:
Hammond, Horney, Marbury, Sybert and Oppenheimer, JJ., and reargued before Prescott, C. J., and Hammond, Horney, Marbury, Sybert and Oppenheimer, JJ., and Powers, J., Associate Judge of the Seventh Judicial Circuit, specially assigned.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*234]   [**565]  Upon application of the Maryland Port Authority, the Circuit Court of Baltimore City issued, ex parte, a preliminary restraining order, which it later made permanent, enjoining, (a)  [***4]  the Baltimore Building and Construction Trades Council from maintaining a picket line or picket boat at the terminals of the Authority for the purpose of inducing the Authority "*** to require any contractor working on construction contracts at the said terminals to pay its employees the prevailing or union wages * * *," and (b) the Freight Drivers and Helpers Local No. 557 and the Seafarers International Union of North America from "*** advising persons attempting to deliver freight to said terminals, or attempting to pick up freight at said terminals, or attempting to dock or undock ships carrying freight or passengers to or from said terminals, that any picketing or patrolling conducted in violation of this order is legitimate."
In their appeal the three Unions contend: (1) that the preliminary restraining order was void ab initio because the provisions of Code (1964 Replacement Volume 8B), Art. 100, Secs. 63-75, dealing generally with injunctions in labor disputes, were not complied with; n1 (2) that both the preliminary order and 

 [*235]  the permanent injunction were void because the court lacked jurisdiction to issue them under Sec. 65 of Art. 100 of Code; (3) that the [***5]  Circuit Court lacked jurisdiction to issue the preliminary order and the permanent injunction because Congress has confided to the National Labor Relations Board sole and exclusive right and power, in the first instance, to deal with the activities enjoined by that court; (4) that the Circuit Court erred in finding an unlawful purpose in the picketing by the Building Trades Council; and (5) that the enjoining orders unconstitutionally deprive the other two Unions of the right of free speech.

n1 These Maryland statutes, sometimes referred to as the State Norris-LaGuardia Act, provide in Sec. 68 (h) for notice of the application for a preliminary restraining order, in Sec. 68 (i) that such an order shall be effective for no longer than five days, in Sec. 68 (j) that no such order shall be issued except upon the filing of a bond, and in Sec. 70 that no such order shall be granted except on the basis of findings of fact.

We are persuaded that the contention of federal preemption of the right and power of the state [***6]  to determine originally the lawfulness of the activities of the Unions complained of by the Port Authority is sound and controlling and, therefore, do not reach the other questions posed.
At the hearing below, the Unions offered no evidence.  The Port Authority, which is an instrumentality of the State of Maryland performing essential governmental functions having as their principal purpose the promotion of commerce, Code (1964 Replacement Volume 5), Art. 62B, Secs. 1  [**566]  and 3 a, produced witnesses who testified to the following facts.
The Authority owns and operates the Dundalk Marine Terminal and the Locust Point Marine Terminal, both on the shore of the Baltimore harbor.  Through these terminals pass general import and export cargo from and to all parts of the world.  As early steps in an extensive program of additions and improvements to its facilities, estimated to cost in total $ 30,000,000, the Authority in December 1963 awarded a contract for modification of the heating system at Locust Point to the J. H. Lawrence Co. (Lawrence), and in April 1964 a contract for construction of a bulkhead and appurtenances, to be built at Dundalk at a cost of $ 3,130,000, to McLean [***7]  Contracting Company (McLean).  In January 1964 the president of the Trades Council told the Deputy Director of 

 [*236]  Engineering and Planning for the Authority that he disagreed with a ruling of the general counsel of the Authority that it could not legally include a prevailing wage clause in its construction contracts, that the lack of such a clause made it difficult for the Union to keep standards in the area at a proper level and that unless the situation was rectified "there may be tie-ups of the port facilities of the Authority." On April 22, 1964, the Attorney General of Maryland issued an opinion which the Authority had asked for, holding that it would be illegal for the Authority to require a prevailing wage clause in its contracts without express legislative authorization.
On the morning of Tuesday, May 12, 1964, pickets acting for the Trades Council appeared at the gates of the Dundalk and Locust Point Terminals. They carried signs headed "Notice to the Public" which, at Dundalk, read: "Employees of McLean Contracting Co. do not receive union wages, benefits and conditions.  -- Baltimore Building and Construction Trades Council" and, at Locust Point, read the same [***8]  except that Lawrence's name appeared instead of McLean's, although no employees of Lawrence then were on the job, the contract having been completed except for details to be later attended to.  The pickets passed out leaflets, also headed "Notice to the Public" which recited, over the signature of the Trades Council, that wages and conditions of employment of employees of McLean or Lawrence, depending on the terminal at which they were distributed, were below those the Union had established and was attempting to establish in the area for similar work, and gave various specific examples.  The handbills then said:
"The sole purpose of patrolling this site is to inform the public that McLean Contracting Co. is not paying the prevailing rate of pay nor providing the prevailing conditions of employment to its employees.
"THIS NOTICE IS ADDRESSED ONLY TO THE PUBLIC.  IT IS NOT ADDRESSED TO ANY EMPLOYER OR TO ANY EMPLOYEES.  We are not attempting to organize employees of McLean Contracting Co. nor are we attempting to obtain recognition or bargaining for them.  Nor is there any 

 [*237]  intent or attempt to induce or encourage any employee of any employer to refuse to work, transport [***9]  or otherwise handle or work on any materials, etc. No one is requested to cease doing business with any person.
"We believe that the public should be familiar with what is going on and that is the sole purpose of the patrolling."
At first the pickets at the gates of the terminal permitted trucks bringing in export freight or coming to pick up imports to pass without protest.  On Wednesday, May 13, they began to turn trucks back by holding up a sign "Call EA 7-3700." Most of the truck drivers would stop, leave their trucks to make a telephone call and then drive away without entering the terminal. On the afternoon of May 13, some one hundred forty trucks drove up to the gate at Locust Point and only about forty crossed  [**567]  the picket line. An employee of the Authority called EA 7-3700 on the morning of May 13, pretending to be a truck driver asking for instructions, and was advised that he had called Freight Drivers and Helpers Local No. 557 and was told to use his own judgment whether to cross the picket line, but that he would be protected in his job if he refused to do so.  He called again in the afternoon and was told not to cross the line.
On Tuesday, May 12, the [***10]  day the picketing began at the terminal gates, the Trades Council stationed a picket boat in the harbor off the Dundalk terminal. On that day the crew -- members of the Seafarers International Union -- of one of two tugs dispatched by their owner, the Curtis Bay Towing Co., to assist in docking the SS Ames Victory at Dundalk, refused to pass the picket boat. The following day the ship was assisted by tugs in leaving the Authority's pier only after the president of the Trades Council withdrew the picket boat because the Ames Victory was carrying military cargo.
On May 13 the SS Argentina, a cruise ship returning from Bermuda -- on which, among many other holiday passengers, was the Governor of Maryland -- had to be diverted from its intended dock at the Dundalk terminal to Pier 1 of the Pennsylvania Railroad Company, with much attendant delay, frustration 

 [*238]  and confusion to the homecoming passengers, because the port agent of the Seafarers Union advised the Curtis Bay Towing Company that his Union considered the picket boat to have established "a legitimate picket line." He said he had so advised the employees of the towing company (who were members of his Union) and that [***11]  good union men would not cross a legitimate picket line.
The preliminary restraining order was issued shortly after noon on May 14 by Judge Barnes, and a hearing was held on May 15, at which the testimony produced by the Authority, summarized above, was received.  Judge Barnes made findings that "*** the purpose of the picket signs and the notice to the public used by the Baltimore Trades Council was to tie up the facilities of the Authority and to force the Authority to insert a prevailing wage clause in its construction contracts, * * *.  Although the 'Notice to the Public' is carefully drawn to indicate that its purpose is to inform the public only, its real purpose was to prevent the use of the Authority's facilities and this purpose was accomplished."
Both sides agree that facets of interstate commerce necessary as a basis for federal jurisdiction are here present, and the picketing both on land and water was always peaceful; but the Authority seizes on the findings of Judge Barnes as demonstrable reasons why the federal labor laws do not control.  It argues first that picketing a state agency to close down its activities in order to influence it to do an act illegal under [***12]  state law is neither a prohibited nor a protected activity under the federal labor laws but is unlawful under state law and, second, that even if the picketing was protected under the National Labor Relations Act, the state court was not deprived of jurisdiction because the picketing was to compel action which was illegal under the law of Maryland.
On the other hand, the Unions say that their activities were either protected under Sec. 7 of the National Labor Relations Act (29 U.S.C. Sec. 157) or prohibited under Sec. 8 of that Act (29 U.S.C. Sec. 158), and if on either premise this is even reasonably arguable, the Supreme Court has held definitely and unmistakably that as part of a national policy Congress has confided the original determination of such questions to the National 

 [*239]  Labor Relations Board to the complete exclusion of state courts or agencies.
We think the Unions are right.  In Garner v. Teamsters, C. & H. Union, 346 U.S. 485, 98 L. Ed. 228 (1953), the union peacefully picketed a trucking company's loading platform in order,  [**568]  the trial court found, to coerce the company into compelling or influencing their employees to join the union.  Drivers [***13]  of other employers refused to cross the picket line and the trucker's business fell off as much as ninety-five per cent.  The Supreme Court of Pennsylvania reversed the injunction which the trial court had issued, on the finding that the picketing was a violation of the labor laws of Pennsylvania, and the Supreme Court of the United States affirmed, holding that the activities complained of by the trucker fell within the exclusive jurisdiction of the National Labor Relations Board and that, therefore, state remedies were precluded.  Justice Jackson, for the Court, pointed out that this was not a case of violence or mass picketing where the state could exercise its historic powers over traditionally local matters of public safety and order and use of streets and highways, n2 and then said (pp. 488-491 of 346 U.S.):

 [*240]  "Congress has taken in hand this particular type of controversy where it affects interstate commerce.  *** It is not necessary or appropriate for us to surmise how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body.  The power and duty of primary decision lies with the Board, not with us.  * *  [***14]  *
"Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties.  It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order.  Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.  *** A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.  The same reasoning which prohibits federal courts from intervening in such cases, except by way of review or an application of the federal  [**569]  Board, precludes state courts from doing so."

n2 The Supreme Court consistently has held that the National Labor Relations Act does not prohibit a state from dealing with violence and its consequences.  United Workers v. Laburnum Corp., 347 U.S. 656, 98 L. Ed. 1025 (1954); Automobile Workers v. Russell, 356 U.S. 634, 2 L. Ed. 2d 1030 (1958); San Diego Bldg.  Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 784-785 (1959); Teamsters Local 20 v. Morton, 377 U.S. 252, 12 L. Ed. 2d 280, 285 (1964). Also see Solo Cup v. Int'l Brotherhood, 237 Md. 143 (1964).
State courts also have jurisdiction to enjoin an "agency shop" clause as illegal under a state right to work law.  Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 11 L. Ed. 2d 179 (1963). There the Supreme Court said Congress could preempt as much or as little of the interstate field as it chose and under Sec. 14 (b) of the Labor Relations Act, Congress left the states free to enact laws prohibiting agency shops and "*** we can only assume that it intended to leave unaffected the power to enforce such laws." It added that this holding was not "*** at war with San Diego Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773, decided in 1959, and holding that where action is 'arguably subject to Sec. 7 or Sec. 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board.'" See also Smith v. Evening News Asso., 371 U.S. 195, 9 L. Ed. 2d 246 (1962), for a similar holding that Sec. 301 of the Taft-Hartley Act (29 U.S.C. Sec. 185 (a)) gives the states concurrent jurisdiction over an unfair labor practice which also violates a collective bargaining agreement and that this holding is not at war with Garmon.

 [***15]  
In Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 99 L. Ed. 546 (1955), a labor union picketed an employer's plant to compel him to add to a contemplated collective labor agreement 

 [*241]  a clause obligating him to employ, for the repair or replacement of machinery, only contractors who had collective agreements with the union.  The employer filed a charge of unfair labor practice under Sec. 8 (b) (4) (D) of the Labor Management Relations Act.  The Board refused to act, holding that the section invoked had not been violated.  While the charge was pending before the Board, the employer sought an injunction in a Missouri state court which later issued it.  More than a year after the Board had refused to act, the Supreme Court of Missouri affirmed on the ground that the union's activities violated the state's restraint of trade act, treating the Board's ruling as a determination that there was no basis for a charge of unfair labor practice under the Labor Management Relations Act.  The Supreme Court of the United States held that the state court's jurisdiction to enjoin the union's conduct was preempted by the federal labor laws.  The Court held that the determination of the Board [***16]  that Sec. 8 (b) (4) (D) did not apply, did not necessarily mean also that subsections (A) or (B) of Sec. 8 (b) (4) had or had not been violated.  It said (pp. 478 and 479 of 348 U.S.):

"The point is rather that the Board, and not the state court, is empowerd to pass upon such issues in the first instance. ***
"Nor is it within our competence now to determine whether the conduct in controversy is subject to the authority of Subsections (A) or (B).  Under the Board's decisions, for example, it may become pertinent whether this is eventually deemed primary pressure, directed at respondent to force insertion of the disputed clause in its contract with the IAM, rather than secondary pressure, aimed at subcontractors to force them to use IAM labor.  We are not now ruling on that distinction.  However, the point is pertinent to our discussion, because even if it were clear that no unfair labor practices were involved, it would not necessarily follow that the State was free to issue its injunction. If this conduct does not fall within the prohibitions of §  8 of the Taft-Hartley Act, it may 

 [*242]  fall within the protection of §  7, as concerted activity for the  [***17]   purpose of mutual aid or protection." (Emphasis supplied)

The Supreme Court went on to deal with the argument of the employer that Garner did not control because there the State and Congress both were attempting to regulate labor relations as such, while in Weber Missouri was not prohibiting labor's conduct for any reason having to do with labor relations but, rather, because that conduct contravened a state law which dealt generally with restraint of trade.  This argument was disposed of on the assumption that the union's activities were prohibited by saying (p. 479 of 348 U.S.): "We do not think this distinction is decisive." On the assumption that the union's conduct was protected, the Court said (pp. 480 and 481 of 348 U.S.):
"Moreover, we must not forget that this case is not clearly one of 'unfair labor practices.' Certainly if the conduct is eventually found by the National Labor Relations Board to be protected by the Taft-Hartley Act, the State cannot be heard to say that it is enjoining that conduct for reasons other than those having to do with labor relations. *** Regarding the conduct here in controversy, Congress has sufficiently expressed [***18]  its purpose to bring it within federal oversight and to exclude state prohibition, even though that with which the federal law is concerned as a matter of labor relations be related by the State to the more inclusive area of restraint of trade."
 [**570]  The Supreme Court pulled together and precisely restated the effect of its earlier holdings in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775 (1959). There the trial court found as facts the following: (1) the unions sought from the Garmons (three members of the family were respondents) an agreement to continue to employ only those workers who were already members of the unions or who applied for membership within thirty days; (2) the Garmons refused, claiming that none of their employees appeared to desire 

 [*243]  to join a union and, in any event, as a prerequisite, one of the unions must be designated as a collective bargaining agent; (3) the union began immediately to peacefully picket the Garmons' place of business and to exert pressure on customers and suppliers in order to persuade them to stop dealing with the Garmons; and (4) "The sole purpose of these pressures was to compel execution  [***19]   of the proposed contract." (P. 237 of 359 U.S., emphasis supplied)
The unions had contested these findings, claiming that their only purpose in picketing was to educate the workers and persuade them to become members.  The trial court enjoined the unions from picketing and applying other pressures until one of them had been properly designated as bargaining agent, and awarded the Garmons $ 1,000 as damages.  The California Supreme Court affirmed.  The Supreme Court of the United States granted certiorari and remanded the case, 351 U.S. 923, 100 L. Ed. 1453 (1956), deciding that federal preemption prevented the state injunction but leaving open the matter of damages under California law.  On remand, the Supreme Court of California sustained the award as damages for a tort.  Certiorari was again granted and the Supreme Court reversed, saying (at p. 246 of 359 U.S.):
"Since the National Labor Relations Board has not adjudicated the status of the conduct for which the State of California seeks to give a remedy in damages, and since such activity is arguably within the compass of §  7 or §  8 of the Act, the State's jurisdiction is displaced."
The opinion previously had quoted [***20]  much of what was quoted above from Garner and, in addition, said (pp. 244-246 of 359 U.S.):
"When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by §  7 of the National Labor Relations Act, or constitute an unfair labor practice under §  8, due regard for the federal enactment requires that state jurisdiction must yield.  ***

 [*244]  "At times it has not been clear whether the particular activity regulated by the States was governed by §  7 or §  8 or was, perhaps, outside both these sections.  But courts are not primary tribunals to adjudicate such issues.  It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.  What is outside the scope of this Court's authority cannot remain within a State's power and state jurisdiction too must yield to the exclusive primary competence of the Board.  *** In the absence of the Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are [***21]  subject to state jurisdiction."
The Supreme Court has continued to follow faithfully the path it charted in the cases we have discussed.
Marine Engineers Ben. Asso. v. Interlake S. S. Co., 370 U.S. 173, 8 L. Ed. 2d 418 (1962), dealt with a situation in which the Supreme Court of Minnesota found that a lower Minnesota court had not erred in enjoining, as violative of  [**571]  state law, peaceful picketing against a vessel of a steamship company, the employees of which were unorganized, since it found the parent union and its local not to be (p. 174 of 370 U.S.):

"*** 'labor organizations' within the meaning of §  8 (b) of the Labor Management Relations Act, 29 U. S. C. §  158 (b), and therefore not subject to the unfair labor practice provisions of that section of the statute."

All members of the unions performed supervisory functions only and the findings of the state courts would appear to have been fully justified.  The injunction forbad the inducing of employees of others and other companies from performing services for the steamship company and from interfering with its operation.  The Supreme Court reversed, saying that the state courts 

 [*245]   [***22]  were not free to make the finding that the federal act did not apply (p. 178 of 370 U.S.):
"We see no reason to assume that the task of interpreting and applying the statutory definition of a 'labor organization' does not call for the same adjudicatory expertise that the Board must bring to bear when it determines the applicability of § §  7 and 8 of the Act to substantive conduct."

The Court concluded that "*** the only workable way to assure this result is for the courts to concede that a union is a 'labor organization' for §  8 (b) purposes whenever a reasonably arguable case is made to that effect."
In Local No. 438 v. Curry, 371 U.S. 542, 9 L. Ed. 2d 514 (1963), the Supreme Court reversed the highest court of Georgia (holding the Georgia courts had no jurisdiction) which had approved an injunction against union activity that violated the State's right to work law and also was at least arguably violative of Sec. 8 (b) of the National Labor Relations Act. The facts were that there was peaceful picketing of Curry, a non-union contractor who had a prevailing wage construction contract with the City of Atlanta, to force him, on his version, to hire only union labor [***23]  or to persuade him, on the union's version, to raise his pay scale to those prevailing in the area.  The picketing had followed unsuccessful efforts by the union to have the City of Atlanta persuade Curry to pay higher wages.
See also Liner v. Jafco, Inc., 375 U.S. 301, 11 L. Ed. 2d 347 (1964), which is another reversal of a state court's action in enjoining peaceful picketing which sought to harass a general contractor who used non-union labor.  At pp. 309 and 310 of 375 U.S. the Court said:
"Whether or not the facts showed a 'labor dispute' within the meaning of 29 U. S. C. §  152 (9) n6 is 

 [*246]  certainly at least arguable. Consequently, as we said in Curry, 'the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board.'"

n6 "The term 'labor dispute' includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee."

 [***24]  
Another case is Hattiesburg Bldg. and Trades Council v. Broome, 377 U.S. 126, 12 L. Ed. 2d 172 (1964), which reversed per curiam the Supreme Court of Mississippi which had approved the enjoining of peaceful picketing of an oil refinery by a labor organization to compel it to require a non-union industrial maintenance firm which did work at the refinery to sign an exclusive hiring-hall agreement with the labor organization.
The Port Authority finds solace and strength for its position, as did Judge Barnes below, in cases such as International  [**572]  Longshoremen's Ass'n v. Georgia Ports Authority, 124 S. E. 2d 733 (Ga. 1962), cert. den. 370 U.S. 922, 8 L. Ed. 2d 503 (1962), in which the court ruled as had the Board in New Bedford Steamship Authority, 127 N.L.R.B. 1322, 46 L.R.R.M. 1173 (1960), and New Jersey Turnpike Authority, 33 L.R.R.M. 1528, Case No. 4, R. C. 2245 (1954).  See also So. Atl. Longshoremen v. Harris County Nav. Dist. (Ct. of Civ. App. of Texas, 1962), 358 S. W. 2d 658, cert. den. 372 U.S. 975, 10 L. Ed. 2d 142 (1963); International Brotherhood v. Grand River Dam Auth., 292 P. 2d 1018 (Okla., 1956); and City of Alcoa  [***25]   v. International Broth. of Elec. Wkrs., 308 S. W. 2d 476 (Tenn., 1957).
These cases, unlike the case at bar, involved disputes or relationships between the employing governmental entity or agency and its own immediate employees.  The National Labor Relations Act defines "employer" in Sec. 2 (2) (29 U.S.C. Sec. 152 (2)) and "employee" in Sec. 2 (3) (29 U.S.C. Sec. 152 (3)).  Specifically excluded from the category of employers are, among others, "any State or political subdivision thereof," and "any person subject to the Railway Labor Act," and from the 

 [*247]  category of employees are excluded inter alia, "*** any individual employed by an employer subject to the Railway Labor Act *** or by any other person who is not an employer as herein defined."
Because of these exclusions in the federal act, the cases, such as the Georgia Ports Authority case, have held that in instances involving the general employer-employee interrelationships of states and their subdivisions on the one hand and their servants on the other, the state courts and not the National Labor Relations Board have jurisdiction.
The Supreme Court has made it plain, however, that except in instances of [***26]  labor disputes or differences between state governmental entities and their servants such entities are "persons" which, to the same extent as other non-excluded persons, are fully within the penumbra, and subject to the protection and prohibitions of the federal labor laws.
The holding to this effect was foreshadowed by Local Union No. 25 v. New York, N. H. & H. R. Co., 350 U.S. 155, 100 L. Ed. 166 (1956), which held that a railroad could seek relief before the National Labor Relations Board, although railroads like political subdivisions, are expressly excluded from the definition of the term "employer" in the federal act.  The opinion pointed out that "the N.L.R.B. is empowered to issue complaints whenever 'it is charged' that any person subject to the Act is engaged in any proscribed unfair labor practice," and that Board regulations allow such a charge to be filed by "any person," as defined in Sec. 2 (1) of the Act, (29 U.S.C. Sec. 152 (1)).  The Court concluded that "*** since railroads are not excluded from the Act's definition of 'person', they are entitled to Board protection from the kind of unfair labor practice proscribed by Sec. 8 (b) (4) (A)," reasoning that this [***27]  result would best effectuate congressional policies of uniform control over labor abuses and protection of the parties injured by such practices.
The holding as to states and their political subdivisions was spelled out explicitly in Plumbers, etc., 298 v. County of Door, 359 U.S. 354, 3 L. Ed. 2d 872 (1959). There the County of Door, a Wisconsin municipal corporation, was endeavoring to have constructed an addition to its courthouse by one Oudenhoven, 

 [*248]  with whom it had a general contract.  There were eight subcontracts, one, for the plumbing, with one Zahn who customarily employed non-union labor.  The Plumbers union, disturbed by this, attempted to induce Zahn to sign a union agreement.  After he refused, a picket was assigned to walk around the courthouse carrying a sign which set forth that non-union workers were employed on the project.  This peaceful picketing effectively  [**573]  stopped all work.  Door County, Zahn and Oudenhoven sought an injunction in the local circuit court.  The Wisconsin Supreme Court affirmed the issuance of an injunction by the circuit court on the premise that the National Labor Relations Board did not have jurisdiction because Door [***28]  County, a state subdivision, was among those seeking relief and therefore jurisdiction of the state was not preempted.
The Supreme Court of the United States disagreed, saying there could be no doubt that if Door County were not a party, state courts would have no power over the dispute.  The County and its co-plaintiffs alleged an attempt to force Zahn and the County to stop doing business with each other or, alternatively, to coerce Zahn into becoming solely a union employer.  The Court said (pp. 356 and 357 of 359 U.S.):

"Both of these allegations, if proved, would constitute unfair labor practices under §  8 (b) (4) of the National Labor Relations Act. If the charges are not proved the conduct might well be 'protected' under §  7 of the Labor Act. In either case this Court has held that the determination must be made by the N. L. R. B. and that 'state [courts] must decline jurisdiction in deference to the tribunal which Congress has selected * * *.'"

Justice Black, for the Court, continued (pp. 357-359 of 359 U.S.):
"It is claimed, however, that the presence of Door County somehow deprives the Board of jurisdiction and reestablishes state power.  This contention [***29]  is based on the fact that political subdivisions are expressly excluded from the definition of 'employer' in the Labor 

 [*249]  Relations Act and therefore are not subject to many of its provisions.  *** In Local 25 * * *, we decided that a railroad could seek relief before the Board although railroads, like political subdivisions, are expressly excluded from the term 'employer' in the Act.  ***
"The position of a county and a railroad would seem to be identical under the Act, and the policy considerations which guided us in Local 25, like the statutory language there construed, would seem to apply equally here.  *** And Board jurisdiction to grant relief, far from interfering with county functions, serves to safeguard the interests of such political subdivisions.  ***
"We do not, of course, attempt to decide whether the Union's conduct in this dispute violates §  8 (b) (4), is protected by §  7, or is covered by neither provision of the Labor Act. Those are questions for the Board to determine in a proper proceeding brought before it."
We are persuaded that neither the Circuit Court nor we have power to determine the conflicting claims of the Port Authority [***30]  and the Unions.  We do not decide or attempt to decide whether Judge Barnes was right or wrong in his decision that the conduct of the Unions that he enjoined was outside the scope of the National Labor Relations Act, only that he had no power at all to make the determination, because on the pleadings and the proof it was reasonably arguable whether the conduct of the Unions was protected or prohibited by the federal Labor Act, or not covered by any of its provisions.  Certainly, to use the language of the second Garmon case, referred to earlier (p. 246 of 359 U.S.), there is not here any "compelling precedent applied to essentially undisputed facts" which would permit a state court to determine that it and not the Labor Board had initial jurisdiction.  Rather, as the cases which have been cited show, the precedents seem to be the other way.
As we see it, a reasonable argument can be made that a labor dispute was in being when the Unions picketed at the terminals 

 [*250]   [**574]  of the Authority.  The federal Labor Act in Sec. 2 (9) (29 U.S.C. Sec. 152 (9)) defines a "labor dispute" to include "*** any controversy concerning terms, tenure or conditions of employment,  [***31]  *** or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee."
Here the Unions were in a controversy with the Port Authority in which it can reasonably be argued they sought to arrange terms and conditions of employment. In Liner v. Jafco, supra, in which the union's objectives were similar, the Supreme Court, referring to the statutory definition of a labor dispute, said as we noted earlier: "Whether or not the facts showed a 'labor dispute' within the meaning of 29 U.S.C. Sec. 152 (9) is certainly at least arguable. Cf. N. L. R. B. v. International Longshoremen's Asso., 332 F. 2d 992 (4th Cir. 1964).
Section 7 of the Labor Act (29 U.S.C. Sec. 157), among other rights, insures to employees "*** the right *** to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *." The Unions make the claim, which cannot be dismissed as completely frivolous, that their activities are protected by this provision of the federal labor law rather than being prohibited as unfair labor practices by Sec. 8 (b) (4) (B).  That section [***32]  makes it an unfair labor practice for a labor organization or its agents:
"(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is *** (B) forcing or requiring any person to cease using, *** handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees * * *."

By an amendment made in 1959 Congress added the following to the section: "Provided, That nothing contained in this clause 

 [*251]  (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *."
Because it does not want the federal law to apply and govern, the Port Authority contends that Sec. 8 (b) (4) (B), the so-called secondary boycott provision, is not apposite because here the picketing was primary and direct against it and was not against [***33]  Lawrence or McLean with whom the Unions had no dispute.  Although the Unions' leaflets referred to Lawrence and McLean and said in terms that there was no intent to or attempt to induce or encourage any employee or any employer "to refuse to work, transport or otherwise handle or work on any materials, etc." and also said "no one is requested to cease doing business with any person," the Unions now argue that Sec. 8 (b) (4) (B) may well apply.  We have not been referred to or found any compelling precedent which would permit us to say with certainty that the Unions are wrong in this contention and so permit the State to exercise jurisdiction to determine the answer in the first instance.
The question of whether in a given case union activities are, under the federal labor law, prohibited secondary activities or protected primary activities, or neither, is often a complex one extremely difficult to answer accurately and precisely.  The task has not seemingly been made easier by the 1959 amendments to Sec. 8 (b) (4) (B) (apparently made by Congress in approval of the decisions of the Supreme Court) which, for the first time made certain union activities unfair, changed the words "employer"  [***34]  and "employee" to "person," and added the proviso as to primary strikes and picketing.
 [**575]  The complexity of distinguishing between unlawful secondary and protected primary activity is well illustrated by the case of Carrier Corporation v. N. L. R. B., 311 F. 2d 135 (2d Cir. 1962). The Board had dismissed Carrier's charge that the unions which were in dispute with it had violated Sec. 8 (b) (4) (B) by picketing a gate which was on the property of a railroad near Carrier's plant, through which trains went to and from the plant.  Judge Waterman wrote a thoughtful, exhaustive and soundly analytical opinion which found the Board wrong, essentially because the hearts of the pickets were not pure, in that they manifestly sought by their presence to prevent the railroad 

 [*252]  from handling Carrier's goods.  Judge Lumbard dissented in another thoughtful opinion.  On motion for reargument before nine Judges, six voted to deny and three to grant.  The case went to the Supreme Court under the name of United Steelworkers v. N. L. R. B., 376 U.S. 492, 11 L. Ed. 2d 863 (1964), and the Court reversed, and reinstated the order of the Board, holding that although the picketing [***35]  complained of was literally within the proscriptions of a secondary boycott by Sec. 8 (b) (4) (B), it nevertheless was protected by the proviso in subsection (B) that nothing therein shall be construed to make unlawful, where not otherwise unlawful, "any primary strike or primary picketing."
We think the conflicting contentions of the Authority and the Unions involve determinations of fact, the drawing of inferences and the applications of law which Congress and the Supreme Court have said the National Labor Relations Board must do in the first instance. The Circuit Court, having been deprived of power to make the determination it made, as a basis for the granting of the preliminary restraining order and the permanent injunction, erred in restraining the conduct of the Unions.
The further supplementary contention of the Authority, that even if the Unions' activities violated the federal Labor Relations Act, the purposes of the Unions, to require the Authority to violate the law of Maryland, permitted the courts of Maryland to issue an injunction, seems foreclosed by the holdings of the Supreme Court.  See the second Garmon case, the Weber-Anheuser Busch case and the Curry [***36]  case, and compare the United Steelworkers case, all discussed earlier.
Order reversed, with costs.  

89 of 138 DOCUMENTS 

UPHAM v. UPHAM 

No. 243, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 261; 208 A.2d 611; 1965 Md. LEXIS 651 

April 2, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed May 3, 1965, Denied May 4, 1965.  

PRIOR HISTORY:
Appeal from the Circuit Court No. 2 of Baltimore City; Cardin, J.  

DISPOSITION:
Order affirmed; appellant to pay the costs.  

HEADNOTES:

Divorce -- Wife's Bill For A Mensa Divorce Dismissed -- Full Faith And Credit Given To Pennsylvania A Vinculo Decree -- Court, Assuming Without Deciding That Foreign Decree Was Subject To Attack By Wife, Held That Facts Showed Husband Had Established Pennsylvania Residence With Domiciliary Intent As Of Time Fixed By Statute Of That State For Commencing Divorce Proceedings.
Alimony -- Wife's Prayer For Permanent Alimony, Notwithstanding Validity Of Foreign Decree, And Claim That Denial Of Support Was Deprivation Of Property Without Due Process Of Law, Rejected -- After Dissolution Of Marital Relationship, By Maryland Or Foreign Decree, Maryland Courts Are Precluded From Awarding Alimony.
Divorce -- Husband Required To Pay Counsel Fees For Services Rendered To Wife Prior To Entry Of Valid Pennsylvania A Vinculo Decree.  

SYLLABUS:

Suit by Elizabeth M. Upham against Charles M. Upham for divorce a mensa.  From an order dismissing the wife's bill with prejudice and directing the husband [***2]  to pay costs and counsel fees for services rendered prior to the entry of a foreign a vinculo decree, the wife appeals.  

COUNSEL:
Harry Goldman, Jr., with whom was Harold C. Vanderlain on the brief, for appellant.
Moses Davis for appellee.  

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

OPINIONBY:
HORNEY 

OPINION:

 [*262]   [**612]  The appeal in this suit for a divorce a mensa brought in a Maryland court by a wife residing in Maryland against a husband residing in Pennsylvania presents questions as to whether a Pennsylvania a vinculo divorce decree is entitled to full faith and credit in Maryland and, if so, whether the wife is entitled to permanent alimony notwithstanding the validity of the Pennsylvania decree. The basic question to be decided is whether the husband had acquired a bona fide domicile in Pennsylvania at the time he brought suit for a divorce in that state.
The husband (Charles M. Upham, Jr.) and the wife (Elizabeth M. Upham) resided together in Maryland for many years in a home they owned as tenants by the entireties.  As a result of a change in his employers but not in his employment [***3]  as a traffic engineer, the husband moved to Pennsylvania on November 6, 1961, and established a residence in York.  The wife remained in Maryland and still resides in Baltimore City.
In York, the husband rented a furnished apartment on a month to month basis and lived there until he and his present 

 [*263]  wife moved to the house they now occupy under a written lease.  While he has continued to be president of a Maryland flying club and has never transferred his membership in the Masonic Lodge from Baltimore to York, he has joined other organizations in York, and has registered there as a voter.  He visits the farm of his father in Charles County frequently and has expressed a desire to return to Maryland sometime in the future.  But he has continued to reside in York ever since he moved there and declares he intends to stay as long as he retains his present job or until he finds something better.
Eight months after the husband moved to York, the wife, seeking alimony, filed suit for a partial divorce, but did not go forward with the action until after the expiration of an order for payment of alimony pendente lite in July 1963.
A year and a day after he had moved to York [***4]  -- the residence requirement in Pennsylvania is one year -- the husband filed suit for an absolute divorce in the Court of Common Pleas of York County.  The bill of complaint was served on the wife by certified mail but she neither appeared nor answered at that time.  Within a month after the granting of the divorce, however, the wife filed a petition to open the divorce decree, and the husband moved to strike the petition.  The Court of Common Pleas dismissed both the petition to open and the motion to strike and the wife appealed.  The Superior Court of Pennsylvania, by a per curiam order, "affirmed" the lower court.  See Upham v. Upham, 203 A. 2d 495 (Pa. Super. 1964).
Sometime after the middle of September 1963 -- apparently after the dismissal of the petition to open the divorce decree but before the order therefor was affirmed -- the wife petitioned the lower court in Maryland for further payments of alimony pendente lite and for counsel fees.  The lower court (Cardin, J.) heard the petition in open court, and following arguments of counsel and the submission of memorandums, found that the husband was a "bona fide resident of the State of Pennsylvania on May [***5]  21, 1963 when a valid decree of absolute divorce was passed" by the Pensylvania court and, in subsequent orders, dismissed the wife's bill for divorce a mensa with prejudice and directed the husband to pay the costs and counsel fees for services rendered prior to the entry of the Pennsylvania divorce decree.

 [*264]  Section 1 of Article IV of the Constitution of the United States requires that full faith and credit be given in every state to the divorce proceedings of every  [**613]  other state if such other state had jurisdiction over the parties to the proceedings.  Sherrer v. Sherrer, 334 U.S. 343 (1948); Coe v. Coe, 334 U.S. 378 (1948); Day v. Day, 237 Md. 229, 205 A. 2d 798 (1965). Where, however, there is proof that the spouse who obtains a foreign divorce did not acquire a bona fide domicile in the divorce-granting state, and the other spouse had no opportunity to contest an issue as to jursidiction, the giving of full faith and credit is not mandatory.  Pelle v. Pelle, 229 Md. 160, 182 A. 2d 37 (1962); Slansky v. State, 192 Md. 94, 63 A. 2d 599 (1949). But when it is shown that the other spouse has participated in a divorce proceeding in [***6]  a state other than his or her own, such spouse will have forfeited his or her right to impeach the validity of the decree of such other state in the courts of which he or she is a resident. Sherrer v. Sherrer, supra; Coe v. Coe, supra; Pelle v. Pelle, supra.
If we assume, without deciding, in the case at bar that the Pennsylvania decree was subject to attack by the wife, we think the finding of the chancellor that the husband was a bona fide resident of Pennsylvania was proper.  While the chancellor was in error as to the time requirement in that he stated that the husband was a resident as of the time of the granting of the decree when he should have said that he was a resident as of the time the bill of complaint was filed, the facts on the whole, as disclosed by the record, show that the husband had established his Pennsylvania "residence with domiciliary intent," DiMilia v. DiMilia, 203 A. 2d 382 (Pa. Super. 1964), as of the time fixed by the Pennsylvania statute n1 for commencing divorce proceedings, and we so hold.

n1 The Pennsylvania Divorce Code, Purdon's Statutes Annotated, Title 23, §  16, provides that "no spouse shall be entitled to commence proceedings for divorce *** who shall not have been a bona fide resident in [the] Commonwealth at least one whole year immediately previous to the filing of his or her petition."

 [***7]  
As a corollary to her claim that she is entitled to permanent alimony notwithstanding the validity of the Pennsylvania decree, the wife also claims that the denial of support would deprive 

 [*265]  her of property without due process of law.  Both claims are without merit.
The rule in Maryland is that after the dissolution of the marital relationship, whether by the decree of this or another state, the courts of this State are precluded from awarding alimony. Brewster v. Brewster, 204 Md. 501, 105 A. 2d 232 (1954). And there is nothing in Clayton v. Clayton, 231 Md. 74, 188 A. 2d 550 (1963) or in Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957) to compel a contrary result.  In Clayton, it was held that an award of alimony is permissible even though a divorce is granted on a ground that made the marriage a nullity.  Such was not the case here.  In Vanderbilt, the right to support was upheld under a New York statute providing in effect that such right could not be affected by a foreign ex parte decree. There is no such statute in this State.  That the right to maintain a proceeding for alimony ends with the dissolution of the marriage, see Staub v. Staub [***8]  , 170 Md. 202, 183 Atl. 605 (1936).
The final question, one raised by the husband, is whether the court erred in directing payment for counsel fees for services rendered prior to the entry of the Pennsylvania divorce decree. We find no error.  Tome v. Tome, 180 Md. 31, 22 A. 2d 549 (1941). Had the court awarded counsel fees for services rendered after the marriage was terminated, a different question would have been presented.  Brewster v. Brewster, supra; Tabeling v. Tabeling, 157 Md. 429, 146 Atl. 389 (1929).
Order affirmed; appellant to pay the costs.  

90 of 138 DOCUMENTS 

SCOTT v. STATE 

No. 244, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 265; 208 A.2d 575; 1965 Md. LEXIS 652 

April 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order affirmed.  

HEADNOTES:

Probation -- Revocation Of -- Nature Of The Proceedings -- Notice -- Hearing -- Counsel -- Acquittal Of Probationer On Charge Of Criminal Conduct Did Not Preclude Revocation Of Probation Where Judge Was Reasonably Convinced That Accused Was Guilty Of The Conduct -- No Abuse Of Discretion Here -- Procedural Due Process Held Not Violated.  The appellant in the instant case contended that it was an illegal -- perhaps unconstitutional -- abuse of discretion for the judge below to revoke his probation, on hearsay evidence, which had properly been excluded from the jury in a trial on assault charges, but which had persuaded the judge that he was guilty of conduct of which he had been acquitted. He further contended that the manner in which the probation was revoked violated the requirements of procedural due process.  The Court stated that a proceeding leading to a revocation of suspension of sentence and probation is informal in character and not subject to the limitations and restrictions upon a trial on a charge of crime, which requires proof beyond a reasonable doubt in order to convict.  All [***2]  that is required is that the facts before the judge be such that he reasonably could be satisfied that the conduct of the probationer has not been that which he agreed it would be if he were given liberty.  And in testing the correctness of a revocation of probation, the critical inquiry is whether there was an abuse of discretion below.  Further, the alleged violator is entitled to a reasonable opportunity to refute the charges laid, although not to a formal trial.  And the accused probationer is entitled to be represented by counsel employed by him.  The State need not furnish counsel unless due process would be affronted, in that, for lack of counsel the probationer would be at such a disadvantage that an ingredient of unfairness actively operated in the process that led to the revocation of his probation. Probation is an act of clemency which offers the offender an opportunity to rehabilitate himself without confinement under the tutelage of a probation officer and there may be attached to the opportunity the condition that it may be ended, if the court is reasonably persuaded, by knowledge of facts, even if obtained more informally than the rules of evidence would permit it to [***3]  be obtained in a trial, that it should be.  Although probation is a personal privilege of which the grantee may not be deprived arbitrarily or capriciously, if one charged with breach of probation is given notice of the charges of violation of the conditions and the opportunity to answer or explain the facts which have come to the knowledge of the judge, even though not in the manner required by the rules of evidence, and the facts justify revocation, the act of revocation is not arbitrary or capricious.  It was pointed out by the Court that in the determination of a proper sentence a judge may utilize information obtained outside the courtroom, information furnished by those not subject to cross-examination and sometimes hearsay (provided that information not received from or in the presence of the defendant should be called to his attention so that he has the opportunity to refute, discredit or explain it -- unless under Maryland Rule 761d the court directs otherwise as to a pre-sentence report).  And the Court stated that there is clearly a similarity between the process of determining a proper sentence originally and the process of determining whether to revoke probation and reinstate [***4]  or impose a sentence, and the judge in the latter instance may, with similar safeguards, utilize the ways of acquiring knowledge bearing on the problem that the judge utilizes in determining a proper sentence originally.  These considerations underlie the decisions that hold or indicate that acquittal of a probationer of a charge of criminal conduct which was a violation of probation does not preclude revocation of probation, if the judge passing on the question is with reason satisfied that the probationer actually did that charged in the indictment on which he was acquitted. After reviewing the record in the instant case, the Court held that the judge below was on sound ground in revoking appellant's probation. Although the Court felt that the manner of giving notice to appellant and the timing and conduct of the hearing could have been more in accord with the statutory directions of the Charter provisions as to probation and the revocation thereof (See Sec. 279), and more formal and precise, they found that appellant was given full notice of the reasons which led the judge to contemplate revocation of probation and of the facts which underlay those reasons, that he had the [***5]  advice of counsel and a reasonable opportunity under the circumstances, to refute or explain the charges and that his lawyer did present to the judge the argument that the court had no right, in view of the acquittal, to revoke probation and that it would be an abuse of discretion on the evidence before him to do so.  It was held that this was enough to comply with the fundamental requirements of procedural due process.  

SYLLABUS:

James E. Scott, while on liberty on probation after a conviction of robbery, was tried and acquitted on charges of assault, but, from an order striking out a suspension of sentence for violating the conditions of probation, he appeals.  

COUNSEL:
Russell J. White, with whom was Richard K. Jacobsen on the brief, for appellant.
R. Randolph Victor, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Frank Cannizzaro, Jr., 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:

 [*268]   [**576]   [***6]  Acquitted by a jury of assault with intent to rape and assault, charged to have been committed while he was at liberty on probation after a conviction of robbery, the appellant Scott is aggrieved because the judge who sat in the robbery trial and granted probation, and who also presided at the subsequent jury trial on the assault charges, believed he had committed the assaults and revoked his probation.
 [**577]  On October 30, 1963, Scott pleaded guilty to robbery before Judge Harris.  The admitted facts were that he attacked a woman late at night in a parking lot, striking her in the face with his fist, and seized her handbag.  He was given three years.  On December 23, 1963, Judge Harris, after receiving a probation report that Scott had a sound family and employment background and no prior criminal record, "reluctantly acceded to the recommendation of the Probation Department," suspended the balance of the sentence and placed him on probation for three years, subject to the conditions of probation customarily 

 [*269]  imposed in Baltimore (to which Scott agreed in writing) including the condition that the released person "shall conduct himself in a law-abiding manner."
On [***7]  January 19, 1964, Scott was charged with assault with intent to rape a seventy-one year old woman and common assault upon her.  Passersby came to the assistance of the victim, a Mrs. Grimes, and the assailant, becoming frightened, ran away, leaving his hat at the scene.  Mrs. Grimes gave the hat to the police and after Scott had been arrested near the scene of the assault and taken to the police station, the arresting officer took the hat to Scott's home and, according to his official report, Scott's mother immediately identified it as her son's hat. Several days before the trial, which was held on April 14 and 15, 1964, Scott's lawyer advised the State's Attorney that the mother had recanted and that if called as a State's witness she would testify that she had never seen or identified the hat. Nevertheless, the State called the mother as its witness and attempted to claim surprise and impeach her testimony.  Judge Harris ruled that this could not be done because the State had been put on notice before the trial of the mother's probable testimony.  The State then proffered the testimony of the arresting police officer that he had shown the hat to Scott's mother and that she had [***8]  identified it as her son's.  Judge Harris refused to receive the proffered testimony on the ground that it would be hearsay. The jury acquitted Scott.
Thereafter, Judge Harris advised Scott's court-appointed lawyer, Mr. Russell White (who, upon designation of Judge Harris, has well represented Scott in this appeal), that he felt he must revoke Scott's probation because he was convinced by the facts, as to the identification of the hat, which the State was unable to get before the jury, that Scott had committed the assaults. The lawyer apparently then advised Scott of Judge Harris' views and intended action and, later in the day on which the jury acquitted Scott, he was brought before Judge Harris and the following colloquy took place:
"THE COURT: Mr. White, I have already talked to you concerning the action I am going to take in this case.  Is there anything that you care to say before I give my reasons for ---

 [*270]  "MR. WHITE: Well, I don't know if I really have any standing, your Honor, having completed my services as court appointed attorney I wonder really whether I have any proper standing here at all.
"THE COURT: Well, you have shown a great interest in your assignment [***9]  as counsel for Scott, and said that if I took any further action you would want to be present.  That was the reason why I asked if you cared to say anything.
"MR. WHITE: Well, only what I said at the bench, your Honor, previously" (apparently a reference to the same contention and argument that is now made, that on the evidence before Judge Harris there could not be a revocation of probation for conduct amounting to a crime of which the jury had acquitted the probationer).

Judge Harris then said:

"I will not comment on the verdict of the jury.  But, I do know that there  [**578]  was certain proffered evidence, and important evidence, which the jury did not hear, and which it could not hear under the rules of evidence. I can not help but believe, in my own mind, that regardless of the technical rules of evidence which apparently resulted in the verdict of not guilty, plus the skill of your counsel, that you actually did commit this one act, the assault with which you were charged in two counts, I can not fulfill my obligation to the public by allowing you to go free, having this knowledge in my mind that the jury could not hear,"

and sent Scott back to the [***10]  Maryland Institution for Men to serve the two years and eight months remaining of the three-year sentence which had been imposed on October 30, 1963.
Scott wrote Judge Harris, asking why his probation had been revoked after the jury had acquitted him and, in reply, received an answer which set out in detail what has been set out above, and said:

 [*271]  "I was faced with the situation of having a jury find you legally not guilty of the two assault charges when, based upon information known to me but which could not be made known to the jury, it seemed certain to me that you were Mrs. Grimes' assailant. When I considered the fact that you had committed and had pleaded guilty to a fairly similar violent offense only several months prior to the one which occurred in January of 1964, and the fact that I had information which clearly indicated that you were Mrs. Grimes' assailant, I felt that I could not continue your probation. In my opinion, your actions (as known to me) violated the 'good conduct' condition of your probation; and in fact, I believe you to be a threat to the safety of the public.
"I hope that this letter fully answers your letter to me of April 15, asking [***11]  the reasons why I revoked your probation."

He concluded by advising Scott that he would treat his letter as an order for appeal, and that he had appointed Mr. White as his lawyer.
On the stage of this Court, before the background we have portrayed, Scott relies on these propositions:
1. It was an illegal -- perhaps unconstitutional -- abuse of discretion for Judge Harris to revoke his probation, on hearsay evidence, which had properly been excluded from the jury in the trial on the assault charges, but which had persuaded the judge that he was guilty of conduct of which he had been acquitted;
2. The manner in which the probation was revoked violated the requirements of procedural due process.
We had occasion recently in Edwardsen v. State, 220 Md. 82, to review substantive and procedural facets and requirements of revocation of probation. Judge Henderson, speaking for the Court, said that a proceeding leading to a revocation of suspension of sentence and probation is informal in character and not subject to the limitations and restrictions upon a trial on a charge of crime, which requires proof beyond a reasonable doubt 

 [*272]  in order to convict, citing Jett  [***12]   v. Superintendent, 209 Md. 633, 640; Manning v. United States, 161 F. 2d 827 (5th Cir.), cert. den. 332 U.S. 792, 92 L. Ed. 374; and Mutter, Probation in the Criminal Court of Baltimore City, 17 Md. L. Rev. 309, 316.
Manning, which was relied on in Edwardsen, summed up the law (similar later cases, such as Yates v. United States, 308 F. 2d 737 (10th Cir.), and Broadus v. United States, 317 F. 2d 212 (5th Cir.) have agreed) by saying, in the language of Burns v. United States, 287 U.S. 216, 77 L. Ed. 266, that (at p. 829 of 161 F. 2d):

"*** a proceeding for revocation of probation is not one of formal procedure 'either  [**579]  with respect to notice or specification of charges or a trial upon charges.  The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion.'"

As to the nature of the proof upon which the Court may act, Manning said (p. 829 of 161 F. 2d):

"But proof sufficient to support a criminal conviction is not required to support a judge's discretionary order revoking probation. A judge in [***13]  such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses.  All that is required is that the evidence and the facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation."
Judge Henderson agreed in Edwardsen that the critical inquiry in testing the correctness of a revocation of probation is whether there was an abuse of discretion below, saying (at p. 88 of 220 Md.):

"Swan v. State, 200 Md. 420, 425, was a case involving the striking out of a suspended sentence for violation of the conditions of probation, after hearing.  It was held that an appeal would lie, at least to determine 

 [*273]  whether the trial court abused its discretion or placed an erroneous construction on the conditions of the probation. Abuse of discretion may be found if the trial court acts arbitrarily or capriciously. Burns v. United States, 287 U.S. 216, 222."

See also Coleman v. State, 231 Md. 220, 222.
In considering the requirement of a hearing, we said in Edwardsen (p. 88 of 220 Md.): "In the absence of statute, many [***14]  courts have held it is not even necessary to have a hearing." The foundation for this conclusion may well have been Escoe v. Zerbst, 295 U.S. 490, 79 L. Ed. 1566. There, after holding that, under the applicable federal statute which specified that a probationer accused of violation of the conditions of his probation should "forthwith be taken before the court," a revocation of probation without a judicial hearing was invalid and ineffective, Justice Cardozo, for the Court, said (p. 492-493 of 295 U.S.):
"In thus holding we do not accept the petitioner's contention that the privilege has a basis in the Constitution, apart from any statute.  Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose.  *** But the power of the lawmakers to dispense with notice or a hearing as part of the procedure of probation does not mean that a like dispensing power, in opposition to the will of Congress, has been confided to the courts." n1

 [*274]   [**580]  On the matter of the nature and extent of the hearing, Justice Cardozo then said (p. 493 of 295 U.S.):  [***15]  

"Clearly the end and aim of an appearance before the court must be to enable an accused probationer to explain away the accusation.  The charge against him may have been inspired by rumor or mistake or even downright malice.  He shall have a chance to say his say before the word of his pursuers is received to his undoing.  This does not mean that he may insist upon a trial in any strict or formal sense.  Burns v. United States, supra [287 U.S. 222, 223, 77 L. Ed. 269, 270, 53 S. Ct. 154]. It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper.  [Ibid].  That much is necessary, or so the Congress must have thought, to protect the individual against malice or oppression."

n1 Judge Henderson recognized in the Edwardsen case that in Murray v. Swenson, 196 Md. 222, 229, 231, the Court of Appeals had held, in a case of revocation of a conditional pardon by the Governor, "which may be distinguishable because the legal effect of a pardon is different," that a hearing is required as a matter of due process.  Dicta in Hite v. State, 198 Md. 602, 605, and Swan v. State, 200 Md. 420, reaffirmed the statement in Murray v. Swenson.  Wright v. Herzog, 182 Md. 316, had held that no right to a hearing to a parolee existed under statute or the constitution unless demanded by due process of law and in the absence of any allegation or showing of arbitrary action by the Governor, no constitutional violation existed even if the revocation of parole was done without a hearing.  Murray v. Swenson did not purport to overrule Wright v. Herzog.  Yet as Mutter points out in his article, at p. 319 of 17 Md. L. Rev., the Annotation in 29 A.L.R. 2d 1074 states at p. 1087:
"Notwithstanding the court's explanation, [in Murray v. Swenson] these Maryland cases are conflicting.  The conflict arises from the court's failure to distinguish between 'procedural due process' -- the right to a hearing as a procedural step, -- and 'substantive due process' -- which protects against the arbitrary exercise of a valid power.  The opposite results reached in the two cases were justified by the facts * * *."

At page 1124 the annotation repeats that Herzog and Swenson are, "*** despite the court's attempt to explain the earlier decision, in direct conflict in principle, as a result of the court's failure in the Swenson case to distinguish between 'procedural' and 'substantive' due process."

 [***16]  
This Court went on, in Edwardsen, to consider the provisions of Sec. 279 of the Charter and Public Local Laws of Baltimore City, which authorizes the court to end probation upon written charges, warrant or notice and after a hearing and a finding of violation of the terms of probation and, adopting the 

 [*275]  philosophy of Escoe v. Zerbst, said (p. 89 of 220 Md.): "The alleged violator is entitled to a reasonable opportunity to refute the charges laid, not to a formal trial." Edwardsen also held that an accused probationer is entitled to be represented by counsel employed by him but that the State need not furnish counsel unless due process would be affronted, in that, for lack of counsel the probationer would be at such a disadvantage that an ingredient of unfairness actively operated in the process that led to the revocation of his probation.
We think that Scott has no just cause for complaint that his conditional freedom was ended by Judge Harris.  Probation is a matter of grace, which aside from being an act of clemency extended to one who has committed a crime, is in substance and effect a bargain made by the people, through legislation and the courts, with [***17]  the malefactor that he may be free as long as he conducts himself in a manner consonant with established communal standards and the safety of society.  It offers the young or unhardened offender an opportunity to rehabilitate himself without confinement under the tutelage of a probation officer and there may be attached to the opportunity the condition that it may be ended, if the court is reasonably persuaded, by knowledge of facts, even if obtained more informally than the rules of evidence would permit it to be obtained in a trial, that it should be.  Probation is a personal privilege of which the grantee may not be deprived arbitrarily or capriciously, but if one charged with breach of probation is given notice of the charges of violation of the conditions and the opportunity to answer or explain the facts which have come to the knowledge of the judge, even though not in the manner required by the rules of evidence, and the facts justify revocation, the act of revocation is not arbitrary or capricious.
 [**581]  In the determination of a proper sentence a judge may utilize information obtained outside the courtroom, information furnished by those not subject to cross-examination [***18]  and sometimes hearsay (provided that information not received from or in the presence of the defendant should be called to his attention so that he has the opportunity to refute, discredit or explain it -- unless under Md. Rule 761 d the court directs otherwise as to a pre-sentence report).  See Costello v. State, 237 Md. 464, 

 [*276]  206 A. 2d 812; Driver v. State, 201 Md. 25; Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337; and the annotation Imposing Sentence and Procedural Due Process, 93 L. Ed. 1345, following the Williams case.  There is clearly a similarity between the process of determining a proper sentence originally and the process of determining whether to revoke probation and reinstate or impose a sentence, and the judge in the latter instance may, with similar safeguards, utilize the ways of acquiring knowledge bearing on the problem that the judge utilizes in determining a proper sentence originally.
The facts presented to or coming to the knowledge of the judge, as to the breach of the conditions of probation, need not establish guilt beyond a reasonable doubt as in criminal offenses; all that is required is that the facts before him be such [***19]  that the judge reasonably could be satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty.
These considerations underlie the decisions that hold or indicate that acquittal of a probationer of a charge of criminal conduct which was a violation of probation does not preclude revocation of probation, if the judge passing on the question is with reason satisfied that the probationer actually did that charged in the indictment on which he was acquitted. The decision of the Supreme Court of Appeals of Virginia in Marshall v. Commonwealth, 116 S. E. 2d 270 (1960), flatly so holds on facts quite like those in the case before us.  Also see State v. Greer (N. C.), 92 S. E. 147; People v. Kuduk (App. Ct. Ill.), 51 N. E. 2d 997, appeal dismissed, 57 N. E. 2d 755; Bernal-Zazueta v. United States, 225 F. 2d 64 (9th Cir.) and Note, Legal Aspects of Probation Revocation, 59 Colum. L. R. 311, 332.
In Gonder v. Board of Liquor License Commissioners of Baltimore City, Daily Record, Aug. 28, 1943, a liquor licensee was acquitted in the criminal court of selling liquor to minors.  The Board suspended his license upon being [***20]  satisfied that he had made the sales.  Judge Tucker held that the acquittal was not res judicata and the Board could make the suspension. For a similar ruling, see 29 Op. A. G. 50. It has been held specifically 

 [*277]  that in passing on revocation of probation the latitude of inquiry is such that it is competent and proper for the trial court to consider evidence which would not have been admissible in a trial of the accused for a crime on the issue of violation of the conditions of probation. See Brill v. State (Fla.), 32 So. 2d 607; and Soliz v. State (Ct. Cr. App. Tex.), 350 S. W. 2d 566, where the only proof of violation of probation -- burglary not yet criminally proven -- was the testimony of an accomplice which would be insufficient to convict criminally.  It was held this evidence was sufficient in the probation hearing.  See also Manning v. United States, Yates v. United States, and Broadus v. United States, all supra.
Analogies exist between the opportunity given a probationer to earn his living as an unconfined member of society as long as he does not injure or threaten the legitimate interests of that society and the right given a lawyer or a [***21]  doctor to practice his profession.  It has been generally held that the acquittal of a member of the bar on a charge of crime is not res judicata in a subsequent disciplinary proceeding based on substantially the same charge or conduct.  7 Am. Jur. 2d Attorneys at Law Sec. 57; In re Pennica (N. J.), 177 A. 2d 721; In re Browning (Ill.), 179 N. E. 2d 14.  [**582]  For similar holding as to physicians see 41 Am. Jur. Physicians and Surgeons Sec. 58, pp. 182-183.  The annotation at 123 A.L.R. 779 entitled Effect of Acquittal or Dismissal in Criminal Prosecution to Bar Revocation of License of Physician or Disbarment of Attorney cites many other cases on point as to both physicians and lawyers.
In our view Judge Harris was on sound ground in revoking Scott's probation. At the argument Scott's lawyer told us in so many words that if we so held, Scott did not urge a remand based on procedural defects, insufficiencies or inadequacies of the hearing.  We think that there is no need for such a remand.  While the manner of giving notice to Scott and the timing and conduct of the hearing could have been more in accord with the statutory directions of the Charter provisions [***22]  as to probation and the revocation thereof, and more formal and precise, we find that Scott was given full notice of the reasons which led Judge Harris to contemplate revocation of probation and of the facts which underlay those reasons, that he had the advice of counsel 

 [*278]  and a reasonable opportunity, under the circumstances, to refute or explain the charges and that his lawyer did present to Judge Harris the argument that the court had no right, in view of the acquittal, to revoke probation and that it would be an abuse of discretion on the evidence before him to do so.  Cf. Jett v. Superintendent, supra. This was enough to comply with the fundamental requirements of procedural due process, which is to say, in the words of Justice Cardozo in Escoe v. Zerbst (at p. 493 of 295 U.S.), that Scott had a chance to say his say before the word of his pursuers was received to his undoing and that there was "*** an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper."
Order affirmed.  

91 of 138 DOCUMENTS 

PERKINS v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, LOCAL UNION NO. 7 

No. 208, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 221; 208 A.2d 372; 1965 Md. LEXIS 645 

April 1, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed, with costs.  

HEADNOTES:

Workmen's Compensation -- Claim By Union Business Representative For Back Injury Occuring As He Arose After Doing Desk Work -- Conflicting Evidence As To Cause Of Injury -- Court Held Evidence Was Sufficient To Support Rational Conclusion That Appellant Did Not Sustain Accidental Personal Injury Arising Out Of And In Course Of His Employment -- Court Will Not Determine Comparative Weight Of Conflicting Evidence -- Decision Of Commission Deemed Prima Facie Correct, Burden Of Proof Upon Party Attacking.  

SYLLABUS:

Martin E. Perkins, Sr., appealed to the Superior Court of Baltimore City from an order of the Workmen's Compensation Commission disallowing a claim for compensation against his employer, International Union of Elevator Constructors, Local Union No. 7.  From a judgment affirming the findings of the Commission, plaintiff appeals.  

COUNSEL:
Leonard S. Jacobson, with whom was Preston A. Pairo on the brief, for appellant.
Robert E. Cadigan and Alfred M. Porth for appellee.  

JUDGES:
Hammond, Horney, Marbury, Oppenheimer and Barnes, JJ.  Marbury, J., delivered the [***2]  opinion of the Court.  

OPINIONBY:
MARBURY 

OPINION:

 [*221]   [**372]  This is an appeal from a judgment rendered May 28, 1964, 

 [*222]  by Judge Sodaro in the Superior Court of Baltimore City, sitting without a jury.  He affirmed the findings of the Workmen's Compensation Commission, which on July 26, 1963, passed an order adverse to appellant, Martin E. Perkins, Sr., disallowing his claim for compensation against his employer, International Union of Elevator Constructors, Local Union No. 7, appellee.
Since 1953 until the time when his claim arose, appellant was employed by appellee as its business representative.  He opened the union office at 8 a.m. each morning, normally remained there until 9:30, during which time he received telephone calls from contractors or elevator construction companies who needed men to work on specific construction jobs.  He then would contact the members of the union and assign them to these jobs.  Later, after 9:30, he would proceed to the construction sites to visit the foreman and to see if the men he had assigned to that particular job were working.  Perkins would travel from job to job checking on union members.  Later in the afternoon he would return [***3]  to the union office to receive telephone calls and to do the book work.
On March 29, 1960, the appellant returned to the union office at 2:15 p.m. to work on the records.  After spending some time working on the books at his desk, he alleged that he arose, put his hands on the desk which slipped forward and he fell backward into his chair, experiencing a  [**373]  pain in his back.  He went home and the next day contacted his family physician, Dr. Mueller, who rendered treatment.  On April 8, appellant was admitted to a hospital where he remained for five days and returned to his employment on April 18.  Several weeks after the accident, he completed in part a claim form for accident and health benefits and forwarded this claim to the Travelers Insurance Company.  He also described the occurrence in a claim filed with the Workmen's Compensation Commission.
The appellant first contended that he sustained an accidental personal injury arising out of and in the course of his employment.  He testified that his injury occurred when arising from the chair at his desk and that the desk slipped forward.  However, this version of the accident was contradicted in several material aspects [***4]  casting doubt on the accuracy of his testimony.  Perkins not only admitted that the desk which slipped was "mahogany" 

 [*223]  and "rather large" but also failed to mention anything regarding "slipping" in his claim originally filed with the Commission.  There, the accident was described by him in the following words: "Sitting at desk -- attempted to rise, pushing desk back, strained fifth vertebrae." Moreover, it is significant to note that in section 1 of a claim form completed and signed by appellant which was filed with the Travelers Insurance Company, he indicated that his disability was caused by "arising from chair at 2 P M on March 29-60." Dr. Mueller indicated in section 2 of this claim that the disability did not arise out of the patient's employment.  Furthermore, a surgeon's certificate also completed in part by the appellant and forwarded to Travelers Insurance Company, described the accident as "arising from chair." Dr. Mueller again in that certificate indicated that the injury did not arise out of the patient's employment.
When a claimant has been denied compensation by the Commission, and appeals, on the appeal the decision of the Commission is deemed to be prima [***5]  facie correct and the burden of proof is upon the party attacking it.  Gray v. Dep't of Correction, 230 Md. 508, 187 A. 2d 860; Talley v. Dept. of Correction, 230 Md. 22, 185 A. 2d 352; Krell v. Md. Drydock Co., 184 Md. 428, 41 A. 2d 502. If there is any evidence from which a rational conclusion to support the claim may be drawn the weight and value of that evidence must be left to the trier of the facts, and it is not the function of this Court to determine the comparative weight of conflicting evidence. We hold that there was sufficient evidence to support a rational conclusion that the appellant did not sustain an accidental personal injury arising out of and in the course of his employment.  Bethlehem Steel Co. v. Jones, 222 Md. 54, 158 A. 2d 621.
Having reached the above determination it becomes unnecessary to discuss appellant's contentions that appellee was an employer within the meaning of the Act, and that he was engaged in extra hazardous employment.
Judgment affirmed, with costs.  

92 of 138 DOCUMENTS 

CALLOWAY v. STATE 

No. 220, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 612; 208 A.2d 373; 1965 Md. LEXIS 685 

April 1, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Non-Jury Cases -- Weight Of Evidence And Credibility Of Witnesses Are Matters Primarily For Trial Court To Determine -- Weight Of Evidence Not Reviewable On Appeal -- Evidence Was Sufficient, If Believed, To Convict This Defendant, Had Point Been Raised.  

SYLLABUS:

Joseph E. Calloway was convicted in non-jury cases of three assaults (one with intent to murder), stealing a pistol and carrying it concealed about his person.  From the judgments entered thereon, he appeals.  

COUNSEL:
Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for the appellant.
Fred Oken, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, William J. O'Donnell, State's Attorney for Baltimore City, and Bernard Silbert, Assistant State's Attorney, on the brief, for the appellee.  

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

OPINIONBY:
PER CURIAM 

OPINION:

 [*613]   [**374]  The only contention of this appellant is that his convictions by the court of the three assaults (one with intent to murder) with which he was charged and the charges of [***2]  stealing a pistol and carrying it concealed about his person were against the weight of the evidence.
The contention, which could have been raised below on a motion for a new trial, is not reviewable on appeal.  Time and time again we have held that the weight of the evidence and the credibility of witnesses are matters primarily for the trial court to determine.  Spencer v. State, 235 Md. 129. His motions in these non-jury cases for judgments of acquittal having been denied, the appellant was entitled to appellate review of the legal sufficiency of the evidence, but he chose not to seek a reversal on this ground apparently because the evidence, as the record discloses, was clearly sufficient, if believed, to convict him of the several offenses for which he was indicted.  Judgments of conviction based on such evidence will not be set aside.  Graczyk v. State, 233 Md. 245.
Judgments affirmed.  

93 of 138 DOCUMENTS 

HALL v. HALL 

No. 188, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 191; 208 A.2d 593; 1965 Md. LEXIS 641 

March 31, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Two appeals in one record from the Circuit Court of Baltimore City; Cardin, J.  

DISPOSITION:
Decree for divorce is reversed, case is remanded for further proceedings on wife's cross-bill and otherwise for passage of a decree in accordance with this opinion.  Costs to be paid by the appellee.  

HEADNOTES:

Divorce -- Decree In Favor Of Husband On Grounds Of Voluntary Separation Reversed Where Based On Hawaiian Separation Decree In Favor Of Wife Implicity Negating Voluntariness -- Wife's Cross-Bill Remanded For Proof That Hawaiian Decree Was Based On Desertion By Husband -- Award For Support, Modifying Original Award, Upheld -- Award For Counsel Fees Reduced.  In a suit for separate maintenance, brought in the Territory of Hawaii by the husband, in which the wife filed a cross-bill, a decree was passed in favor of the wife and she was awarded $ 400.00 a month as alimony. In the instant case, based on the separation in Hawaii, the husband, now a resident of Maryland, sought an absolute divorce on the ground of constructive desertion by the wife and the wife cross-filed seeking an absolute divorce on the ground of desertion by the husband without cause.  The evidence did not support a divorce [***2]  on either ground and on the suggestion of the chancellor the husband filed a bill on the ground of voluntary separation. From a decree granting a divorce to the husband on this latter ground and awarding the wife $ 300.00 a month alimony and $ 2500.00 for counsel fees, both parties appealed.  This Court, reversing the decree, gave full faith and credit to the Hawaiian decree, implicit in which was that the wife had grounds for divorce so that a voluntary separation did not occur at the time of the Hawaiian separation.  The Court could not, however, grant a divorce to the wife on her cross-bill on the grounds of desertion because there was no proof that the wife was granted the Hawaiian decree on the basis of the husband's desertion. Although the case was remanded for further proceedings on the wife's cross-bill, since the Court found that the wife would be entitled to a divorce in Maryland on the grounds of desertion if the Hawaiian decree was based on desertion, the Court concluded that the wife was entitled to support.  The Court found sufficient material change in circumstances to justify the modification of the original Hawaiian decree and considering the husband's net income [***3]  and the lack of proof of other assets, upheld the lower court's reduction of the original award. On the same facts the Court found the lower court's award for counsel fees to be excessive and reduced it accordingly.  

SYLLABUS:

Suit by Richard E. Hall, Jr., against Margaret J. Hall for an absolute divorce on the ground of constructive desertion.  A cross-bill was filed by the wife seeking an absolute divorce on the ground of desertion by the husband.  The husband filed a supplemental bill on the ground of voluntary separation and from a decree of absolute divorce on the ground of voluntary separation and an award for alimony and counsel fees, both parties appeal.  

COUNSEL:
Stanley M. Dietz for appellant.
Stanford H. Franklin, with whom were Mandel & Franklin and William O. Goldstein on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Marbury and Sybert, JJ., and Powers, J., Associate Judge of the Seventh Judicial Circuit, specially assigned.  Powers, J., by special assignment, delivered the opinion of the Court.  

OPINIONBY:
POWERS 

OPINION:

 [*192]   [**594]  This case provides a variation on the discordant matrimonial theme so often before this Court, in that the separation [***4]  of the couple occurred some five thousand miles from Maryland in the now 50th State of Hawaii.  The husband left the marital 

 [*193]  abode on August 12, 1958, during an argument and moved to other quarters, and neither has since made any effort to reconcile.
On the same day he signed and filed a complaint against the wife for "separate maintenance" on the ground that she inflicted on him "*** grievous mental suffering continued over a course of more than sixty days, which has rendered the life of Plaintiff burdensome and intolerable and their further living together insupportable."
The wife filed a cross-bill in that suit and a decree was passed by the Circuit Court, First Judicial Circuit, Territory of Hawaii, in favor of the wife, permitting her to live separate and apart from the husband for a period of not more than two years, granting her custody of their eighteen year old daughter, awarding $ 400.00 a month for her support and $ 100.00 a month for the support of the daughter, since emancipated.  The decree also divided certain personal property and awarded counsel fees.
The case now before us on appeal began with the filing by the husband, now a resident of Maryland,  [***5]  of a bill of complaint for an absolute divorce on the ground of constructive desertion by the wife.  A cross-bill was filed by the wife in which she asked for an absolute divorce from the husband claiming that he deserted her without cause.  Both complaints were based on the separation in Hawaii.
After hearing testimony from both sides, the chancellor took the matter under advisement, and later suggested to counsel that the evidence did not support a divorce on the ground of either desertion or constructive desertion but would support a bill for voluntary separation. Over objection by wife's counsel, the husband obtained leave and filed a supplemental bill on the ground of voluntary separation. The wife's answer denied the voluntary separation and it was apparently agreed that the testimony already taken would be considered by the court in support of the supplemental bill.  A decree of absolute divorce on the ground of voluntary separation was passed, the wife was awarded $ 300.00 a month alimony and her counsel allowed a fee of $ 1500.00.
This disposition satisfied neither party and both appealed.  The wife argues that the husband should not have been granted 

 [*194]  a divorce [***6]  on the ground of voluntary separation but she should have been awarded a  [**595]  divorce on the ground of his desertion. She further contends that full faith and credit should be given the Hawaiian decree both as to a finding of culpability on the part of the husband which would negative a subsequent claim of a voluntary separation, and to the award of $ 400.00 a month.  At the same time she urges that conditions have changed and that she should be entitled to more than $ 400.00 a month for support.
The husband, on the other hand, contends that the divorce should have been granted to him on the ground of constructive desertion by the wife which would result in her not being entitled to any support.  He further does not accede to the amount allowed to the wife's counsel.
Since we must give full faith and credit to the decree of the Hawaiian Court, under Title 28, §  1738, U.S.C.A., n1 our consideration 

 [*195]  of the question of the correctness of the chancellor's finding that the parties voluntarily agreed to separate, first leads to an examination of what the record in the earlier case reflects.  Under the Uniform Judicial Notice of Foreign Law Act in effect in this State [***7]  since 1939, reasonable notice of intent to offer evidence of the law in a territory of the United States must be given.  Code 1957, Article 35, §  47 et seq.  In the absence of proof of the law of another jurisdiction it is presumed to be the same as the law of this State.  Brown v. Fidelity & Dep. Co., 143 Md. 29, 121 Atl. 920 (1923). No notice of intention to rely on the law of the then Territory of Hawaii was given by either party to the other.

n1 That one state must give, to the judicial proceedings of another, "full faith and credit," is, of course, the command of Art. IV, Sec. 1 of the federal Constitution.  Congress' power to legislate what effect must be given to the judicial proceedings of courts of the United States (included within this definition are territorial courts of the various territories of the United States created by Congress as "legislative courts" under Art. 1, Sec. 8, and Art. IV, Sec. 3, of the Constitution, as well as "constitutional courts," created under the judiciary article of the federal Constitution), is derived from other provisions of the Constitution, namely those which declare the extent of the federal judicial power, which authorize all legislation necessary and proper for carrying out the powers of the federal government, and which declare the supremacy of the national government.
By the supremacy clause alone, there can be little doubt that the judicial proceedings of those federal courts, set up under the judiciary article of the Constitution (so-called "constitutional courts"), are entitled to "full faith and credit." The present section 1738, which is directly traceable to a federal statute first passed in 1804 (2 Stat. at Large 298, March 27, 1804), is Congress' command that the judicial proceedings of its territorial courts (so-called "legislative courts") be given "full faith and credit." This section has been approved by the Supreme Court in Embry v. Palmer, 107 U.S. 3, 9, 27 L. Ed. 346 (1883); Atchison, Topeka & Santa Fe Ry v. Sowers, 213 U.S. 55, 53 L. Ed. 695 (1909); and Alaska Packers Assn. v. Comm'n., 294 U.S. 532, 546, 79 L. Ed. 1044 (1935). The section has been applied in Perkins v. Benguet Consol. Mining Co. (Calif. 1942), 132 P. 2d 70, cert. den. 319 U.S. 774, 87 L. Ed. 1721, and in Butler v. Butler, 40 N. Y. S. 2d 353 (1943). In the last case cited, a divorce decree of the Territory of Hawaii was also involved.

 [***8]  
Alimony may be granted in this State if the wife is entitled to a divorce. Wald v. Wald, 161 Md. 493, 502, 159 Atl. 97 (1931), and many cases there cited.  We conclude that the Hawaiian Court found that the separation occurring on August 12, 1958, involved culpability on the part of the husband, thus negativing the existence of voluntary separation. Moreover, the allegations in the bill of complaint filed by the husband in that court do not suggest even a hint that there was a voluntary agreement to separate.  Because of the requirement to give full faith and credit to the Hawaiian decree, implicit in which is that the wife had grounds for divorce, we find that a voluntary separation did not occur in August of 1958.
 [**596]  Since in this State other grounds than desertion exist, we cannot properly find, in the absence of proof, that the wife was granted the Hawaiian decree for separate maintenance on the basis of her husband's desertion. n2

n2 This would do no violence to the rights of the parties if Hawaiian law were applied, a wife there being entitled to separate maintenance, for any cause for which an absolute divorce may be granted.  §  324-20 of Title 33, Revised Laws of Hawaii, 1955, in addition to desertion, allows, as grounds for divorce, adultery, sentence to imprisonment, insanity, contracting Hansen's disease, extreme cruelty, habitual drunkenness, inflicting mental suffering and non-support.

 [***9]  

 [*196]  Lacking proof as to the nature of the culpability of the husband we are unable to say that the wife should have been granted a divorce specifically on the ground of the husband's desertion. This circumstance makes it necessary to remand the case for further proceedings on the sole question of the wife's cross-bill for an absolute divorce on the ground of desertion.
The decree of the Hawaiian Court, which stated that the allegations of the wife's cross-bill were sustained, also leads us inescapably to the conclusion that the husband was not legally justified in leaving the wife.
Having found that the separation was not voluntary, that the wife did not constructively desert the husband, that the wife was entitled to a divorce under Hawaiian law, and would be entitled to a divorce in Maryland on the ground of desertion if her bill of complaint filed in the Hawaiian case (which was not in the record before us) alleged desertion by her husband, the wife is entitled to support, thus we reach the question of the proper amount:
"Our inquiry is not directed to a review of the original award, but is solely concerned with any difference between the present circumstances of [***10]  the parties and those which existed when the decree for alimony was passed." Langrall v. Langrall, 145 Md. 340, 345, 125 Atl. 695 (1924).
We find that the emancipation of the daughter, the passage of six years, the wife's change in residence from Hawaii to Washington, D. C., her having been employed occasionally since the separation, and the husband's present residence in Maryland, constitute sufficient material changes in the circumstances which existed at the time of the original award to justify, if otherwise appropriate, the modification of the effect of the original decree.
Apposite language is found in McCaddin v. McCaddin, 116 Md. 567, 572, 82 Atl. 554 (1911), one of a considerable number of cases reaching the same conclusion:
"*** although this Court has the power to review the amount fixed by the lower Court * * *, it should not disturb the large discretion vested in the chancellor 

 [*197]  unless it is thoroughly satisfied that there has been error in respect to the amount named."
The allowance by the chancellor to the wife of $ 300.00 a month, being approximately one-third of the husband's net income, without proof that he has assets of any substantial [***11]  value, is not clearly erroneous and accordingly, this finding will not be disturbed.  Maryland Rule 886 a.
We have considered the allowance by the chancellor of a fee of $ 1500.00 to counsel for the wife, and his request for an allowance of $ 1000.00 for handling the appeal.  Though the wife is a favored suitor and is entitled to have the husband pay her attorney, the amount of the payment must be within the means of the husband and not so high as to be oppressive.  Kapneck v. Kapneck, 235 Md. 366, 201 A. 2d 798 (1964).
We believe that a total fee of $ 2500.00 for conducting the proceedings below and on appeal, to be paid by a man whose net income after payment for his  [**597]  wife's support is about $ 600.00 per month, is excessive, and that a total fee of $ 1000.00 for services rendered here and below is reasonable.
Decree for divorce is reversed, case is remanded for further proceedings on wife's cross-bill and otherwise for passage of a decree in accordance with this opinion.  Costs to be paid by the appellee.  

94 of 138 DOCUMENTS 

SPRINGFIELD v. STATE 

No. 226, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 611; 208 A.2d 603; 1965 Md. LEXIS 684 

March 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Storehouse Breaking -- Schoolhouse (Containing Filing Cabinets With Stopwatches, And Soft Drink Vending Machines) Was Storehouse, Or At Least Outhouse, Within Statutory Meaning -- Claim That Larceny Of Stopwatch Was Not Proven Without Merit -- Conceded That Defendant Was Rogue And Vagabond If Schoolhouse Was Storehouse Within Statutory Meaning.  

SYLLABUS:

Francis Springfield, Jr., was convicted in a non-jury case of storehouse breaking and of being a rogue and vagabond, and from the judgment entered thereon, he appeals.  

COUNSEL:
Richard K. Jacobsen for the appellant.
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 Morton Sachs, Assistant State's Attorney, on the brief, for the appellee.  

JUDGES:
Prescott, C. J., and Horney, Sybert, Oppenheimer and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*611]   [**604]  That a schoolhouse was broken into, that several cabinets therein were forced open, that a stopwatch was missing from one of them, and that the appellant [***2]  was seen with a screw driver and hammer trying to pry open a soft drink vending machine, are facts which are not disputed.
The primary contention of the appellant is that his conviction for storehouse breaking was not justified because the building 

 [*612]  entered was a schoolhouse. Other questions concern the sufficiency of the evidence to support the finding that the appellant had stolen the missing stopwatch, and whether or not he could lawfully be deemed a rogue and vagabond under the statute.
That a schoolhouse (containing filing cabinets in which stopwatches were kept and vending machines from which soft drinks were dispensed) is a storehouse or at least an outhouse, within the meaning of § §  32, 33 and 342 of Article 27 of the Code of 1957, has been settled by the decision of this Court in Hackley v. State, 237 Md. 566, wherein, after reviewing the most recent cases and an early case involving similar questions, we held that a moving picture theatre (containing a safe, a popcorn storage cabinet and an ice cream refrigerator) was a storehouse within the meaning of §  342, supra.
The contention that the larceny of a stopwatch was not proven is without merit.  Not [***3]  only was there evidence that one of the cabinets contained stopwatches, but the police found a stopwatch on the appellant, and the school custodian identified it as one of those belonging to the school.  It was conceded at the argument that the appellant was a rogue and vagabond if a schoolhouse is a storehouse within the meaning of the statutes.
Judgment affirmed.  

95 of 138 DOCUMENTS 

HARTLEY v. STATE 

No. 207, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 165; 208 A.2d 72; 1965 Md. LEXIS 638 

March 16, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Case remanded, without affirmance or reversal, for further proceedings consistent with this opinion; costs to be paid by the Mayor and City Council of Baltimore.  

HEADNOTES:

Appeal -- Powers Of Appeal Court Limited To Appellate Review -- It Does Not Make Original Factual Findings -- Voluntariness Of Guilty Plea Not Determined.  In the instant case the appellant, who filed a petition seeking relief under the Uniform Post Conviction Procedure Act, contended that he had been denied the right to appeal his convictions and that his pleas of guilty had been involuntarily made.  At the hearing, the judge below granted the appellant a delayed appeal "so that the Court of Appeals may determine whether the guilty plea was voluntary", but did not make any factual findings or conclusions of law in regard to the appellant's other post conviction contentions.  The Court held that its powers were limited to appellate review and that it could not invade the province of the nisi prius courts by making an original factual finding.  Therefore, although the transcript of testimony taken in the post conviction proceeding was included [***2]  in the record forwarded to it, the Court was unable to make any determination in regard to the voluntariness of the guilty pleas.
Appeal -- Testimony Taken In Collateral Proceedings Ordinarily Not Included In The Record On Appeal -- Because Of Unusual Circumstances Here, Court Allowed Testimony From A Collateral Post Conviction Proceeding -- Case Remanded.  In the instant case the appellant, who filed a petition seeking relief under the Uniform Post Conviction Procedure Act, was granted a delayed appeal.  The State filed a motion requesting the Court to delete from the record in this appeal all that related to the collateral post conviction proceeding (including the transcript of testimony taken therein) and to strike from the appendix to appellant's brief the printed copy of the transcript of the post conviction hearing.  The Court stated that ordinarily it would not have been proper to include the transcript of testimony taken in a collateral proceeding in the record on this appeal.  However, the Court felt that, because of the unusual circumstances of this case, if it disregarded the testimony in the post conviction proceeding, substantial injustice to the appellant would result.  [***3]  Therefore, after a careful study of the transcript, the Court decided to remand the case to the Criminal Court of Baltimore, without affirming or reversing that court's judgments, for further proceedings.  

SYLLABUS:

John M. Hartley, who was convicted on several counts of armed robbery, subsequently filed a petition seeking relief under the Uniform Post Conviction Procedure Act.  At the hearing the petitioner was granted leave to file a delayed appeal, and the petitioner so appealed.  

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

JUDGES:
Prescott, C. J., and Hammond, Marbury and Sybert, JJ., and Powers, J., Associate Judge of the Seventh Judicial Circuit, specially assigned.  Sybert, J., delivered the opinion of the Court.  

OPINIONBY:
SYBERT 

OPINION:

 [*167]   [**73]  On April 28, 1961, the appellant, John M. Hartley, pleaded guilty before Judge Carter in the Criminal Court [***4]  of Baltimore under each of the first counts of indictments Nos. 991 through 995 charging armed robbery of several loan offices.  He was sentenced to a term of 20 years' imprisonment in the penitentiary for each conviction, the first two terms to run consecutively and the other three to run concurrently with the second one.  This is a delayed appeal from those judgments.
On January 31, 1964, Hartley filed a petition seeking relief under the Uniform Post Conviction Procedure Act. He contended, among other things, that he had been denied the right to appeal his 1961 convictions and that his pleas of guilty to the charges in the several indictments had been involuntarily made.  Judge Harlan, after a hearing on May 5, 1964, found that Hartley had attempted to mail his notice of appeal on May 26, 1961, but because of circumstances beyond his control was unable to mail it until May 31, 1961, and that therefore he was entitled to a delayed appeal since he had done all that he could have to note the appeal.  Because he had granted the delayed appeal, Judge Harlan did not make any factual findings or conclusions of law in regard to the other post conviction contentions 

 [*168]  of Hartley,  [***5]  notwithstanding the fact that testimony pertaining to them had been taken before him.  Instead, Judge Harlan, in his memorandum opinion, stated "*** [I] will grant Petitioner leave to file a delayed appeal so that the Court of Appeals may determine whether the guilty plea was voluntary."
On this appeal from the judgments in the criminal cases the appellant raises only one question, the same one which Judge Harlan suggested we answer, i.e., whether the guilty pleas were voluntarily made.  Unfortunately, both Judge Harlan and the appellant have misconceived the powers of this Court, for our powers are limited to appellate review and we cannot invade the province of the nisi prius courts by making an original factual finding.  State ex rel. Harris v. Warden, 195 Md. 702, 72 A. 2d 713 (1950); Burke v. Burke, 204 Md. 637, 106 A. 2d 59 (1954); and see the many cases collected in 7 M.L.E., Courts, sec. 72; see also Maryland Rule 885.  Therefore, although the transcript of testimony taken in the post conviction proceeding was included in the record forwarded to us in this case, we are unable to make any determination in regard to the voluntariness of the guilty pleas.  [***6]  
This brings us to consideration of a motion filed by the State, the appellee in this case, entitled a "Motion to correct record and to strike portions of the appendix to appellant's brief." The motion requests us to delete from the record in this appeal all that relates to the collateral post conviction proceeding (including the transcript of testimony taken therein) and to strike from the appendix to appellant's brief the printed copy of the transcript of the post conviction hearing.  Without discussing the reasons advanced by the State to support its motion, we agree that ordinarily it would not have been proper to include the transcript of testimony taken in a collateral proceeding in the record on this appeal.  However, we feel we must deny the appellee's motion because under the unusual circumstances of this case we believe that if we disregarded the testimony in the post conviction proceeding substantial injustice to the appellant would result.  See Code (1957), Art. 5, sec. 16; cf. Rules 871 a and 885.
Therefore, we have studied the transcript carefully.  Five witnesses testified  [**74]  before Judge Harlan, including the appellant.  

 [*169]  The appellant testified [***7]  that he was induced to plead guilty to the charges because he was told by his privately retained attorney that if he did, his wife, who had been indicted jointly with him, would not be prosecuted.  Hartley further testified that his counsel had made a "deal" with an assistant State's Attorney whereby the cases against his wife would be stetted if he pleaded guilty. The appellant's attorney, who represented him in the criminal cases but not on this appeal (and who himself was serving a term in prison at the time of the post conviction hearing) testified that he had made the deal described by the appellant with an assistant State's Attorney.  The assistant State's Attorney testified that when the appellant's trial counsel asked him whether the State would stet the armed robbery cases against Hartley's wife if Hartley pleaded guilty, he answered yes, although he also testified that those cases were to be stetted as to the wife anyway (as they were) because of the lack of evidence.  However, appellant's attorney was not apprised of this intention.
In view of this testimony, since we do not make original factual findings we have decided to remand the case to the Criminal Court of Baltimore,  [***8]  without affirming or reversing that court's judgments (Rule 871 a), for an evidentiary hearing and a factual finding by the lower court as to whether or not the pleas of guilty made by Hartley on April 28, 1961, were voluntarily made.  In the meantime we shall suspend the determination of the validity of the convictions pending the outcome of the hearing.  On remand, the hearing judge shall make provision for a record of the proceedings (including a transcript of the testimony) and cause it to be forwarded to this Court, together with his findings of fact and conclusions of law.
Case remanded, without affirmance or reversal, for further proceedings consistent with this opinion; costs to be paid by the Mayor and City Council of Baltimore.  

96 of 138 DOCUMENTS 

JOHNSON v. STATE 

No. 49, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 140; 207 A.2d 643; 1965 Md. LEXIS 636 

March 15, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Murder -- Assault With Intent To Rape -- Rape -- Confessions -- Contention That Convictions Were Based On "Uncorroborated" Confessions Rejected -- There Was Sufficient Evidence, Independent Of Confessions, Relating To And Tending To Establish Corpus Delicti To Justify Convictions -- Testimony Of Prosecutrix In Rape Case Need Not Be Corroborated.
Criminal Law -- Confessions -- No Objection Made Below On Ground Of Involuntariness, Therefore Question Was Not Properly Before This Court.
Criminal Law -- Confessions -- Because Copy Sent To Counsel Was Not Signed By Interrogating Sergeant As A Witness, Defendant Contended There Was Doubt As To Whether It Was His True Signed Statement -- Rejected -- At Trial Original Was Sufficiently Authenticated.
Criminal Law -- Non-Jury Trial -- No Prejudice Resulted Where Sergeant Inadvertently Handed Counsel Confession In Another Case Against Defendant And It Was Not Offered In Evidence Or Read By Judge.
Criminal Law -- Confessions -- Contention Of Involuntariness Rejected -- Record Negated That Accused Was Questioned For  [***2]   Lengthy Periods, That He Requested Counsel, That He Was Held Incommunicado Or That There Was Unreasonable Delay In Providing Preliminary Hearing -- Failure To Hold Preliminary Hearing Does Not Bear On Voluntariness Of Confession.
Criminal Law -- Confessions -- Contention That Radio Obtained By Illegal Search And Seizure Was Used To Induce Confession In Rape Case Rejected -- Radio Taken From Victim's Room Was Found In Appellant's Room And Given To Police By Member Of Family With Whom Appellant Resided -- Radio Was Not Shown To Appellant Until After He Confessed.
Criminal Law -- Rape Case -- Evidence -- No Prejudice Resulted From Reference To Previous Trial For Murder And Assault With Intent To Rape -- Same Judge, Sitting Without Jury, Tried Previous Case And Knew Testimony Therein.
Criminal Law -- Rape -- Delay In Making Complaint And Alleged Drunkenness Of Victim At Time Of Rape Goes To Weight Of Evidence And Credibility Of Witness And Are Facts For Trial Court's Determination.
Sentence -- Imposition Of Three Death Penalties Was Within Statutory Limits -- Did Not Amount To Cruel And Unusual Punishment.
Criminal Law -- Contention That Trial Judge Should Have  [***3]   Disqualified Himself In Present Rape Case Where He Heard Prior Murder And Assault With Intent To Rape Cases In Which Appellant Was Convicted, Rejected.
Attorneys -- Where No Plea Or Statement Made At Preliminary Hearing Was Introduced At Trial, Preliminary Hearing Was Not Critical Stage Of Proceeding Requiring Counsel -- Court Appointed Counsel Entered Plea At Arraignment.  

SYLLABUS:

Ervin Lee Johnson was convicted of first degree murder, assault with intent to rape and rape, by the trial court, sitting without a jury, and from the judgments entered thereon, he appeals.  

COUNSEL:
John R. Hargrove for appellant.
John W. Sause, Jr., 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.  Sybert, J., delivered the opinion of the Court.  

OPINIONBY:
SYBERT 

OPINION:

 [*142]   [**645]  Convicted in three capital cases by Judge Harris, sitting without a jury in the Criminal Court of Baltimore, and sentenced to death in each case, Ervin Lee Johnson appeals.  He was found guilty of the first degree [***4]  murder of seven year old Debbie Washington under indictment No. 3228, and of assault with intent to rape the same child under indictment No. 3229.  These two cases were tried together.  Immediately thereafter, on the same day, Johnson was tried under indictment No. 3751 and found guilty of the rape of Bertha McRoy.
The evidence introduced by the State in the Washington cases showed that Johnson, then thirty years of age, moved into the home of Mr. and Mrs. Leonard N. Washington in February, 1963, as their guest.  Also living in the house, besides the 

 [*143]  parents, were eight children, including Debbie, Mrs. Washington's father, and a boarder.  Debbie was last seen alive by her father at about 2:30 P.M. on Saturday, May 25, 1963.  At about 4:00 P.M. the parents became worried because of her absence and they, with Johnson, searched the neighborhood without result.  She was then reported missing to the police.  At about 4:30 P.M. on the next day, Sunday, a teen-age daughter of the Washingtons discovered in a closet in her bedroom the body of Debbie partially covered by a mattress.  The police took everyone in the house, including Johnson, to police headquarters at about 5:45 P.M.  [***5]  for questioning and began to interrogate Johnson at 7 P.M.  Sometime in the next hour Johnson consented to having his fingernails clipped and scraped by officers from the crime laboratory, and then began to make certain oral admissions to the police, which were reduced to writing from 8 to 9:09 P.M. and signed by him.  In the statement he confessed that he had strangled and raped Debbie Washington and placed her body in the closet where it was found.  An autopsy report showed the cause of death to be asphyxia due to strangulation and that the decedent had been the victim of rape or attempted rape.
In the case tried under indictment No. 3751 the State introduced evidence showing that Bertha McRoy, a sister-in-law of Mrs. Washington who lived two doors from the Washingtons, had been raped by Johnson in her bedroom after a party on the night of April 20, 1963.  Mrs. McRoy testified that she recognized Johnson's voice when, as he was leaving her room, he threatened to cut her throat if she made any outcry.  On May 27, 1963, Johnson was questioned in regard to the McRoy complaint, which had been made to the police earlier that day, after Debbie Washington's body was found.  The interrogation [***6]  began at 11:30 A.M., and after Johnson made incriminating admissions, a written statement was taken from 12:30 to 1:40 P.M. in which he confessed to having raped Mrs. McRoy.  At the trials Johnson did not testify and produced no evidence.
In reference to the two Washington cases the appellant contends that the convictions were based entirely on the confession introduced in evidence, i.e., that the confession was not "corroborated" and that therefore his motion for a judgment of acquittal was improperly denied because of the insufficiency of 

 [*144]  the evidence.  We find this contention to be without merit.  To state that a confession must be "corroborated" is misleading.  What we have consistently held is that an extrajudicial confession of guilt by a person accused of crime, unsupported by other evidence, is insufficient to warrant a conviction, but  [**646]  that if there is evidence, independent of the confession, which relates to and tends to establish the corpus delicti, the conviction is justified.  Bradbury v. State, 233 Md. 421, 197 A. 2d 126 (1964), and cases cited; Pierce v. State, 227 Md. 221, 175 A. 2d 743 (1961), and cases cited.  We said in  [***7]  Bradbury (at pp. 424-425 of 233 Md.),
"*** that proof of the corpus delicti need not be full and positive but may be established by the circumstances of each particular case; and that the supporting evidence is sufficient to establish the corpus delicti if, when considered in connection with the confession or admission, it satisfies the trier of facts beyond a reasonable doubt that the offense charged was committed and that the accused committed it."
The requirements were satisfied in the Washington cases.  The trial court had before it, in addition to the confession, the autopsy report which was clear evidence that the crimes charged had been committed, the testimony of the father as to the circumstances surrounding the disappearance of the child, the testimony of the teen-age sister and of a police officer in regard to the circumstances of the discovery of the body, and the testimony of another police officer with respect to the taking of the appellant's statement.  Therefore, as far as the appellant's first contention is concerned, the motion for a judgment of acquittal was properly denied.
The appellant next argues that the confession in the Washington cases [***8]  was not voluntarily made, on the grounds that it was obtained four hours after his arrest, he was subjected to constant questioning without benefit of counsel, he was intimidated by the police by the clipping and scraping of his fingernails, and that "possibly" illegally seized evidence was used to obtain the confession. But the appellant did not object to the admission of the confession below on the ground that it was 

 [*145]  involuntarily made and therefore this question is not properly before us.  Maryland Rule 885.
It is further claimed that the confession in the Washington cases was improperly admitted because there was "reasonable doubt as to whether or not the *** confession *** was the true statement signed by the Defendant." This contention is based on the fact that in response to the defendant's request for pre-trial discovery, the State's Attorney sent defendant's counsel a typewritten copy of the confession which was not signed as a witness by the sergeant who had conducted the interrogation, although the original was so signed.  It was shown at the trial that there were no differences in text between the original and the copy, as was conceded by defense counsel,  [***9]  and the original was sufficiently authenticated by the sergeant. Thus it was properly admitted in evidence.
A further contention relating to the Washington cases is that the appellant was prejudiced because the sergeant, when asked to produce the confession relating to the Washington cases, inadvertently handed to counsel the confession in the McRoy case, and the States' Attorney said "*** I think you handed the wrong one.  I think that is the Bertha McRoy case." The mistake was discovered immediately, the confession pertaining to the McRoy case was not handed to the judge, read, or offered in evidence, and the proper confession was produced instead.  It had been stated at the beginning of the pending trial that the McRoy case was to be tried next, so we are at a loss to see any prejudice to the appellant in the slight reference to the McRoy case, especially since the case was being tried before an experienced judge, and there was no jury.
In regard to the McRoy case, the appellant contends that his motion for a judgment of acquittal was improperly denied because of the insufficiency of the evidence.  As before, he argues that the confession  [**647]  introduced in the McRoy [***10]  case was not "corroborated".  Without repeating what we said above concerning the same argument in the Washington cases, it will suffice to say that the corpus delicti in the McRoy case was sufficiently proven by the prosecutrix's own testimony, if believed, as the trial judge said it was.  The testimony of the prosecutrix in a rape case need not be corroborated. Domneys v. State, 229 Md. 388, 

 [*146]  182 A. 2d 880 (1962); Doyal v. State, 226 Md. 31, 171 A. 2d 470 (1961). The prosecutrix's testimony and the confession were sufficient evidence to warrant a denial of the defendant's motion.
The appellant maintains that the confession was improperly admitted in evidence because it was involuntarily made.  Unlike the situation in the Washington cases this contention was raised below.  First the appellant argues that he was subjected to constant questioning without benefit of counsel. But this claim is without merit since there is no indication in the record that he was questioned for lengthy periods or that he ever requested counsel.  Anderson v. State, 237 Md. 45, 205 A. 2d 281 (1964); Green v. State, 236 Md. 334, 203 A. 2d 870 (1964). Next he states that he [***11]  was held incommunicado for two days before he was given a preliminary hearing. The evidence shows that Johnson was taken into custody on Sunday, May 26, gave a statement relating to the Washington cases on the same day, gave a statement relating to the McRoy case on the next day, and was given a preliminary hearing on Tuesday, May 28.  There is no claim that he ever requested to see anyone or to make a telephone call.  We do not believe there was any unreasonable delay in providing a preliminary hearing. Moreover, we have held that even a failure to hold a preliminary hearing does not bear on the voluntariness of a confession. Mefford & Blackburn v. State, 235 Md. 497, 201 A. 2d 824 (1964); Green v. State, supra.  While the appellant urges here that he was intimidated by the fingernail clipping and scraping, he made no such claim below and the police testimony showed that he explicitly consented thereto.
Finally, with respect to the voluntariness of the confession in the McRoy case, the appellant contends that evidence which "might" have been seized illegally was used to obtain it.  The evidence referred to was a small transistor radio which disappeared from the McRoy home [***12]  on the night upon which Bertha McRoy was raped, and which a sister of Debbie Washington found in the appellant's room after Debbie's body was discovered and gave to the police.  Thus the radio was not obtained as the result of any search, legal or illegal, by agents of the State.  Moreover, the confession itself shows that the radio was 

 [*147]  not exhibited by the police to the appellant until after he had completed a detailed narrative statement in which he admitted the rape of Mrs. McRoy and his theft of the radio. Hence, it is manifest that the radio did not induce the confession. Cf. McChan v. State, 238 Md. 149, 207 A. 2d 632 (1965), and Fahy v. Connecticut, 375 U.S. 85 (1963). Considering all of the circumstances pertaining to the making of the confession, we do not believe the lower court was in error in admitting it in evidence.
It is argued that the appellant was prejudiced by a reference by the State's Attorney to the previous trial in the Washington cases.  The reference was in the form of the following question asked of a police officer testifying for the State: "*** is it true as you testified in the preceding case that the defendant, Ervin Johnson, was [***13]  interrogated by you and *** [two other officers]?" Defense counsel objected and the question was not answered.  The State's Attorney explained that he was merely attempting to show that no threats or violence occurred during the whole period of interrogation of the appellant.  We see no prejudice.  The same judge had tried the previous cases earlier that day and knew what the testimony was in that trial.   [**648]  As previously noted, he was an experienced judge sitting without a jury.
The appellant next maintains that the delay between the time of Mrs. McRoy's rape on April 20 and her complaint to the police on May 27 renders her testimony unworthy of belief.  Mrs. McRoy explained the delay by stating that she had told her family about it on the day it occurred but they did not report it to the police, and that she told the officers about it after Debbie Washington's body was found and her radio was discovered in Johnson's room.  In any event the matter of delay in making a complaint goes to the weight of the evidence and the credibility of the prosecuting witness, as does the contention of the appellant that Mrs. McRoy was drunk at the time of the rape. Such facts are primarily [***14]  for the trial court's determination, not ours.  Anderson v. State, supra; cf. Green v. State, 161 Md. 75, 82, 155 Atl. 164 (1931); Legore v. State, 87 Md. 735, 41 Atl. 60 (1898).
It is urged that the imposition of three death penalties 

 [*148]  amounts to cruel and unusual punishment.  This is without merit since the sentences were within the statutory limits.  Adair v. State, 231 Md. 255, 189 A. 2d 618 (1963); Duff v. State, 229 Md. 126, 182 A. 2d 349 (1962).
The last major contention is that it was improper for the trial judge to hear the McRoy case after having heard the Washington cases and that he should have disqualified himself.  This contention is not sustainable.  There was no request for disqualification or for a jury trial and no affidavit filed for removal of the case.  While the question may not be raised here for the first time, we see nothing improper in the judge's action below.  The fundamental consideration is that the facts supported the verdict and the sentence was within the permissible limits.
Finally, the appellant's counsel submits several questions on behalf of the appellant.  The contentions are in the form of a letter to appellant's [***15]  counsel, reprinted in his brief.  These contentions are: "the reading of my past criminal record in Court without my taking the witness stand" [this occurred in connection with sentencing, after conviction]; "admission of my confession at my trial"; "illegally arrested; illegal search and seizure; illegal detention; police brutality; without counsel at preliminary hearing; without counsel at first arraignment; perjury of witness; denial of confronting accuser; inadequate ineffective representation of counsel." With reference to the claim that he did not have counsel at his preliminary hearing in Municipal Court, it is not alleged or shown that he entered any plea there, or that any plea or statement he may have made there was introduced at his trial in the Criminal Court, and thus the preliminary hearing was not such a critical stage of the proceedings as to require the presence of counsel.  Lauder v. State, 233 Md. 142, 145, 195 A. 2d 610 (1963). As to alleged lack of counsel at his arraignment, the record shows that court appointed counsel entered pleas of not guilty on his behalf at the arraignment. With respect to the other contentions we point out that those which were [***16]  properly raised below were discussed earlier and those which were not properly raised are not before us.  Rule 885.  In any event, they amount merely to bald statements without any citation of supporting facts.
Judgments affirmed.  

97 of 138 DOCUMENTS 

McCHAN, JONES, BETHEA, GRIFFIN AND SHELLY v. STATE 

No. 199, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 149; 207 A.2d 632; 1965 Md. LEXIS 637 

March 15, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Five appeals in one record from the Circuit Court of Baltimore; Harris, J.  

DISPOSITION:
Judgments against McChan reversed and cases remanded for new trials; the Mayor and City Council of Baltimore to pay the costs.  Judgments against Jones, Griffin, Bethea and Shelly affirmed.  

HEADNOTES:

Severance -- Appellant Contended Denial Of Severance Amounted To A Denial Of Motion To Exclude Codefendants As Witnesses -- Lower Court Should Have Granted Severance -- Appellant Was Tried With His Codefendants In Four Cases In Which He Was Charged Jointly With Other Defendants And In Three Cases In Which He Was Not Charged.
Arrest -- Approach By Police Officer And Questioning As To Identity And Actions Only An Accosting -- Actual Arrest Was Made At Later Time When There Was Probable Cause Therefore.  Where appellant claimed that his arrest was illegal in that it took place when a police officer spoke to him as he was running from the scene of an attempted holdup and suggested that he retrace his steps, at which time the officer had neither been witness to a misdemeanor nor had probable cause to believe a felony had been committed, the Court held that this was merely an accosting.  There was [***2]  no touching by the arrestor nor was the arrestee told he was under arrest. The intention of the arrestor and understanding of the arrestee are determinative.  While appellant may have thought he was under arrest when he was stopped and returned to the scene at the suggestion of the officer, he was not actually arrested until he was taken to the hospital to be treated for his injuries.  At that time there was probable cause for the officer to believe a felony had been committed and that appellant had committed it.
Criminal Law -- Confessions -- Although Interrogation Took Place On Day Appellant Was Released From Hospital, When He Was Still In Pain, There Was No Showing That Will Of Confessor Was So Overpowered As To Render Confession Involuntary.
Criminal Law -- Robbery -- Attempted Robbery -- Evidence Legally Sufficient To Convict Even Without Appellant's Confession.
Criminal Law -- Confessions -- Mere Fact Of Lack Of Counsel At Time Of Confession Does Not Of Itself Render Confession Inadmissible -- No Request For Counsel Was Made And Appellant Was Advised Of Right To Remain Silent.
Criminal Law -- Confession -- Is Not Rendered Inadmissible As Matter Of Law Because  [***3]   It Was Made Subsequent To An Illegal Arrest -- Test Of Admissibility Is Whether Confession Was, In Actuality, Voluntary.
Criminal Law -- Confessions -- Effect Of Confrontation With Illegally Seized Evidence -- Novel Question In Maryland -- Admissible Despite Confrontation With Such Evidence, Absent Showing That Such Confrontation Did In Fact Induce Confession -- Voluntariness, The Test Of Admissibility, Was Satisfied In This Case.
Criminal Law -- Confessions -- Absent Showing Of Involuntariness, Denial Of Right To Telephone Relative Does Not Render Inadmissible.
Arrest -- Sufficient Probable Cause For, Where Police Had General Description Of Suspect And Clothing He Was Wearing And Arresting Officer Made His Own Observations Of Appellant At Place Of Arrest After Acting On An Anonymous Phone Call Giving Appellant's Whereabouts.
Arrest -- Sufficient Probable Cause For, Where Based On Information Received From Other Robbery Participants.
Criminal Law -- Confessions -- Even If Arrest Were Illegal Confession Is Admissible Where It Appears To Be Voluntary -- Claim That Confession Was Made In Reliance On A Promise By Police And Other Circumstances Rejected.  

SYLLABUS:

 [***4]  
Under several indictments George McChan was convicted of armed robbery, Major Kenneth Jones and Robert Paige Griffin were convicted of armed robbery and attempted armed robbery, Willie Fred Bethea was convicted of attempted armed robbery and Charles Douglas Shelly was convicted of armed robbery and robbery, and from the judgments entered thereon, the defendants appeal.  

COUNSEL:
George L. Russell, Jr., with whom was Milton B. Allen on the brief, for appellant George McChan.
Alvin Solomon for appellant Major Kenneth Jones.
Arthur W. Kupfer for appellant Willie Fred Bethea.
Abraham L. Adler for appellant Robert Paige Griffin.
Joel Margolis for appellant Charles Douglas Shelly.
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, Horney, Marbury and Barnes, JJ.  Horney, J., delivered the opinion of the Court.  

OPINIONBY:
HORNEY 

OPINION:

 [*151]   [**634]  These prosecutions for armed robbery and other offenses incident thereto arose out of a series of five holdups of liquor dispensing [***5]  establishments in Baltimore City committed within less 

 [*152]  than a fortnight at the end of 1963 and the beginning of 1964.  All five of the appellants -- George M. McChan, Major K. Jones, Robert P. Griffin, Willie F. Bethea and Charles D. Shelly -- were convicted of one or more of the crimes charged in eleven indictments, and all have appealed.
All of the holdups followed a pattern in that the participants were colored men  [**635]  wearing black scarves as a mask with one of them (though not always the same one) carrying a single-barrelled shotgun. On December 27, 1963, Howard's Liquor Store was robbed by two men.  On January 1, 1964, Eddie's Cafe was robbed by three men.  On January 2, Lou's Liquor Store was robbed by three men.  Later that same night the Ensor Lounge was robbed by three men.  And on January 9 an attempt was made by two men to rob Howard's Liquor Store again.  On this occasion, an employee of the store shot one of the robbers and the robber with the shotgun fired in the direction of one of the employees.  Although the wounded man escaped, he was apprehended a short distance from the scene of the attempted robbery.
As a result of the first holdup of Howard's [***6]  Liquor Store, McChan, Jones and Griffin were charged (under indictment numbered 234) with armed robbery. Jones was found guilty. McChan and Griffin were found not guilty.  McChan was also charged (under indictment numbered 236) with carrying a deadly weapon, but was found not guilty.  As a result of the holdup of Eddie's Cafe, McChan, Jones and Griffin were charged (under indictment numbered 233) with armed robbery and McChan was separately charged (under indictment numbered 237) with carrying a deadly weapon. All were found guilty of armed robbery. On the theory that there had been a merger of offenses, McChan was found not guilty under the separate indictment. n1 As a result of the holdup of Lou's Liquor Store, all of the appellants were charged (under indictment numbered 230) with armed robbery and were found guilty. As before, the separate deadly weapon charge against McChan (under indictment numbered 

 [*153]  235) was held to have merged with the armed robbery charge.  As a result of the holdup of the Ensor Lounge, all of the appellants were charged (under indictment numbered 228) with armed robbery and were found guilty and McChan was found not guilty (under the separate [***7]  indictment numbered 238) of the deadly weapon charge.  As a result of the attempt to rob Howard's Liquor Store a second time, Jones, Griffin and Bethea were charged (under indictment numbered 229) with attempted armed robbery. Griffin was found not guilty.  Jones and Bethea were found guilty. Bethea was charged (under indictment numbered 231) with an assault with intent to murder and (under indictment numbered 232) with carrying a deadly weapon, and was found not guilty on both charges.

n1 No question as to whether the charge of carrying a concealed weapon "merged" with the charge of armed robbery is raised on this appeal.  See Veney v. State, 227 Md. 608.

While Officer Arnold was patrolling his post in the vicinity of the attempted holdup of Howard's Liquor Store he heard what sounded like a shotgun blast.  As he continued walking in the direction from which the sound came, the officer saw a man (later identified as Jones) running towards him.  When the man saw the officer, he slowed to a walk and crossed [***8]  to the other side of the street.  The officer also crossed the street, spoke to the man, and noticing that a wound on his head was bleeding, suggested that he retrace his steps.  On arriving at the scene of the holdup, the officer learned that there had been an attempted robbery, and, seeing blood in the area of his abdomen, asked the man if he had been shot.  He indicated that he had been and was taken by the officer in a police car to a hospital where he was treated for the abdominal wound.  He remained there for a week.  During a part of that time his condition was serious.
At the scene, Lieutenant Goodrich and Sergeant Adams learned that both participants had their faces covered with black bandannas or scarves and that the one who was not immediately apprehended weighed over 150 pounds, was 25 to 30 years old, was about 5 1/2 feet tall and was wearing a long dark car coat.  Later, the investigating officers  [**636]  went to the hospital to question the one who had been shot, but he refused to give them his name or address or any other information.  Thereafter, having returned to the police station, the police continued the interrogation of those who had witnessed the attempted [***9]  robbery, including 

 [*154]  McChan, who, it appeared, was a customer at the time of the holdup.
During the course of the continuing investigation, the police received an anonymous telephone call implicating Bethea as the participant who got away as well as information as to where he lived.  The police proceeded forthwith to investigate the tip.  When they arrived at the address given, one officer went to the rear of the house.  When one of the other officers knocked on the front door, a man, fitting the general description the police had previously received of the other participant, appeared at a second story window with a black scarf on his head.  On seeing the police, he came downstairs without the scarf and opened the door.  It was Bethea.  He was taken to the police station for questioning.  On arriving there and before entering, Bethea informed the police that the robbery weapon had been hidden in the apartment of McChan (a relative of his) and went with the police to the apartment. McChan, who had been previously questioned and released as a witness, was at home, and the police, claiming he granted permission, entered the apartment and searched it.  They found the wooden [***10]  part of the shotgun (hereinafter referred to as "the wooden part") concealed behind a cabinet in the kitchen and McChan was arrested forthwith.  When the police inquired of him as to the whereabouts of the other parts of the shotgun, he told them they could have been taken by one of several recent visitors, including Griffin, and directed the police to a nearby garage where they found Griffin asleep in an automobile.  He was also arrested without a warrant.  After their arrest, Griffin and Bethea informed the police that Shelly had participated in one or more of the holdups either as a lookout or as a driver of the automobile they used as a conveyance.  Shelly, as were all other participants, was also arrested without a warrant before the end of the day (January 9, 1964) on which the last crime -- the second holdup of Howard's Liquor Store -- was committed.
All of the appellants, except Jones, made one or more extrajudicial statements to the police either on the day of the arrests or sometime during the two following days.  The Jones statement was made after he was discharged from the hospital a week later.  Besides the oral statement to the police on January 

 [*155]  9 concerning [***11]  the whereabouts of the shotgun used in the holdups, Bethea made three other statements.  In his first written statement, made the same day as the oral statement, he admitted that he was the lookout man at the Ensor Lounge holdup committed by McChan, Griffin and Jones and received a part of the money taken.  In the second written statement made on January 10, Bethea, besides restating his participation in the Ensor Lounge robbery, admitted that he was also the lookout at the holdup of Lou's Liquor Store carried out by McChan, Griffin and Jones.  Bethea made another statement on January 11 but it was not admitted in evidence.  Griffin made two written statements on January 9.  In the first one, he admitted that he participated with McChan and Jones in the holdup of Eddie's Cafe.  In the second statement, he admitted that he also participated in the holdups at Lou's Liquor Store and the Ensor Lounge with McChan, Jones, Bethea and Shelly.  A third statement made by Griffin on January 11 was not admitted in evidence.  Shelly admitted in a statement made on January 10 that he had participated (as the driver of the automobile) in the holdups of Lou's Liquor Store and the Ensor Lounge.  In [***12]  the statement he made on January 11, McChan admitted participating in the holdups of Eddie's Cafe, the Ensor Lounge and Lou's Liquor Store.  He also admitted having possession of the shotgun but claimed it belonged to Jones.  The complete statement made by Jones on January 16 was not admitted in evidence  [**637]  but (by agreement of the parties) three of the five parts of the statement were read into the record.  Therein, Jones admitted his participation in the holdups at Eddie's Cafe, the Ensor Lounge and Lou's Liquor Store.
After the arrest of the appellants, and before some of the statements of the arrestees had been taken, the police entered the rear yard of the premises in which McChan had an apartment, and, without a warrant, searched for and seized the two missing parts of the shotgun, which, when assembled with the wooden part found in the apartment, made a complete shotgun. No part of the shotgun had been recovered when Bethea made the oral statement to the police.  Nor was any part of the weapon exhibited to Jones while he was making his statement.  But the wooden part was shown to Bethea during the taking of 

 [*156]  his first and second written statements; to Griffin [***13]  when he was making his first and second statements; and to Shelly when he was giving his statement to the police.  The reassembled shotgun was exhibited to Bethea and Griffin when they made their last statements and at the time McChan was giving his statement to the police.
Although McChan moved for a severance at the same time he moved for the exclusion of all witnesses, including the three codefendants he intended to call as defense witnesses, the motions were denied and all five defendants were tried together by the lower court (Harris, J.) sitting without a jury.  At the outset of the trial, all appellants moved to suppress all evidence obtained from them after their allegedly illegal arrests and as the result of the alleged unlawful searches for and seizures of the constituent parts of the shotgun. Each of the appellants (on the ground they were involuntarily made) also objected to the admission in evidence of the statement or statements they had given the police after they were arrested.
As to the arrests, the court ruled that there was reasonable grounds or probable cause for the arrest of all appellants, except that of Griffin which it held to be illegal.  As to the searches [***14]  and seizures, the court, finding that the search of the apartment was permissive, held that the seizure of the wooden part was lawful, but it was never offered in evidence.  And the court, holding that the search for and seizure of the other parts of the shotgun without a warrant was unlawful, excluded them as evidence.  As a result none of the tangible evidence seized was ever admitted in evidence.  As to the extrajudicial confessions, the court, finding that Griffin and Bethea had been confronted with the reassembled shotgun during the time they were making their last confessions, ruled that they were inadmissible. Finally, the court, having heard the evidence of the State as well as the appellants concerning the purported voluntary and involuntary character of the other confessions, concluded that they had been freely and voluntarily given and were therefore admissible evidence.
While there are other contentions to be decided when we consider the cases against the appellants separately, it is apparent that the most important questions (which are common to most 

 [*157]  of the cases) concern the legality of the arrests, the lawfulness of the searches and seizures and the admissibility [***15]  of the extrajudicial confessions. We shall therefore examine the applicable law on these points first and apply it to the particular facts of the cases against each of the appellants as circumstances may require.
Concerning the Arrests
The invariable rule is that a police officer without a warrant lacks authority to make an arrest in a felony case unless he has reasonable grounds or probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested had committed the offense.  Murray v. State, 236 Md. 375, 203 A. 2d 908 (1964); Young v. State, 234 Md. 125, 198 A. 2d 91 (1964); Edwardsen v. State, 231 Md. 332, 190 A. 2d 84 (1963); Mulcahy v. State, 221 Md. 413, 158 A. 2d  [**638]  80 (1960). As was pointed out in Young, at p. 129 (as well as in Edwardsen and Mulchay), reasonable grounds or probable cause "exists when the facts and circumstances within the knowledge of the officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious man believing that a felony had been committed." Necessarily therefore, the question as to whether or not a person was lawfully [***16]  arrested depends on the facts and circumstances in each case.
An arrest has been defined as "the detention of a known or suspected offender for the purpose of prosecuting him for a crime." Cornish v. State, 215 Md. 64, 67, 137 A. 2d 170, 172 (1957). As that case points out there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits.  Where there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit.  When one is approached by a police officer and merely questioned as to his identity and actions, this is only an accosting and not an arrest. See also Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125, 131; 5 Am.Jur.2d, Arrest, §  1; 6 C.J.S., Arrest, §  1.

 [*158]  Concerning the Searches and Seizures
There is, of course, no constitutional prohibition against search and seizure: the only requirement is that they must not be unreasonable.  Amendment IV of the  [***17]   Constitution of the United States; Article 26 of the Maryland Declaration of Rights.  Whether or not a search is unreasonable depends on the facts and circumstances in each case and is a question for the courts to decide.  The general rule is that the search of a person or his property without a warrant and the seizure of things which are evidence of the commission of a crime is unreasonable and therefore unlawful.  Buettner v. State, 233 Md. 235, 196 A. 2d 465 (1964); Agnello v. United States, 269 U.S. 20 (1925). But there are well recognized exceptions to the genral rule.  The search of a person without a warrant incident to a lawful arrest is not unreasonable.  Gross v. State, 235 Md. 429, 201 A. 2d 808 (1964). And under some circumstances a search of one's property may be made without a warrant as, for example, when the search is permissive.  Armwood v. State, 229 Md. 565, 185 A. 2d 357 (1962). Moreover, the right of immunity from unreasonable search and seizure is personal and one who disclaims ownership or other possessory interest has no right to protest the legality of a search and seizure. Carter v. State, 236 Md. 450, 204 A. 2d 322 (1964).
Concerning  [***18]   the Extrajudicial Confessions
While two somewhat unusual factors concerning the admissibility of confessions are presented by these cases and must be considered, the ultimate test of admissibility, as it has always been, is still whether or not the confessions were freely and voluntarily made.  Abbott v. State, 231 Md. 462, 190 A. 2d 797 (1963); Bryant v. State, 229 Md. 531, 185 A. 2d 190 (1962); Culombe v. Connecticut, 367 U.S. 568 (1961). In addition to the standard factors as to whether the confessions were the product of force or of a promise, threat or inducement, there are inquiries here as to whether a confession made after an illegal arrest should be excluded as evidence regardless of its voluntary character, and as to whether the presence of unlawfully seized evidence when a confession is taken would preclude its use as evidence.

 [*159]  The first question is not a new one in this Court.  Prescoe v. State, 231 Md. 486, 191 A. 2d 226 (1963) as well as Peal v. State, 232 Md. 329, 193 A. 2d 53 (1963) and Stewart v. State, 235 Md. 210,  [**639]  201 A. 2d 18 (1964), held that an illegal arrest does not in itself render a subsequent confession [***19]  involuntary.  Most recently, in Mefford and Blackburn v. State, 235 Md. 497, 511, 201 A. 2d 824, 831 (1964), it was said that Wong Sun v. United State, 371 U.S. 471 (1963) "was not intended to, and does not, control prosecutions in State courts and that the rule of the Supreme Court *** and that of Maryland remains that the critical test of admissibility of a confession is whether, under all circumstances, it was, in actuality, voluntary." The cases in other jurisdictions, such as State v. Traub, 196 A. 2d 755 (Conn. 1963), cert.den. 377 U.S. 960 (1964) and State v. Jackson, 203 A. 2d 1 (N. J. 1964), are to the same effect.  The second question, as to what effect confrontation with illegally seized evidence has on the admissibility of a confession is a novel one in this Court, but, like the first, the question is one of fact and not a matter of law.  In Fahy v. Connecticut, 375 U.S. 85 (1963), where illegally obtained evidence was held to be prejudicial, the Supreme Court found that the accused should have had an opportunity to show that his admissions were induced by being confronted with illegally obtained evidence.  Fahy, does not, however, compel the [***20]  exclusion of a confession unless it appears that the accused was shown illegally seized evidence and that such confrontation did in fact induce the confession. Voluntariness, therefore, is still the crucial test for determining the admissibility of a confession.
Lastly, the credibility of witnesses is primarily for the trial judge to determine.  And, where the trial judge believes that a confession was freely and voluntarily made, his finding will not be disturbed unless there was a clear abuse of discretion.  Abbott v. State, supra.
The Cases Against McChan
It is the contention of this appellant that the trial court erred in denying his motion for a severance. And, although his motion to exclude witnesses was granted, he also contends that the denial of severance amounted to a denial of his motion to exclude 

 [*160]  witnesses in that the denial of severance prevented the exclusion of three of the codefendants who were his only witnesses.  Other errors are claimed by the refusal of the court to exclude evidence relating to the searches and seizures, his arrest, and the statements and confessions made by himself and the codefendants. The propriety of admitting his [***21]  confession as evidence is also questioned.
Except insofar as they may be indirectly answered elsewhere in this opinion, we need not answer any of the questions presented here other than those concerning severance and the exclusion of witnesses.  As to these it is apparent that the motions for severance should have been granted.  This is so because this appellant was put on trial with his codefendants in four cases in which he was charged jointly with at least two of the other defendants, and in three cases in which he was not charged at all, in violation of Maryland Rule 734.  See Lewis v. State, 235 Md. 588, 202 A. 2d 370 (1964), decided after the trial of these cases below.
We must therefore reverse the judgments of conviction against McChan and remand the cases for new trials.
The Cases Against Jones
This appellant questions the legality of his arrest, the voluntariness of his confession, the sufficiency of the evidence and the absence of counsel at the taking of his confession.
Claiming that the arrest took place when the police officer spoke to him as he was running away from the scene  [**640]  of the attempted holdup and suggested that he retrace his steps, it [***22]  is contended that the officer had neither witnessed a misdemeanor being committed in his presence nor had probable cause to believe that a felony was being or had been committed at the time of the arrest. We think this was no more than an accosting and that the appellant was not placed under arrest until he was taken to the hospital and placed under police guard.  At no time was there a touching and he was never told that he was under arrest. While he may have thought that he was under arrest when he was stopped and returned to the scene at the suggestion of the officer, he was not actually arrested until he was taken to the hospital to be treated for his injuries.  See Cornish v. State, 

 [*161]  supra. We think there was sufficient probable cause for the police officer to believe that a felony had been committed and that the appellant had committed it.  When the officer arrived at the scene, he not only learned of the abortive holdup but observed that the appellant was bleeding in the area of his abdomen as well as from the wound on his head.  This, coupled with the flight of the appellant from the scene of the holdup and the subsequent refusal to say what had happened other [***23]  than to indicate that he had been shot, was ample probable cause for the arrest. Young v. State, supra. The arrest was therefore legal.
We must, nevertheless, determine whether the confession was freely and voluntarily made.  On the day he was released from the hospital, the appellant, who was still in pain, was interrogated at the police station.  The interrogation was begun in an overheated room but this condition was soon remedied.  During the questioning, which lasted about three hours, the police, who were aware that the appellant was uncomfortable because of pain, offered to discontinue the taking of his confession, but the offer was declined and the questioning was continued.  At the preliminary hearing, the interrogating officers testified that they used no force and made no promise or inducement to obtain the confession and denied making a threat to withhold medical treatment until he confessed.  To the contrary, the appellant testified that the officers had kept on with the questioning despite his condition and indicated an intention to continue until he signed a statement.  The appellant was never confronted with the robbery weapon or any part of it while the confession [***24]  was being taken.  Nor was he aware at that time of the fact that some of his codefendants had implicated him in their statements to the police.  On this testimony the trial court found that the confession was voluntary and we cannot say, since there was here no showing that the will of the confessor was so overpowered as to render the confession involuntary, that the finding was clearly erroneous.  Green v. State, 236 Md. 334, 203 A. 2d 870 (1964).
Even without the confession there was ample legally sufficient evidence from which the trial court could have been convinced beyond a reasonable doubt that this appellant had participated in the attempted robbery as well as the prior robbery of Howard's 

 [*162]  Liquor Store.  An employee who had witnessed both crimes identified the appellant as one of the participants in both offenses.  Identification by a single eyewitness is sufficient to convict.  Coates v. State, 232 Md. 72, 191 A. 2d 579 (1963).
The final contention of the appellant that he was not afforded counsel at the taking of his confession has no merit.  He makes no claim, nor does the record indicate, that counsel had either been retained or requested at that time.  [***25]  Furthermore, he was advised of his right to remain silent.  See Mefford and Blackburn, supra. Under these circumstances, Escobedo v. Illinois, 378 U.S. 478 (1964), which he cites as authority for the claim, is not applicable.  The mere fact that an accused was without counsel at the time he made a confession would not of itself render the confession inadmissible.  [**641]  Bagley v. State, 232 Md. 86, 192 A. 2d 53 (1963).
The Cases Against Griffin
The contention of this appellant that his first and second confessions should not have been admitted in evidence has two thrusts.  The first is that since his arrest was illegal his confessions were thereby rendered inadmissible. The second is that his confessions were involuntary and therefore inadmissible.
The trial court found that the arrest was without probable cause and therefore illegal.  At the hearing on the motions to suppress evidence, the court excluded the last (or third) confession of this appellant because it found his confrontation with the fully assembled shotgun (the second and third parts of which had been unlawfully seized) had in fact induced him to make that confession. But the court apparently [***26]  refused to exclude the first and second confessions as evidence because, having found that the seizure of the wooden part of the shotgun was permissive, the appellant (who claimed no ownership or other possessory interest in the shotgun) was without a right to complain about the confrontation.
First, this appellant, relying on Wong Sun v. United States, supra (as well as the dissenting opinion of Chief Judge Brune in Prescoe v. State, supra, and Peal v. State, supra), contends that since his arrest was illegal all "fruits" of the arrest, meaning thereby his first and second confessions, should have been excluded from the evidence as a matter of law regardless of 

 [*163]  their voluntary character.  We disagree for the reason stated in that part of this opinion (on p. 158) concerning the admissibility of extrajudicial confessions.
Secondly, relying on Fahy v. Connecticut, supra, the appellant contends, contrary to the finding of the trial court, that he was induced to confess as a result of having been confronted with the wooden part of the shotgun and a black scarf.  We find nothing in the record to so indicate and he did not specifically so testify.  All that [***27]  the record discloses is that the appellant readily recognized the wooden part of the shotgun and that he cooperated with the police, but there is nothing to indicate whether he was actually induced to confess by the confrontation. Griffin did testify, however, that he signed the confessions because he was told he had been implicated by statements of his codefendants and that if he confessed he would be given concurrent sentences.  This was denied by the police officers and the denial was obviously believed by the trial court.  We think the confessions were voluntary.  See p. 158 of this opinion.
Finally, the fact that this appellant may have been denied the right to telephone a relative, absent a showing that the confessions were not freely and voluntarily given, would not render them inadmissible. Jones v. State, 229 Md. 165, 182 A. 2d 784 (1962).
The Cases Against Bethea
It is the contention of this appellant that his arrest was illegal for want of probable cause and that the subsequently made confessions were therefore inadmissible in evidence.
The claim is that the anonymous telephone call to the police that this appellant was the man who got away after the abortive [***28]  attempt to rob Howard's Liquor Store a second time and the giving of his whereabouts was insufficient probable cause to warrant his arrest. But this overlooks the fact that when the police, who had previously received a general description of the other masked participant and the clothing he was wearing, went to the address given and knocked on the front door, a man with a black scarf on top of his head and otherwise fitting the description of the person they were looking for came to the door.   [**642]  That man turned out to be Bethea.  He accompanied his arrestors to the police station and subsequently admitted his participation 

 [*164]  in the robberies. The trial court found that under all the circumstances the police had probable cause to believe that Bethea had been involved in the attempted robbery and that his arrest was therefore legal.  We agree.  See Young v. State, supra.
In holding the arrest to be lawful we are not unmindful of the recent decision of the Supreme Court in Beck v. Ohio, 379 U.S. 89 (1964), holding that information received from an informer was not in that case sufficient probable cause for arrest. That case, however, is clearly distinguishable [***29]  from this.  There, the police officer had not testified with specificity as to what the informer had actually said and why he thought the information was credible.  Here, the police officer, in addition to fully disclosing what the anonymous caller had said, further testified that on such information and his own subsequent observations he made the arrest.
Having held the arrest to have been lawful, the only remaining question is whether or not the confessions were voluntarily made, and as to this, there was no claim that they were not.  See p. 158 of this opinion.
The Cases Against Shelly
In addition to claiming that his confession should not have been admitted in evidence because the arrest was illegal and because he was confronted with illegally seized evidence, this appellant contends that his confession was obtained as the result of a promise and that the totality of the circumstances rendered the confession inadmissible.
The information received from Griffin and Bethea constituted reasonable probable cause for the police to believe that Shelly had participated in some of the robberies. See Mefford and Blackburn v. State, supra; State v. Jackson, supra. In any event,  [***30]  even if the arrest were illegal, this, as was stated in the cases against Griffin and Bethea, would not in itself preclude the admission in evidence of the subsequent confession, the making of which, under the facts and circumstances, appears to have been a voluntary act.  On the one hand, there was the testimony of the police officers that no promises or inducements were made in order to obtain the confession. On the other hand, 

 [*165]  Shelly testified that he got the impression that he would be allowed to return to the army if he confessed and claims that the police promised to see that he was given that privilege.  While the record shows that Shelly and the police officers discussed his army career, there is nothing to show that an actual promise was made and that he confessed in reliance thereon.  Nor is there anything in the totality of the circumstances to render the confession inadmissible. On the evidence produced, we cannot say that the trial court erred in finding that the confession was voluntary and therefore admissible.  Abbott v. State, supra.
For the reasons stated, the judgments of conviction in the cases against Jones, Griffin, Bethea and Shelly will be [***31]  affirmed.
Judgments against McChan reversed and cases remanded for new trials; the Mayor and City Council of Baltimore to pay the costs.
Judgments against Jones, Griffin, Bethea and Shelly affirmed.  

98 of 138 DOCUMENTS 

BRIS REALTY CO., et al. v. PHOENIX SAVINGS & LOAN ASSN., INC.  

No. 158, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 84; 208 A.2d 68; 1965 Md. LEXIS 631 

March 12, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order affirmed; appellants to pay the costs.  

HEADNOTES:

Master, Referral of Cases to -- Exceptions To Master's Report Must Point Out Particular Error Or Errors -- General Exceptions Not Considered -- Master's Findings Deemed Prima Facie Correct -- Must Show That Master's Findings Of Fact Were Erroneous Or That He Misapplied The Law.  The appellants in the instant case placed certain disputed claims in issue before a special master who made certain final determinations in respect thereto.  As to some of these final determinations, the appellants excepted and the exceptions were heard by the chancellor who overruled them and affirmed the master's findings.  The record showed that the exceptions, as filed by the appellants to the special master's report, were general in form and failed to point out any finding of fact not supported by the testimony before the master, or any law misapplied by him to such facts in arriving at his allowance or disallowance of the respective claims.  The appellants contended that as to matters contained in those parts or paragraphs of the master's report to which they have generally [***2]  excepted, they had the right to present testimony before the court de novo.  The Court pointed out that a master's findings are considered to be prima facie correct, so that when exceptions to a master's report are filed, just as when exceptions to auditor's reports are filed, they should point out the particular error or errors objected to and general exceptions cannot be considered.  One of the purposes of seeking the advice and recommendations of a master or auditor is to conserve the time of the Court.  If claimants had the right to offer new or additional testimony before the court, not only would there be no saving of the court's time but, perhaps, the whole structure of the auditor's and master's report would be worthless, thus requiring a remand and revision.  Therefore, it was held that exceptions to a report of an auditor and master will not be sustained unless his findings of fact from the evidence were clearly erroneous, or unless he misapplied the law to his findings of fact.
Attorneys -- Giving Testimony To Support The Case In Which They Are Engaged -- Generally Looked On With Disfavor, But Testimony Is Admissible -- Information Gained While An Officer  [***3]   Of The Court -- No Abuse In Allowing The Testimony Here.  The appellants in the instant case contended that it was error for the auditor and master to admit the testimony of a witness who, while appearing as one of the attorneys of record for the appellee before the master and after having cross-examined some of the appellants' witnesses, struck out his appearance for the appellee and took the witness stand to testify as the sole witness for the appellee.  The Court stated that while the practice of counsel's giving testimony to support the cases in which they are engaged is looked on with disfavor except in unusual circumstances, such testimony is not inadmissible.  Further, in this case the witness was former assistant to counsel for the court's conservator, and thus his testimony was based upon information gained as an officer of the court.  The Court held that they saw no abuse of discretion in allowing him to testify.
Mortgages -- No Express Agreement By Appellee To Pay Off First Mortgages To The Relief Of Appellants But Court Found An Implied Agreement That Appellants Were To Remain Liable On The First Mortgages.  In the instant case the record showed that there were [***4]  certain refinancings of purchasers under land installment contracts held by the appellants as vendors.  The purchasers were given deeds for the properties and were induced to borrow from the appellee sufficient money by way of a new mortgage to enable the purchasers to pay off existing first mortgages against their properties as well as the balance due appellants on the installment contracts.  The first mortgages had been placed on the properties by the appellants before they sold the properties to the contract purchasers and the sales were not subject to said first mortgages, nor were the purchasers liable for the amounts due under them.  However, they executed the new mortgages and trusted the appellee to properly disburse the proceeds.  The appellee handled the disbursal of funds involved in the refinancing and, instead of paying off the first mortgages, merely continued to pay the amortization payments specified therein and eventually defaulted in meeting even these payments, whereupon the first mortgages were foreclosed and the mortgage sales, bringing less than the balances due, resulted in deficiencies for which the appellants, as mortgagors, were liable.  The appellants claim [***5]  that even if there were not an express promise by the appellee to pay off the first mortgages to the relief of appellants, there was an implied promise to do so.  However, in this case, the master found, from a mass of conflicting and inconsistent testimony on the point, that there was no express agreement on the subject but there was an implied agreement that the appellants were to remain liable on the first mortgages. It was held that this finding was supported by substantial evidence in the record and the chancellor did not err in ratifying the report in this respect.
Contracts -- To Pay Money At A Specified Time -- Breach Of -- Damages -- No Special Circumstances Shown Here Warranting Special Consequential Damages.  The appellants in this case conceded that ordinarily a breach of a contract to pay money at a specified time gives rise to a claim only for the amount due, but contended that where special circumstances are known to both parties from which it might reasonably be assumed that, upon breach, such damages would naturally result, then such special consequential damages are allowable.  The Court stated that the master and chancellor did not find from the record,  [***6]  nor did the Court find, any special circumstances known to the parties that would transform these claimed damages from the category of utter speculation to reality.  It was held that even if the appellants' loss on each property foreclosed might be mathematically calculable, it did not necessarily follow that such loss was occasioned by the appellee's failure to pay the appellants.  

SYLLABUS:

Hearing before a special master in chancery to decide certain claims by the Bris Realty Company, and others, against the Phoenix Savings & Loan Association, Inc.  To some of the master's final determinations, the claimants excepted and from the chancellor's order overruling the exceptions and affirming the master's findings, the claimants appeal.  

COUNSEL:
Eugene Hettleman for appellants.
Herbert H. Rosenbaum for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Keating, J., Associate Judge of the Second Judicial Circuit, specially assigned.  Keating, J., by special assignment, delivered the opinion of the Court.  

OPINIONBY:
KEATING 

OPINION:

 [*88]   [**69]  The appellee, Phoenix, went into conservatorship and then into reorganization under the jurisdiction of the Circuit [***7]  Court of Baltimore City.  Under the plan of reorganization, as ordered by the court, claimants, whose claims against the appellee were disputed by the latter, were directed to place such disputed claims in issue before a special master in chancery who was empowered by the order of his appointment "to take testimony and make a final determination, subject to further orders of this court, on the question of whether such claims should be recognized as legal liabilities of Phoenix." The appellants, who were claimants, pressed their disputed claims before the special master, who heard voluminous testimony and made certain final determinations in respect thereto.  As to some of these final determinations, the appellants excepted and the exceptions were heard by the chancellor who overruled them and affirmed the master's findings.  The appellants assign four grounds of error:
(I). The refusal of the chancellor to permit the appellants to take testimony before him on the exceptions.  The record shows that the exceptions, as filed by the appellants to the special master's report, were general in form and failed to point out any finding of fact not supported by the testimony before the [***8]  master, or any law misapplied by him to such facts in arriving at his allowance or disallowance of the respective claims.
The appellants take the position that as to matters contained in those parts or paragraphs of the master's report to which they have generally excepted, they had the right to present testimony before the court de novo, citing Egerton v. Reilly, 1 G. & J. 385, and Worthington v. Hiss, 70 Md. 172, as authority.  These two cases furnish no such authority.  In Egerton, this Court merely held that the lower court erred in referring a matter to an auditor before preliminary pleadings had brought the case to issue; and in Worthington, the appeal was from a decree remanding a case to an auditor with specific instructions to state an account upon principles laid down in the opinion accompanying the decree. Both sides appealed from the directions given 

 [*89]  to the auditor and no procedural question with respect to testimony either before the auditor or before the court was raised, and nowhere does it appear that the trial court, in hearing exceptions to the auditor's account before its remand, heard any testimony.  The appellants also cite Sewell  [***9]   v. Sewell, 218 Md. 63, for the proposition that a master is not a judicial officer and therefore the court cannot delegate its judicial function to a nonjudicial officer.  The short answer to this is that the Sewell case dealt with testimony taken before an examiner, not a master.  The powers and duties of examiners and masters are not coextensive.  The former merely records testimony for perusal of the court, see Miller, Equity Procedure, p. 262, et seq., whereas the latter, properly called an auditor and master, is an adviser of the court, makes findings, reports to the court and suggests the nature and propriety of the decree. Miller, op. cit., p. 654.
The cases of Maryland Lumber Co. v. White, 205 Md. 180,  [**70]  Pinkston v. Higham, 224 Md. 513, and Alexander v. Hergenroeder, 226 Md. 559, all dealing with reports of masters in chancery, clearly indicate our view that a master's findings are prima facie correct.  When exceptions to auditors' reports are filed, they should point out the particular error or errors objected to and general exceptions cannot be considered.  Miller, op. cit., p. 643; Scrivener v. Scrivener, 1 H. & J.  [***10]  743; Young v. Omohundro, 69 Md. 424. We believe this is equally true of exceptions to a master's report.  One of the purposes of seeking the advice and recommendations of an auditor and master is to conserve the time of the court.  If claimants had the right to offer new or additional testimony before the court, not only would there be no saving of the court's time but, perhaps, the whole structure of the auditor's and master's report would be worthless, thus requiring a remand and revision.  Exceptions to a report of an auditor and master will not be sustained unless his findings of fact from the evidence are clearly erroneous, or unless he misapplies the law to his findings of fact.  Alexander v. Hergenroeder, supra.
(II). That the chancellor erred in affirming the action of the auditor and master in admitting the testimony of Clarence W. Sharp, Esq. The appellants' contention is based on the fact that 

 [*90]  Mr. Sharp, a member of the bar, while appearing as one of the attorneys of record for the appellee, Phoenix, before the master and after having cross-examined some of the appellants' witnesses, struck out his appearance for the appellee and took the witness [***11]  stand to testify as the sole witness for the appellee.
The record shows that Mr. Sharp had gained a thorough and unique knowledge of the voluminous and intricate dealings between the appellants and the appellee, he having acted as an assistant to the counsel for the court's conservator during the period of the appellee's conservatorship; that after the reorganization of the appellee was authorized and the instant proceedings before the master were instituted, the appellee engaged Mr. Sharp, because of his familiarity with the books, records and dealings of the appellee with the appellants, to act as co-counsel in representing its interest; that he assisted in preparing the appellee's answers to certain pretrial interrogatories and sat at the trial table before the master with his co-counsel before the latter became ill, and thereupon did cross-examine some of the appellants' witnesses.  The appellants complain that as he must have known that he was expected to testify for the appellee, it was improper for him to take part in the trial as counsel, citing Snyder v. Hammer, 180 Md. 690 (decision reported without opinion), 23 A. 2d 653, 655 (opinion reported in full), wherein it was [***12]  said "this Court expresses agreement with the chancellor's disapproval of the practice of counsel's giving testimony to support the cases in which they are engaged except when the need of so doing has not been foreseen." While we affirm our pronouncement in Snyder, we point out two things: the practice is looked on with disfavor except in unusual circumstances, but such testimony is not inadmissible, Jones, Evidence (2d ed.), §  754, 58 Am. Jur., Witnesses, §  152; and, in the instant case, Mr. Sharp was former assistant to counsel for the court's conservator, and thus his testimony was based upon information gained as an officer of the court.  We see no abuse of discretion in allowing him to testify.
(III). That the chancellor erred in affirming the master's disallowance of the appellants' claims for certain deficiencies in mortgage foreclosure proceedings.  Without detailing at length the rather complicated dealings between the appellants and appellee, 

 [*91]  it will suffice to point out that there were certain refinancings of purchasers under land installment contracts held by the appellants as vendors.  The purchasers, who were evidently ignorant as to their [***13]  rights, were given deeds for the properties and were induced to borrow  [**71]  from the appellee sufficient money by way of a new mortgage to enable the purchasers to pay off existing first mortgages against their properties as well as the balance due appellants on the installment contracts.  The first mortgages had been placed on the properties by the appellants before they sold the properties to the contract purchasers and the sales were not subject to said first mortgages, nor were the purchasers liable for the amounts due under them.  However, they, no doubt to their sorrow, executed the new mortgages and trusted the appellee to properly disburse the proceeds.  The appellee handled the disbursal of funds involved in the refinancing and, instead of paying off the first mortgages, merely continued to pay the amortization payments specified therein and eventually defaulted in meeting even these payments, whereupon the first mortgages were foreclosed and the mortgage sales, bringing less than the balances due, resulted in deficiencies for which the appellants, as mortgagors, were liable.
The appellants claim that even if there were not an express promise by the appellee to pay [***14]  off the first mortgages to the relief of appellants, there was an implied promise to do so, citing Rosenthal v. Heft, 155 Md. 410, as authority.  The citation is not apposite.  In Rosenthal, this Court held that where a deed reciting a consideration of "$ 5.00 and divers other good and valuable considerations" conveyed certain property "subject to the legal operation and effect" of two specified mortgages, the court could look to the preceding written agreement of sale to find the real consideration; and where the terms of sale showed the total purchase price to have been calculated on the theory that the purchaser would assume and pay the existing mortgages there was an implied promise to do so to the relief of the seller as mortgagor. In the instant case, the master found, from a mass of conflicting and inconsistent testimony on the point, that there was no express agreement on the subject but there was an implied agreement that the appellants were to remain liable 

 [*92]  on the first mortgages. This finding is supported by substantial evidence in the record; we feel that the chancellor did not err in ratifying the report in this respect.
(IV). That the chancellor  [***15]   erred in confirming the master's finding, that the appellants' claim for consequential damages alleged to have resulted from failure of the appellee to pay the appellants various sums of money when due, were too speculative to be allowed.  The foundation for this claim is that if the appellee had made payment of certain alleged claims, when due, the appellant would have had money with which to make payments on various and sundry other mortgage debts which the appellants owed to third parties and which were foreclosed and resulted in losses to the appellants.
The appellants concede that ordinarily a breach of a contract to pay money at a specified time gives rise to a claim only for the amount due, but contend that where special circumstances are known to both parties from which it might reasonably be assumed that, upon breach, such damage would naturally result, then such special consequential damages are allowable.  They cite Strasbaugh v. Steward Sanitary Can Co., 127 Md. 632. The master and chancellor did not find from the record, nor do we, any special circumstances known to the parties that would transform these claimed damages from the category of utter speculation [***16]  to reality.  Even if the appellants' loss on each property foreclosed might be mathematically calculable, it does not necessarily follow that such loss was occasioned by the appellee's failure to pay the appellants.  We see no error by the chancellor in this respect.
For the reasons assigned, the order appealed from must be affirmed.
Order affirmed; appellants to pay the costs.  

99 of 138 DOCUMENTS 

SPACE AERO PRODUCTS COMPANY, INC., et al. v. R. E. DARLING COMPANY, INC.  

No. 191, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 93; 208 A.2d 74; 1965 Md. LEXIS 632; 145 U.S.P.Q. (BNA) 356 

March 12, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Modification of Opinion and for Rehearing Filed April 7, 1965, Rehearing Denied and Per Curiam Opinion on Motion for Modification Filed April 12, 1965.  

PRIOR HISTORY:
Appeal from the Circuit Court for Montgomery County; Pugh, J.  

DISPOSITION:
Order affirmed in part, reversed in part, and case remanded for the passage of an order and for further proceedings if necessary in conformity with this opinion; costs of this appeal to be paid one-half by the appellants in equal shares and one-half by the appellee.  

CASE SUMMARY
 
PROCEDURAL POSTURE: Appellants, former employees of appellee and their new company, sought review of the decision of the Circuit Court (Maryland) that granted an injunction against appellants that enjoined them from using appellee's trade secret in the manufacture of oxygen breathing hoses.
 
OVERVIEW: Appellee filed suit against appellants, former employees and their new company, based on their use of its trade secret in order to directly compete with appellee. The lower court granted an injunction that enjoined appellants from using appellee's trade secret. The court affirmed the injunction in part, reversed and modified in part. The following factors were looked at to establish appellee's trade secret: the extent to which the information was known outside of the business; the extent to which it was known by its employees; the extent of measures taken to guard the secrecy of the information; the value of the information to appellee and its competitors; the amount of effort or money expended in development; the difficulty with which the information could have been properly acquired or duplicated by others. Appellants violated their duty of fidelity and trust owed to appellee by using appellee's trade secret to directly compete with appellee. The injunction was reversed and modified as to the male disconnect since that was not proven to be a trade secret. The injunction will be terminated when and if the public generally knows of the trade secret.
 
OUTCOME: Injunction granted by the lower court was affirmed since appellee proved the existence of a trade secret and also proved appellants violated their duty of fidelity and trust by using appellee's trade secret to directly compete with appellee, but reversed and modified as to the male disconnect since that was not proven to be a trade secret. Injunction will be terminated when and if the public generally knows of the trade secret.
 
CORE CONCEPTS 

Labor & Employment Law : Trade Secrets & Unfair Competition : Trade Secrets
Torts : Business & Employment Torts : Unfair Business Practices
A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.

Civil Procedure : Appeals : Standards of Review : Clearly Erroneous Review
Maryland Rule 886 a provides that, when an action has been tried by the lower court without a jury, the judgment of the lower court will not be set aside on the evidence unless clearly erroneous. If there is substantial evidence to support the lower court's factual conclusion, that finding must be reviewed in the light most favorable to the prevailing party below.

Labor & Employment Law : Trade Secrets & Unfair Competition : Trade Secrets
Torts : Business & Employment Torts : Unfair Business Practices
Even though a process or method may be the subject of a trade secret, a substantial element of secrecy must exist before the owner of the method is entitled to judicial protection. Absolute secrecy is not essential but a substantial element of secrecy must exist so that there would be difficulty in others properly acquiring the information.

Labor & Employment Law : Trade Secrets & Unfair Competition : Trade Secrets
Torts : Business & Employment Torts : Unfair Business Practices
Factors to be considered in determining whether given information is one's trade secret: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Labor & Employment Law : Trade Secrets & Unfair Competition : Trade Secrets
Torts : Business & Employment Torts : Unfair Business Practices
One who discloses or uses another's trade secret, without a privilege to do so, is liable to the other if his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him.

Torts : Business & Employment Torts : Interference With a Contract
Torts : Business & Employment Torts : Unfair Business Practices
When a dispute over trade secrets turns upon whether the wrongdoer has acquired a secret from the employee who has himself acquired it lawfully, the wrong consists in inducing him to break his contract, or to be disloyal to a confidence reposed in him; and in either case it is a species of the tort recognized now for over a century of inducing an obligor to default upon an obligation.

Civil Procedure : Injunctions : Permanent Injunctions
Torts : Business & Employment Torts : Unfair Business Practices
Injunction is a proper equitable remedy to protect the interest of the proprietor of a trade secret against the wrongful use of that secret in breach of a fiduciary duty.

Civil Procedure : Injunctions : Permanent Injunctions
Torts : Business & Employment Torts : Unfair Business Practices
The trade secret is protectable only because of the fiduciary relationship of the disclosuer to the disclosee. Once the secret is public, the confidence would end in any event. An injunction is issued only when damages are not adequate compensation and once a trade secret becomes public, its original owner can no longer be irreparably harmed by the use of the former secret by persons who originally used it wrongfully, because the rest of the world is also using it. 

HEADNOTES:

Appeal -- Appellate Review Of Lower Court's Factual Conclusion And Conclusions Of Law.  If there is substantial evidence to support the lower court's factual conclusion, that finding must be reviewed on appeal in the light most favorable to the prevailing party below.  Conclusions of law based upon the facts, however, are reviewable by this Court.
Trade Secrets -- Oxygen Breathing Hose -- Finding That Plaintiff's "Know-How" In Manufacture Of, Was Subject Matter Of Trade Secret, Held Not In Error -- Holding Did Not Extend To Male Disconnect.  A knowledge of the particular process, method or material which is most appropriate to achieve the desired result may itself [***2]  be a trade secret. In the instant suit the plaintiff sought to enjoin the defendants from using its alleged trade secret in the building of oxygen breathing hoses. The testimony was voluminous and conflicting as to whether plaintiff's methods and processes were unique, and, as a composite result, known only to it, or whether they were generally known and in the public domain.  However, it was held that the evidence supported the finding below that other hose manufacturers in this country had endeavored to produce a hose which would compete successfully with that of the plaintiff's but (at least until 1963) had failed to do so.  And, the Court further held that considering the record as a whole, the trial judge was not in error in his implicit finding that the plaintiff's "know-how" in the manufacture of its hoses was the subject matter of a trade secret. The Court went on to state that this holding did not extend to the male disconnect which attaches to the hose since none of the elements of a trade secret was present in respect to the male disconnect which could be purchased on the open market.
Trade Secrets -- Substantial, Although Not Absolute, Secrecy Must Exist Before  [***3]   Owner Is Entitled To Judicial Protection -- Secret Not Abandoned By Limited Public Publication For Restricted Purpose.  Even though a process or method may be the subject of a trade secret, a substantial element of secrecy must exist before the owner of the method is entitled to judicial protection.  Absolute secrecy is not essential, but there must be a substantial element so that there would be difficulty in others properly acquiring the information.  A trade secret owner, however, does not abandon his secret by a limited public publication for a restricted purpose.
Trade Secrets -- Oxygen Breathing Hose -- Processes And Methods In Manufacture Of, Held To Constitute A Trade Secret.  In determining whether given information is one's trade secret, some of the factors to be considered are: "(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the [***4]  ease or difficulty with which the information could be properly acquired or duplicated by others".  In the present suit to enjoin the use of an alleged trade secret in the building of oxygen breathing hoses, the Court held upon consideration of all the testimony in the light of the applicable legal principles that the owner's processes and methods in manufacturing its hoses (apart from a male disconnect fitting) constituted a trade secret. The Court called attention to a number of factors leading to its conclusions, including the following: the owner had spent years in experimentation and research and approximately a quarter of a million dollars, and the value of the information to the owner gained in developing the hoses was clear.  The owner had undergone extensive growth from a small business in 1948.  The value which the information would have had to the other companies, had they been successful in making a similar type of hose, was evident if only from efforts to duplicate the owner's method.  These methods were known, and indeed had to be known, to some of the owner's employees, including some of the defendants, its former employees. They were also known to another of the [***5]  defendants who previously had sold products to the owner, but under all of the circumstances, the Court found that his knowledge of the process, however complete, did not negate the substantial element of secrecy necessary to the existence of a trade secret. And the testimony, taken as a whole, convinced the Court that the precautions taken by the owner to guard the secrecy of its process under the circumstances were reasonably sufficient.
Trade Secrets -- Former Employees -- Violation Of Duty Of Fidelity And Confidential Relationship.  One who discloses or uses another's trade secret, without a privilege to do so, is liable to the other if his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him.  In the instant suit brought by the plaintiff to enjoin the defendants from using plaintiff's alleged trade secret in the building of oxygen breathing hoses, four of the defendants were former employees of the plaintiff.  The evidence showed that each of them held an important position with the plaintiff in the building of the hoses and they learned all there was to know about the hose business from the plaintiff.  While none [***6]  of the former employees had signed a contract with the plaintiff in which they formally agreed not to use the information acquired by them, and while they were free to leave their employment at will, it was held that the lower court was correct in finding that they owed the duty of fidelity to their employer while they were employed.  The evidence further showed that certain drawings were wrongfully taken from the plaintiff's plant by some of the former employees before they left the company's employ and were then subsequently burned.  The Court stated that the actions of the former employees with respect to the drawings strengthened the conclusion that, in availing themselves of plaintiff's trade secret concerning the manufacture of the oxygen breathing hose, the former employees knew that they were acting wrongfully in violation of their confidential relationship and their duty of loyalty.  Therefore, it was held that the court below properly found that the former employees violated the duty of fidelity and trust which they owed to the plaintiff in respect of the trade secret and that their conduct was such as to entitle plaintiff to the protection of a court of equity.  [***7]  
Trade Secrets -- Supplier Of Materials To Plaintiff Wrongfully Helped Plaintiff's Employees Breach Fiduciary Duty -- Formation Of Competing Company With These Employees -- Supplier Held Liable For Use Of Trade Secret.  In the instant suit brought by the plaintiff to enjoin the defendants from using plaintiff's alleged trade secret in the building of oxygen breathing hoses, two of the defendants had been a large supplier of material to the plaintiff.  The court below found that these defendants illegally entered into a conspiracy to cause certain of plaintiff's former employees to terminate their employment with the plaintiff and enter into the formation of a new company.  It was undisputed that neither of the defendants were under any express contract with the plaintiff in respect to the non-use of the trade secret. Further, there is no question of the right of the supplier to a company to become interested in the formation of another company to which he expects also to sell his supplies.  However, even though the defendants may have had the knowledge and ability to form a competing company on the basis of their own know-how and without the use of any knowledge they may have [***8]  acquired from the plaintiff, it was held that their action in knowingly helping plaintiff's former employees in their illegal action (breaching their duty of fidelity) and the forming of a competing company through the use of plaintiff's trade secret, was sufficient to make them liable to the plaintiff.
Clean Hands Doctrine -- Application Of Is In Court's Discretion -- No Abuse Found In Refusal To Apply Here -- Doctrine Is For The Court's Own Protection.  The clean hands doctrine is one resting in the sound discretion of the court; it is applied, not for the protection of the parties, but for the court's own protection.  In the instant case the court below heard voluminous testimony as to all of the matters raised in connection with the defendants' claim that the plaintiff did not come into court with clean hands but refused to bar the plaintiff from the relief to which the court found it was entitled.  It was held that the court's refusal to apply the doctrine was not an abuse of discretion.
Evidence -- Admission Of Drawings Not Prejudicial -- Cumulalative And Unessential Evidence.  In the instant case the Court found it unnecessary to decide whether certain drawings [***9]  were improperly admitted into evidence for, even if they were, any error in connection with their admission was not prejudicial, since they were merely cumulative and unessential evidence.
Trials -- Taking Of Testimony In Camera -- Where Secrecy Is An Essential Factor Court Has Discretion To Impose Reasonable Conditions On Expert Witnesses Remaining In Courtroom -- Requirement Of Oath Of Secrecy Was Not An Abuse Of Discretion Here.  In the instant case the defendants contended that it was prejudicial error for the lower court to refuse to have several of their expert witnesses present during the taking of testimony in camera unless they took an oath of secrecy as to all the matters testified to.  It was held that there was no abuse of discretion in the trial court's action.  The court noted the general principle that in taking testimony on matters in which, by the nature of the case, such as the one here involved, secrecy is an essential factor, the trial court has discretion to permit expert witnesses to remain in the courtroom only under reasonable conditions imposed to maintain secrecy.
Injunctions -- Trade Secret Case -- Scope Of Injunction -- Conmar Rule Held To  [***10]   Apply -- Subject Matter Of Injunction Was Not Too Broad Here Except That Protection For Oxygen Breathing Hose Was Held Not To Extend To The Male Disconnect Fitting.  In the instant case the lower court permanently enjoined the defendants from using the plaintiff's trade secret in the building of oxygen breathing hoses. There was no provision in the order for the termination of the injunction if and when plaintiff's trade secret became generally known to the public.  The Court stated that the American cases follow two different views as to the scope of an injunction in trade secret cases, these being the Shellmar rule and the Conmar rule.  This Court agreed with the latter.  The reasoning of the Conmar rule is that the trade secret is protectible only because of the fiduciary relationship of the discloser to the disclosee.  Once the secret is public, the confidence would end in any event.  An injunction is issued only when damages are not adequate compensation and once a trade secret becomes public, its original owner can no longer be irreparably harmed by the use of the former secret by persons who originally used it wrongfully, because the rest of the world is also [***11]  using it.  Under this rule, a distinction is made between the use of an injunction to protect proper lawful interests and its use as a penalty.  The Court stated that their conclusion that the Conmar rule should be applied was fortified by the desirability of competition in a field where competition is clearly in the public interest, which was the case here, since the oxygen breathing hoses are important to the national defense. Therefore it was held that the injunction in the case at bar should be modified so that it may be terminated if and when the methods and processes used by the plaintiff in the manufacture of its oxygen breathing hoses become generally known to the public, without contribution in any way to such public knowledge through disclosure by the defendants.  Further, the Court stated they did not agree with the defendants that the injunction should be restricted to the use of the processes rather than prohibiting the manufacture of the product.  Plaintiff's trade secret consists too largely of the ordered relationship and combination of various steps and devices to make a prohibition of specific steps or processes practical.  It was the period of the injunction,  [***12]  rather than its subject matter, which the Court found too broad.  Although the Court did find that the injunction should also be modified so as to exclude from its operation and effect the male disconnect attached to the hoses since the disconnect was not a part of plaintiff's trade secret and was not necessary to the protection of the secret.
Injunctions -- Trade Secret Case -- Defendants Enjoined Who Contributed To Wrongful Use Of Plaintiff's Trade Secret.  An injunction which was issued in this case to protect the plaintiff's trade secret in the building of oxygen breathing hoses was held to extend to two of the defendants who contended that they had the "know how" to build the hose, independently of any knowledge acquired from plaintiff's former employees. The Court stated that plaintiff's interests could not be adequately protected unless they were enjoined.  Further, there was a reasonable inference from the evidence that the practical knowledge which these defendants obtained from their association with the former employees added to the knowledge which they formerly had.  It would be difficult to separate the results of such practical experience from any independent [***13]  knowledge formerly possessed.  The harm to the plaintiff and any hardship of the injunction upon the two defendants sprang from the situation to whose making these defendants wrongfully contributed.
Parties -- Where No Steps Were Taken To Make The United States A Party To The Proceedings Validity Of Injunction Was Not Affected By Absence Of United States As A Party.  In the instant case the defendants' contention that the injunction issued against them was invalid because the United States was not made a party to the proceedings was held to be without merit.  The United States did not ask to be made a party to the proceedings, the plaintiff did not name it as a party defendant, and the defendants did not take any timely steps, in the court below, to have it joined as a necessary party.  The United States had ample notice of the pending litigation, and its failure to apply for joinder as a party was to be accepted as a disclaimer of any rights to that status.
Injunctions -- Which May Adversely Affect Interests Of The United States -- Modification Of -- United States Should Be Afforded A Hearing And Opportunity To Protect Its Interests.  In the instant case, the United [***14]  States had entered into certain contracts and sub-contracts with the defendants.  It was contended that the injunction issued by the court below enjoining the defendants from performing and bidding on contracts with the Navy might have a possible effect on these contracts already entered into.  Therefore, the United States, by its statement as amicus curiae and the supporting affidavit, requested the court below to consider the interest of the government in the scope of the injunction to be entered.  However, the court signed an order denying the petition for modification of the injunction, without hearing, and apparently without affording the United States an opportunity to show, as it had claimed, that the extent of the injunction would have a serious impact upon the Navy's military needs.  The Court stated that courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved.  Therefore, it was held that, in the interest of the national defense, the government must be given the opportunity to show whether all the work required under certain [***15]  necessary contracts had been performed; if not, the scope of the injunction should be limited to permit completion. And the United States must also be accorded the opportunity, by appropriate proceedings in the lower court, to seek further to limit the scope of the injunction to permit the completion of certain other subcontracts, if it is determined that the prohibition of the completion of these subcontracts would have a demonstrable adverse effect on the national defense. Moreover, by a later per curiam opinion the Court also held that the injunction should be further modified to accord the government an opportunity to demonstrate any adverse effect upon the national interest of any prohibition of the completion of any contracts or sub-contracts entered into by the defendants with the government to the date of this Court's opinion.
Trade Secrets -- Injunction Issued Against Defendants -- Should Not Pertain To Their Employees So Long As Employees Work For Companies Not Utilizing Plaintiff's Trade Secret.  In the instant case the plaintiff sought to enjoin the defendants from issuing the plaintiff's trade secret in the building of oxygen breathing hoses. The court [***16]  below granted the injunction. By a subsequent per curiam opinion filed in this case the Court held that this injunction should be modified so as to make it clear that any employees or agents of the defendants (other than the defendants themselves) were not to be prohibited from using their skills and from working for any other company in the manufacture or sale of pressure hose assemblies, if such hose assemblies have a construction different from that used by the plaintiff and if such manufacture or sale does not use the plaintiff's trade secret methods and processes.  

SYLLABUS:

Suit by R. E. Darling Co., Inc., against Space Aero Products Co., Inc., and others, to enjoin the defendants from using the plaintiff's trade secret in the building of oxygen breathing hoses, and for damages.  From the trial court's order granting the permanent injunction and other and further relief, the defendants appeal.  

COUNSEL:
Joseph Sherbow, with whom were Edward F. Shea, Jr., and Rourke J. Sheehan, on the brief, for appellants.
William H. Pattison, Jr., with whom were Simpson & Simpson and Joseph B. Simpson, Jr., on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond,  [***17]  Horney, Marbury and Oppenheimer, JJ.  Oppenheimer, J., delivered the opinion of the Court.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*101]   [**77]  This case involves the question of whether the court below properly enjoined the defendants from using what the appellee claims to be its trade secret in the building of oxygen breathing hoses. It also involves the scope of the injunction granted and other issues in connection with the conduct of the parties and rulings of the trial judge.
The appellee, R. E. Darling Co., Inc. (Darling) was founded as an individual business by Mr. Darling in 1948 and began the business of manufacturing oxygen breathing hoses for aircraft personnel, in Bethesda, Maryland.  In 1950, Mr. Darling 

 [*102]  undertook a research and development program in the course of which small-bore miniaturized, silicone flexible breathing hoses were produced; these hoses were sold to the Douglas Aircraft Company and to the Navy, beginning in 1953; the hoses were the same general type that are now qualified and referred to in certain military specifications. The business was subsequently incorporated.  Four of the defendants below, Joseph A. Jackson; Eugene E. Fasano; Douglas [***18]  L. Creger and William Phillips n1 (sometimes collectively referred to as the former employees) worked for Darling in various capacities.  Each of them had been with Darling for some years; there was no formal contract of employment;  [**78]  each could be discharged by Darling at any time and had the right to leave at any time.

n1 Phillips did not appeal from the orders of the lower court.  At the trial, he testified for Darling.  Phillips had left the employment of Space Aero Products Co., Inc. but was still one of its stockholders.

In the fall of 1960, these men decided to go into business in competition with Darling.  They sought and obtained financial backing from the appellants, Norris Manufacturing Company (Norris) and William Brandenburg (Brandenburg), the president of Norris.  Norris had supplied silicone products to Darling, but in 1959, the officers of Darling had formed the Materials Testing Company to make silicone compound and tubing.  In late 1959 or early 1960, the United States Navy had sent [***19]  a representative to Darling to discuss new proposed specifications for oxygen breathing hoses of certain types of which Darling had been the sole manufacturer and supplier. Thereafter, Military Specification H-22489 was prepared and issued in April, 1960.  Darling began the study and work to qualify hose under the new specifications. On December 14, 1960, the appellant, Space Aero Products Co., Inc. (Space Aero) was incorporated by the former employees, who had resigned from Darling's employ between December 9 and December 23, 1960.  Space Aero commenced business operations in Hyattsville, Maryland, in January, 1961.  The first hose built by it was the same as the Darling hose and was built by some of the same people who had built the hose for Darling.  Space Aero qualified 

 [*103]  its hose under Military Specification H-22489 in the middle of January, 1961; it was submitted to the Navy on February 20, 1961.  Darling did not submit any hoses for qualification under this specification until April 25, 1961.  The Navy accepted Space Aero's hose in May, 1961.
Darling filed its suit on February 27, 1961.  The appellants filed answers denying that the appellee had a cause of action [***20]  against any of them.  No preliminary injunction was issued.  After the protracted taking of testimony, n2 Judge Pugh filed an opinion on May 27, 1964 in which, after reviewing what he regarded as the salient features of the testimony, he found from the evidence that the former employees "learned the know-how to set up a competing business which knowledge was gained by them while in the employ of the plaintiff." He further found that the former employees owed the duty of fidelity and trust to their employer while they were employed and had breached that duty. He found further: "that other hose manufacturers in this Country have endeavored to produce an oxygen breathing hose which would compete successfully with the plaintiff's but had failed to do so despite their knowledge and experience but the defendants were able to do so immediately and within twenty days after the charter was granted to its corporation, all because of the knowledge they had gained during their employment by the plaintiff." Brandenburg and Norris, the court found, had illegally entered into a conspiracy to cause the former employees to cease working for Darling.  Other findings of the lower court will be referred [***21]  to in the discussion which follows.

n2 The trial, held largely in camera, took 38 trial days.  The exhibits of both sides exceeded 150.  The record abstract before this Court consists of over 2000 printed pages.

On June 10, 1964, the lower court entered an order which permanently enjoins and restrains the appellants "from further manufacture and/or sale" of oxygen breathing hoses "of like or similar construction to hose assemblies manufactured to the requirements of United States Military Specification Mil H-22489." The court further ordered the appellants: "to immediately deliver up to this Court for destruction any and all drawings, manuals, documents and other materials in their possession 

 [*104]  which describe or disclose the equipment, components, methods or techniques utilized in the manufacture of those hose assemblies." The defendants were ordered to pay the costs, and the court retained jurisdiction for the purposes of determining Darling's rights to an accounting and for damages.
 [**79]   [***22]  On June 10, 1964, the date of the injunction, the United States filed a statement as amicus curiae, in which it requested the court to consider the interest of the United States in the scope of the injunction to be entered, as set forth in the affidavit of Rear Admiral W. T. Hines, attached to and made a part of the statement.  This affidavit states, in part: "[I]t affirmatively appears that the National Defense interest would be adversely affected in the delay resulting from any inability of Space Aero Products, Co., Inc. to deliver vitally needed products under Contracts N383-85726A, N383-86598A, and ASO-82299A." The United States asked that an injunction in the case should exclude the performance of the contracts referred to in Rear Admiral Hines' affidavit.  On June 17, the appellants filed a petition for modification of the injunction, to which the appellee filed an answer.  On June 30, the court below, without a hearing, signed an order denying the petition for modification.
The appellants appealed both the orders of June 10 and June 30, 1964.  After the appeals, through proceedings in this Court and the lower court, the injunction was stayed upon the giving of a bond for [***23]  damages.
The appellants contend that the evidence did not support a finding that the former employees violated their duty of loyalty and trust in setting up a company to go into competition with Darling; that the evidence did not support findings that the appellee did in fact possess trade secrets or knowledge proprietary to it and that the appellants wrongfully misappropriated such trade secrets or proprietary knowledge; that the broad scope of the injunction was improper; that the evidence required a finding that Darling had "unclean hands" and should therefore be denied the aid of an equity court; and that the lower court committed reversible error in several of its rulings.  We shall consider these contentions in a somewhat different order.

 [*105]  The Existence of a Trade Secret
A trade secret is described in Restatement, Torts, §  757, comment b, as follows:
"A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.  It may be a formula for a chemical compound, a process of manufacturing, treating [***24]  or preserving materials, a pattern for a machine or other device, or a list of customers."

In an excellent treatise by Turner on The Law of Trade Secrets (London 1962), which considers the American as well as the English cases on the subject, the learned author states:
"The subject-matter capable of protection may be an industrial secret like a secret machine, process, or formula, or it may be industrial know-how (an increasingly important ancillary of patented inventions); it may be information of any sort; it may be an idea of a scientific nature, or of a literary nature (such as the plot of a story or the theme of a television series), or it may be a slogan or suggestion for a method of advertising; lastly, the subject-matter may be the product of work, or expenditure of money, or of trial and error, or the expenditure of time.  Secrecy is not necessarily a constituent of a protectable subject-matter, but when it is, different degrees of imperfect secrecy are sufficient in different circumstances to make subject-matter capable of protection." p. 4.
Whether or not there is a trade secret and, if there is, whether its owner will be protected against persons [***25]  accused of using it unlawfully, has been considered in numerous cases in federal and state jurisdictions, and in England, as well as by text writers.  See inter alia the cases cited in  [**80]  Mycalex Corporation of America v. Pemco Corporation, 159 F. 2d 907, 913 (4th Cir. 1947). The legal principles are not in dispute; it is their application 

 [*106]  to the particular facts on which, in general, the decisions turn.
As has been done in other cases, we shall summarize what we regard as the salient facts but will not set them out in such detail as to disclose the alleged trade secret, which it is the purpose of this litigation to protect.  Head Ski Company v. Kam Ski Company, 158 F. Supp. 919 (D. C. Md. 1958). See also annotation, In Camera Trial of Hearing and Other Procedures to Safeguard Trade Secret or the Like Against Undue Disclosure in Course of Civil Action Involving such Secret, 62 A.L.R.2d 509, 530-532, and cases therein cited.  In reviewing the testimony, it is to be remembered that Maryland Rule 886 a provides that, when an action has been tried by the lower court without a jury, the judgment of the lower court will not be set aside on the evidence [***26]  unless clearly erroneous.  Wood v. Wood, 227 Md. 211, 176 A. 2d 229 (1961). If there is substantial evidence to support the lower court's factual conclusion, that finding must be reviewed in the light most favorable to the prevailing party below.  Goodwin v. Lumbermens Mut. Cas. Co., 199 Md. 121, 128, 85 A. 2d 759 (1952). The conclusions of law based upon the facts, however, are reviewable by this Court.  Tyler v. Secretary of State, 230 Md. 18, 20, 185 A. 2d 385 (1962). See Moran v. Moran, 219 Md. 399, 401, 149 A. 2d 399 (1959).
There was substantial testimony on behalf of Darling that its manufacture of the hoses involved approximately thirty different steps.  Admittedly, some of these steps consisted of simple manual operations and the use of devices and uncomplicated machinery which in themselves were known to the industry.  It is not any one of the steps but their selection, order and conjunction which Darling contends is its trade secret. In general, and without going into the details of the testimony, it is the application of the silicone rubber to produce the desired result which Darling claims is its own unique secret, based on research and experimentation [***27]  and embodying the result of years of trial and error before the requisite "know-how" was achieved.  It is the requisite strength and delicacy of the oxygen breathing hose for pilots which necessitates the numerous methods and techniques which Darling has used.

 [*107]  The court below referred to Darling's "know-how." A knowledge of the particular process, method, or material which is most appropriate to achieve the desired result may itself be a trade secret. Head Ski Company v. Kam Ski Company, supra, 158 F. Supp. at 923; Manos v. Melton, 358 Mich. 500, 100 N. W. 2d 235 (1960); By-Buk Company v. Printed Cellophane Tape Company, 163 Cal. App. 2d 157, 329 P. 2d 147 (1958); cf.  Mycalex Corporation of America v. Pemco Corporation, 64 F. Supp. 420 (D. C. Md. 1946) affirmed 159 F. 2d 907. See Turner, op.cit., at 35-37.
One of Darling's witnesses, Rothermel, a chemical engineer experienced in the manufacture of flexible hose, had been employed by the Dayton Rubber Company from 1936 until 1960.  He became a technical superintendent of one of the plants of the Dayton Rubber Company (now the Dayco Corporation); later he became Vice-President and General Manager of [***28]  Strato Safety, a wholly owned subsidiary of Dayton Rubber Company in California.  From September 1, 1958 until February 1, 1960, his one assignment was to produce hose that was equivalent or equal to Darling's hose, which would be accepted by the customers on an equal basis.  Rothermel was directed by the president of the Dayton Rubber Company; he had the full facilities of the laboratory and the knowledge of the suppliers of that company and could draw on all of its equipment.  To the best of Rothermel's knowledge, Darling was the sole manufacturer of the hose here in question in 1956 and thereafter; hose of that type, as far  [**81]  as he knew, was not built by anyone other than Darling.  He had hoses manufactured by Darling but, in his opinion, it was not possible to produce the hose by just having a sample of it, except, perhaps, after several years of trial and error.  He did not have Military Specification H-22489 at the time he was working to reproduce the Darling hose, although he had the specifications within the three months prior to trial, but, in his opinion, he could not have produced the hose even if he had had the specifications. There was other testimony to the [***29]  effect that these specifications only gave the details of the particular results which were required in the oxygen breathing hose and did not explain how those results were to be obtained.  Rothermel testified further that he had difficulty 

 [*108]  in finding proper silicone rubber compound, in putting in communication wires and other matters necessary for the proper manufacture of the desired product.
Opper, a witness called for the defendants, was employed by the Dayco Corporation since 1950; from 1959 he has been manager for the Strato Safety Equipment Division; he worked for several years on oxygen breathing hose and obtained a contract from the Navy for the building of small-bore hose from the Military Specification H-22489 on June 7, 1961, although the company did not qualify until April of 1963.  The hoses produced under Opper's direction had different dimensions from those made by Darling and Space Aero but the specifications under which the Strato Safety hose was manufactured were identical.
The appellants contend that Rothermel chose to duplicate the Darling hose unassisted and, as a result, the compound he used refused to stay in place.  They produced experts of their [***30]  own, including Muller, Director of Engineering of H. K. Porter Company, one of the largest industrial manufacturers in the country, who visited the Space Aero plant and testified that each of the elements he saw and the manner in which each step was being performed were substantially the same as one or another of the processes with which he had been familiar in the industry.  The defendants also offered Professor Charles Alfred Shreeve, head of the mechanical engineering department of the University of Maryland, an expert in mechanical engineering.  He testified to the same effect as Muller and stated further that the trade secrets he heard described by Mr. Darling on the stand were neither new, novel nor unknown but were all obvious mechanical processes.  Darling contends that Muller was unable to recall or describe much of the equipment and many of the process steps utilized at Space Aero; and that Shreeve could not remember many steps and techniques used in the Space Aero process.  None of the appellants' expert witnesses, other than Brandenburg, testified he could have reproduced the Darling hose without having seen it in actual manufacture.
Brandenburg, a research chemist and [***31]  manufacturer of silicone products, testified he was thoroughly familiar with the Darling hose building process, which he had helped develop, 

 [*109]  and that each of the steps was common knowledge in the industry.  He admitted, however, that there were no other companies building the hose.
The finding of the court that other hose manufacturers in this country have endeavored to produce an oxygen breathing hose which would compete successfully with Darling's but (at least until 1963) have failed to do so, is clearly supported by the testimony.
The testimony as to whether Darling's methods and processes were unique, and, as a composite result, known only to it, or whether they were generally known and in the public domain, is voluminous and conflicting.  The record, as a whole, convinces us that the trial judge was not in error in his implicit finding that Darling's "know-how" in the manufacture of its hoses was the subject matter of a trade secret.
 [**82]  This holding does not extend to the male disconnect, referred to at length in the evidence.  This disconnect is attached to the hose, and is fitted to a female connector in the plane which leads to the oxygen supply.  The [***32]  testimony shows that the drawings of the male disconnect, bearing standard military specification numbers, were originally obtained from Douglas Aircraft Company, which had developed them, and then recopied under Darling's name.  The disconnect could be ordered as a complete unit merely by using the military specification and order numbers.  Several companies listed these numbers in published catalogues.  The male disconnect shown in the drawings can be purchased on the open market.  Darling shortened the part as shown in the drawings by half an inch, added some knurling and rounded the end of the insert portions.  These changes are visible on inspection of the part.  None of the elements of a trade secret is present in respect of the male disconnect, nor does the testimony support any design rights of Darling therein.  A trade secret as to the manufacture of the hoses themselves can exist apart from the disconnect attached to them.
Even though a process or method may be the subject of a trade secret, a substantial element of secrecy must exist before the owner of the method is entitled to judicial protection.  Absolute secrecy is not essential but a substantial element of secrecy [***33]  

 [*110]  must exist so that there would be difficulty in others properly acquiring the information.  Mycalex Corporation of America v. Pemco Corporation, 64 F. Supp. 420, 423 (D. C. Md. 1946); Excelsior Steel Furnace Co. v. Williamson Heater Co., 269 Fed. 614, 616 (6th Cir. 1920); Turner, op. cit., 71-98; Callmann, Unfair Competition and Trade-Marks, §  53.3 (e); Ellis, Trade Secrets, § §  26, 53.  A trade secret owner, however, does not abandon his secret by a limited public publication for a restricted purpose.  Abernethy v. Hutchinson, 1 H. & T. W. 28, 3 L.J. (o.s.) (Ch.) 209 (1824).
The Restatement sets forth some factors to be considered in determining whether given information is one's trade secret. These factors are: "(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information [***34]  could be properly acquired or duplicated by others." Restatement, Torts, §  757 b.
The testimony was uncontradicted that the Darling process was the result of years of experimentation and research; approximately a quarter of a million dollars went into the development of the processes and methods.  The value of the information gained in the development of the hoses to Darling is clear.  From a small business in 1948, Darling has grown to a point where in excess of two hundred persons are employed and where it is manufacturing one hundred or more different types of hoses, with a gross of nearly five million dollars a year.  The value which the information would have had to other companies, if they could have been successful in making a similar type of hose, is evident if only from the efforts of Dayco Corporation which tried for years to duplicate the Darling method and, despite its resources, was unsuccessful until 1963.
The Darling methods were known, and indeed had to be known, to some of its employees, including its former employees who formed Space Aero.  The extent of measures taken by Darling to guard the secrecy of the information is in dispute.  As 

 [*111]  evidence [***35]  of the requisite secrecy, Darling points to the testimony that, during the initial stages of the development of the hoses, the activities and process were kept secret even from Darling's employees.  The Instruction Guide issued for training, offered  [**83]  in evidence, states that the methods and processes and the manner in which materials were used must be considered as trade secrets, and that to divulge this information to any individual outside of the company would provide others with knowledge and information detrimental to the existence of the company.  A lock box was maintained in the plant for blueprints and a list of authorized personnel with keys was carefully maintained.  The training of the company's employees was in a separate area and, according to Darling's witnesses, the trainees were frequently told that the company had processes of which no one else in the world knew.
The appellants' testimony presented a quite different picture.  A former supervisor testified that she and other employees were never cautioned to hold the method of manufacture in confidence. The mutable Phillips testified that, while he knew there was no one else in the United States making hoses [***36]  in a method similar to that of Darling, he did not recall being admonished not to discuss the product.
The Darling methods were also known to Brandenburg who, through Norris, was involved in Darling's business.  Norris did not manufacture oxygen breathing tubes, but its sales of its silicone products to Darling increased from a volume of a few hundred dollars in 1953 or 1954 to about three hundred thousand dollars in 1960.  During the years of the relationship, Brandenburg made many visits to the Darling plant, and testified that he was familiar with each step of the process of making the hoses and had been of material help in the entire development.  On the latter point, however, there was conflicting testimony on behalf of Darling, to the effect that Brandenburg had only been consulted in the area of the compounds which he furnished.  Judge Pugh, in his opinion, while making no express findings of fact, referred to the evidence that Brandenburg had full and complete knowledge of the operation of the Darling plant and that, independently of this knowledge, Brandenburg had the know-how to build the hose. Whether or not the 

 [*112]  testimony would have justified a finding to this [***37]  effect, the relationship of the parties is pertinent.  Darling and Norris were working together, as manufacturer and supplier, in what was, to some extent at least, a joint enterprise.  Brandenburg testified, in answer to a question by the court, that it was not the policy of his company to "go around telling other people what some one else is doing." "There was a certain amount of ethics involved." By Brandenburg's own testimony, there was some element of confidence and trust in the relationship.  Under all the circumstances, Brandenburg's knowledge of the process, however complete, did not negate the substantial element of secrecy necessary to the existence of a trade secret. Saco-Lowell Shops v. Reynolds, 141 F. 2d 587 (4th Cir. 1944); International Industries v. Warren Petroleum Corp., 99 F. Supp. 907 (D.C. Del. 1951). See Chun King Sales v. Oriental Foods, 136 F. Supp. 659, 662 (D.C. S.D. Cal. 1955). Cf.  Mycalex Corporation of America v. Pemco Corporation, 159 F. 2d 907 (4th Cir. 1947); and Messler v. Knapp Bros., 52 F. Supp. 812 (D.C. Mass. 1942).
There was much testimony as to tours through the plant and particularly as to a public demonstration of hose-building [***38]  for the Greater Washington Industrial Council, during which small groups of guests were given demonstrations of hose-building and other techniques.  The appellants point, inter alia, to the testimony that two overhead garage doors to the street were left open and that workers were free to have visitors while they were assembling the hose.
Darling's plant was located not in one of the country's great industrial centers, but in a relatively small, if growing community.  The testimony, taken as a whole, convinces us that Darling took precautions to guard the secrecy of its process which, under the circumstances, were reasonably sufficient.  In its particular community and environment, it may well be that Darling considered  [**84]  that too elaborate efforts at concealment would call attention to what was being concealed, as in Poe's "Purloined Letter." In any event, as the lower court emphasized in its opinion, no one else succeeded in making hoses according to the Darling process.  Until the formation of Space Aero by Darling's former employees, Darling's efforts at secrecy, like the process itself, met the basic criterion of success.

 [*113]  Upon consideration of all the [***39]  testimony in the light of the applicable legal principles, we are convinced that Darling's processes and methods in manufacturing its oxygen breathing hoses (apart from the male disconnect fitting) constituted a trade secret.
The Liability of the Former Employees
The development of the law of trade secrets is a result of balancing two conflicting elements essential to our society.  There is a strong policy favoring free competition; an employee is entitled to use the skill and knowledge of his trade or profession which he has learned in the course of his employment, for the benefit of himself and the public, if he does not violate a contractual or fiduciary obligation in doing so.  C-E-I-R, Inc. v. Computer Corporation, 229 Md. 357, 366, 183 A. 2d 374 (1962); Ritterpusch v. Lithographic Plate Service, Inc., 208 Md. 592, 595, 119 A. 2d 392 (1956); Restatement, Torts, § §  708 and 757, comment a; Herbert Morris Ltd. v. Saxelby, 1 A.C. 688 (1916); Sir W. C. Leng & Co. v. Andrews, 1 Ch. 763-777 (1909). On the other hand, in order to promote the progress of science and the useful arts, the law provides certain protections to an originator.  Among these protections [***40]  are the patent and copyright statutes and the law of torts prohibiting unfair competition.  The law protecting trade secrets is another protection.
The basis of the law as to trade secrets, apart from breach of contract, is abuse of confidence or impropriety in the means of procurement.  Justice Holmes stated the legal principle in Du Pont Powder Co. v. Masland, 244 U.S. 100 (1917), as follows:
"The word property as applied to trade-marks and trade secrets is an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith.  Whether the plaintiffs have any valuable secret or not the defendant knows the facts, whatever they are, through a special confidence that he accepted.  The property may be denied but the confidence cannot be.  Therefore the starting point for the present matter is 

 [*114]  not property or due process of law, but that the defendant stood in confidential relations with the plaintiffs, or one of them.  These have given place to hostility, and the first thing to be made sure of is that the defendant shall not fraudulently abuse the trust reposed in him.  It is the usual incident [***41]  of confidential relations.  If there is any disadvantage in the fact that he knew the plaintiffs' secrets he must take the burden with the good." 244 U.S. at 102.

The Restatement summarizes the doctrine enunciated in the case law as follows: "One who discloses or uses another's trade secret, without a privilege to do so, is liable to the other if *** (b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him." Restatement, Torts, §  757.  See also Carter Products, Inc. v. Colgate-Palmolive Co., 130 F. Supp. 557, 571-75 (D. C. Md. 1955).
Judge Pugh points out in his opinion that the uncontradicted evidence shows that each of the former employees was an employee of Darling from November 1, 1956 to the month of December, 1960, and that each of them had an important position with the plant in the building of oxygen breathing hoses. After setting forth the nature of  [**85]  their assignments, Judge Pugh states that "in their respective positions these defendants knew the hose business, each having learned all there was to know from the plaintiff." He then stated:

"While in the employ of the [***42]  plaintiff, the defendants at the instigation of Jackson, discussed going into the hose business from September, 1960, to early in December, 1960, and such discussions led to the making of plans, financial and otherwise, to go in the business of manufacturing the same kind of oxygen breathing hoses manufactured by the plaintiff.  The incentive to go in business was to submit bids to the United States Navy under its Military Specification H22489, which was open to the public in the month of April, 1960.  All individual defendants knew of the existence of this Military Specification which came to the knowledge of 

 [*115]  the individual defendants who were employees of the plaintiff by virtue of their employment with the plaintiff.  *** It was only twenty-nine (29) days after the charter was granted to the defendant corporation when it submitted a hose to the Navy on February 20, 1961.  The rapidity with which this was done is only attributable to the fact that the individual defendants, except William Brandenburg and Norris Manufacturing Company, had gained the knowledge to set up a business and manufacture the hose under the military specifications, which came to their knowledge [***43]  while they were employed by the plaintiff."

The processes used by Space Aero were the same as those used by Darling.  While Darling did not qualify under the military specification until several months after Space Aero had submitted its hose to the Navy, Darling contends that information which would have accelerated Darling's qualification had been obtained by Jackson, one of the appellants, while still in Darling's employ, and was intentionally withheld and secreted by him.  This claim is disputed by the appellants, but, in any event, the dispute on this issue goes to whether or not Darling is entitled to damages for loss on the Navy contracts by reason of the appellants' breach of their duty of fidelity, and not to whether that duty had been violated.  The testimony amply supports the findings of fact of the court below.
While none of the former employees had signed a contract with Darling in which they formally agreed not to use the information acquired by them, and while they were free to leave their employment at will, Judge Pugh found that they owed the duty of fidelity to their employer while they were employed.  We agree.  C-E-I-R, Inc. v. Computer Corporation, supra [***44]  , 229 Md. at 366; Ritterpusch v. Lithographic Plate Service, Inc., supra, 208 Md. at 602. That C-E-I-R and Ritterpusch involved the improper solicitation by employees of their employer's customers, rather than the improper use of the employer's trade secret, does not make the principle for which those cases stand less applicable.  It is the breach of the confidential relationship rather than the form which that breach takes which is determinative.

 [*116]  Much of the testimony concerned the taking of various drawings and other material from Darling's plant by some of the former employees before they left the company's employ and the subsequent steps taken by Darling to endeavor to gain repossession of the drawings. The court below found as a fact that some of the former employees had in their possession, after leaving Darling's employment, certain sketches of oxygen breathing hoses which they had taken while they were employed by Darling, without Darling's knowledge.  One of the former employees, Jackson, instructed his wife over the telephone, when he was in California after severing his connection with Darling, to burn the drawings in his possession in his home.  [***45]  Wilkinson, another former employee, burned some  [**86]  of the drawings which Jackson had given him.  The court below also found that there were some of Darling's drawings on the drawing-board in the home of another of the former employees which were copies of Darling's drawings. Judge Pugh found that it was doubtful as to whether or not the drawings were in fact the drawings of Darling, but that the evidence clearly showed they were in fact Darling's property.  During the argument of this appeal, counsel for the appellants admitted that the taking of these drawings was wrongful. n3 Judge Pugh also found that other records of Darling's, such as copies of its Security and Quality Control Manuals, were in possession of some of the former employees after they had severed their employment.  The testimony strongly indicates that all the drawings to which reference has been made were in effect public property or were drawings or copies thereof sent to Darling by the Douglas Aircraft Company.  The appellee does not contend it had trade secrets in these drawings. The testimony does not show, in our opinion, that these drawings were necessary for the production of the oxygen breathing [***46]  hose by Space Aero and the individual appellants, or the securing of the Navy contracts.  As Judge Pugh infers in his opinion, however, the actions of the former employees in respect of the drawings strengthens the conclusion 

 [*117]  that, in availing themselves of Darling's trade secret concerning the manufacture of the oxygen breathing hose, the former employees knew that they were acting wrongfully in violation of their confidential relationship and their duty of loyalty.

n3 It was stated without contradiction that these acts by some of the former employees took place before they were represented by counsel.

We agree with the court below that the former employees violated the duty of fidelity and trust which they owed to Darling in respect of the trade secret and that their conduct was such as to entitle Darling to the protection of a court of equity.
The Liability of Brandenburg and Norris
The evidence is undisputed that Norris, through Brandenburg, its president, had conferred with the former employees [***47]  before they left Darling's employment and that Brandenburg advanced $ 1000 towards the formation of the new enterprise, a few days before the lease for the Space Aero plant in Hyattsville was entered into.  Additional advances or investments totalling $ 7000 were made in 1960, and still further advances were made in the first months of 1961 totalling in excess of $ 90,000.  Norris now owns 49% of Space Aero's stock.
The judge below excepted Brandenburg and Norris from his finding that the defendants could not have gone into a competing business without the knowledge gained at Darling's plant. He found, however, that Brandenburg and Norris, through Brandenburg as its president and agent, illegally entered into a conspiracy to cause the former employees to terminate their employment with Darling.
The appellants contend that the former employees had decided to leave Darling whether or not Brandenburg and Norris gave them financial backing.  They contend further that Brandenburg had independent knowledge in respect of the manufacture of the hose by the process used by Darling.  It is undisputed that neither Brandenburg nor Norris was under any express contract with Darling in respect [***48]  of the hose process.  It is also undisputed that while Norris had been a large supplier of material to Darling, Norris and Brandenburg were apprehensive that the subsidiary being formed by Darling might take away much of Norris' sales to the parent company.
There is no question of the right of a supplier to a company to become interested in the formation of another company to 

 [*118]  which he expects also to sell his supplies.  Neither Norris nor Brandenburg was under  [**87]  an express contractual obligation to Darling in respect of the non-use of Darling's trade secret. We do not reach the question of whether Brandenburg and Norris were liable to Darling for the breach of an implied agreement. n4 We agree with the court below that by their actions in respect of the former employees and the formation of Space Aero as a competing company for the procurement of Navy contracts under the Military Specification H-22489 through the use of Darling's trade secret, Brandenburg and Norris became liable to Darling.

n4 See cases cited at page 112 of this opinion.

 [***49]  
In Conmar Products Corp. v. Universal Slide Fastener, 172 F. 2d 150 (2d Cir. 1949), Chief Judge Learned Hand enunciated the principle which we believe is here applicable:
"Courts have been accustomed to speak of trade secrets as 'property,' and at times to deal with them as if they were.  That may be permissible and to some extent desirable, when the question is whether the wrongdoer has got access to them by some wrongful means, like breaking into a factory, or copying formulae or blue prints.  When, however, the dispute turns, as it does here, upon whether the wrongdoer has acquired a secret from the employee who has himself acquired it lawfully, the wrong consists in inducing him to break his contract, or to be disloyal to a confidence reposed in him; and in either case it is a species of the tort -- recognized now for over a century -- of inducing an obligor to default upon an obligation." 172 F. 2d at 155.

See also McKinzie v. Cline, 197 Ore. 184, 252 P. 2d 564 (1953); Restatement, Torts, §  757, Comment on Clause (a) h.
The evidence amply sustains the finding of the court below that Brandenburg and Norris encouraged the former employees to do what they [***50]  did do while they were still in Darling's employ.  Even though Brandenburg and Norris may have had the knowledge and the ability to form a competing company on the 

 [*119]  basis of their own know-how and without the use in any way of any knowledge they may have acquired from their dealings with Darling, what they did was knowingly and for their own interests, to help the former employees in their illegal action.  This was sufficient to make them liable to Darling.  See Knickerbocker Co. v. Gardiner Co., 107 Md. 556, 559-60, 69 Atl. 405 (1908); and Restatement, Agency, §  312 comment d.
The Contention of "Unclean Hands"
The appellants contend that Darling acted improperly in procuring a search warrant and in having the police department of Montgomery County enter the home of Wilkinson, one of the former employees, and take from his home certain drawings, when no criminal charge had been filed against Wilkinson.  They also contend that Darling improperly harrassed Brandenburg by having a number of detective agencies calling his family and business associates, and in other ways.  They argue further that Darling acted improperly in sending over one hundred letters to [***51]  various concerns asking if they were doing business with Space Aero.  They object to meetings between officers of Darling and the defendant, Phillips, during the trial; and claim that Darling lacked the required candor before the lower court.  Because of these actions, the appellants claim that Darling's suit should have been dismissed because it did not come into court with clean hands.
In the argument on this appeal, counsel for the appellants admitted that some of Darling's drawings were improperly taken by various of the former employees while they were still in Darling's employ.  The question of whether or not the search of Wilkinson's house on the warrant obtained by Darling was legal or illegal does not go  [**88]  to any of the issues which, in our opinion, are determinative of this case.  The various telephone calls and correspondence to which the appellants object were not on their face unreasonable in the protection of what we have found to be Darling's legal interest in its trade secret.
During the trial, Phillips, one of the defendants below who has not appealed, called Darling's counsel for the purpose of arranging a meeting with one of Darling's principals.  The [***52]  meeting took place without the presence of counsel for either side 

 [*120]  and without the knowledge or consent of Phillips' counsel.  According to Phillips, it was at this meeting that he turned over certain physical evidence to Darling and agreed to state the true facts when called as a witness.  At the trial, Phillips gave testimony inconsistent with his pre-trial deposition and, with the court's consent, counsel struck their appearance for Phillips and proceeded to attempt to impeach his testimony.  Irrespective of the impropriety of an attorney arranging a meeting between parties to pending litigation without notice to other counsel of record, n5 it was for the trial court, sitting without a jury, to determine for itself the credibility of Phillips' testimony on the witness stand, and, in so doing, to consider what had taken place before the testimony was given.

n5 Witnesses do not belong to either side of the controversy; they can be interviewed by counsel for any party, in civil as well as in criminal cases.  See State v. Papa, 32 R. I. 453, 80 Atl. 12, 15 (1911) and Mathews v. State, 44 So. 2d 664 (Sup. Ct. Fla. 1950). When a witness is also one of the parties, however, and is represented by counsel, a lawyer for the other side should not in any way communicate with him without the knowledge and consent of the party's own counsel.  See Canon 9, Canons of Professional Ethics of the American Bar Association and Drinker, Legal Ethics, p. 201.

 [***53]  
The clean hands doctrine is one resting in the sound discretion of the court; it is applied, not for the protection of the parties, but for the court's own protection.  Niner v. Hanson, 217 Md. 298, 309, 142 A. 2d 798 (1958). Thomas v. Klemm, 185 Md. 136, 142, 43 A. 2d 193 (1945). The court below heard voluminous testimony as to all of the matters raised in connection with this issue and refused to bar Darling from the relief to which the court found it was entitled.  We do not find that the court's refusal to apply the doctrine was an abuse of its discretion.
Objections to Rulings of the Court
The appellants contend that three of Darling's exhibits were improperly admitted in the trial below over timely objection.  These exhibits were drawings obtained by the Montgomery County police as a result of the search and seizure to which reference has been made.  The court below granted the appellants' motion to exclude the drawings as to Wilkinson but denied 

 [*121]  the motion as to the other appellants.  We do not find it necessary to decide whether or not these exhibits were improperly admitted for, even if they were, any error in connection with their admission was [***54]  not prejudicial.  We have found that the drawings were not part of Darling's trade secret but they were Darling's property and several of the former employees admitted on the stand that the drawings had been taken before the employees had terminated their employment.  The impropriety of the taking of the drawings was admitted by the appellants' counsel.  Apart from the drawings themselves, the circumstances under which they were taken was admissible evidence which tended to show that the former employees meant to breach their confidential relationship and duty of loyalty in improperly using Darling's trade secret to compete with it.  The court below found that the drawings were of use to the defendants in setting up their competitive business, but there was ample testimony other than the actual drawings which supported this finding.  The introduction of the drawings themselves was only cumulative and unessential.
 [**89]  The appellants also contend that the lower court committed prejudicial error in refusing to have several of their expert witnesses present during the taking of testimony in camera unless they took an oath of secrecy as to all the matters testified to.  Darling,  [***55]  at all times, claimed that its manufacturing process was a trade secret. The court stated that "by the very nature of the case secrecy is an essential factor." Maryland Rule 546 provides that the court may on its own motion exclude witnesses other than parties from the courtroom until called upon to testify, but excludes from the operation of the Rule an expert witness who is to render an opinion based on the testimony given at the trial.  This Rule, however, is not a contravention of the general principle that in taking testimony on matters in which, by the nature of the case, such as the one here involved, secrecy is an essential factor, the trial court has discretion to permit expert witnesses to remain in the courtroom only under reasonable conditions imposed to maintain secrecy. Annot., supra, 62 A.L.R. 2d 509, at pages 513-525 and 527-529 and cases therein cited.
At the trial, the court suggested that the expert witnesses 

 [*122]  take an oath of secrecy similar to the oath of secrecy the Grand Jury takes.  One of the appellants' witnesses, Shreeve, took the oath and remained during the in camera proceedings.  Other expert witnesses of the appellants, because of [***56]  their positions, refused to take the oath.  As to these witnesses, the appellants proceeded by asking them what they had seen at the Space Aero plant and whether those methods were generally known.  It is true that, from the appellants' point of view, it would have been preferable if they could have had all of their experts present during the in camera proceedings; their witness, Shreeve, who took the oath of secrecy, was so present.  The other witnesses, however, testified from their examination of the processes and methods used at the Space Aero plant that these methods and processes were virtually the same as those used by Darling.  The fact that the appellants' expert witnesses, other than Shreeve, because of their employment, felt they could not take the oath of secrecy, is understandable but of itself did not give the appellants the right to have those witnesses present during the in camera proceedings without taking the oath.  The trial court was of the opinion that to permit these witnesses to attend the in camera proceedings without taking the oath might seriously prejudice Darling's rights.  For the same reason, the court refused to permit the appellants' counsel [***57]  to review the in camera testimony with the experts who had been excluded.  Under all the circumstances, we can not find that these rulings constituted an abuse of discretion.
The Scope of the Injunction
The order of the lower court, filed June 10, 1964, permanently enjoins the former employees, Space Aero, Brandenburg and Norris from further manufacture or sale of high or low pressure hose assemblies utilized in oxygen, air and pressure suit systems of like or similar construction to hose assemblies manufactured to the requirements of United States Military Specification H-22489, and from advising any person, firm or corporation as to the means for or method of manufacture of such hose assemblies.
There is no provision in the order for the termination of the injunction if and when Darling's trade secret becomes generally 

 [*123]  known to the public; nor is there any provision with reference to the interest claimed by the United States in the scope of the injunction.
Injunction is a proper equitable remedy to protect the interest of the proprietor of a trade secret against the wrongful use of that secret in breach of a fiduciary duty. Franke v. Wiltschek, 209 F.  [***58]  2d 493 (2d Cir. 1953); Restatement, Torts, §  757 (e); Callmann, op.cit., §  59.1; note, Protection and Used Trade Secrets, 64 Harv. L. Rev. 976, 982 (1951). The authorities differ, however, as to whether an  [**90]  injunction issued to protect a trade secret should terminate after the secrecy ends.
The sixth and seventh Federal Circuit Courts of Appeals hold that, once a person has obtained a disclosure through a breach of confidence while the disclosure was still secret, contrary to the obligations of a confidential or contractual relationship, he cannot thereafter use the subject matter of the disclosure which he has wrongfully used, even though members of the public can do so.  Shellmar Products v. Allen-Qualley Co., 87 F. 2d 104 (7th Cir. 1936) cert. denied 301 U.S. 695; A. O. Smith Corp. v. Petroleum Iron Works Co., 73 F. 2d 531 (6th Cir. 1934). These cases deal with information subsequently patented but the rationale has been applied to trade secret cases, even where no patent is involved.  The doctrine enunciated in this line of authorities is sometimes referred to as the Shellmar rule.  The Second Circuit Court of Appeals and some other jurisdictions [***59]  hold to the contrary.  Conmar Products Corp. v. Universal Slide Fastener Co., supra; Carter Products, Inc. v. Colgate-Palmolive Co., supra, 130 F. Supp. at 575. The holding of these cases is sometimes referred to as the Conmar rule.  The American cases which follow the Shellmar and Conmar rules respectively, are analyzed in Turner, op.cit., at 442-454.
The reasoning of the Conmar rule is that the trade secret is protectible only because of the fiduciary relationship of the discloser to the disclosee.  Once the secret is public, the confidence would end in any event.  An injunction is issued only when damages are not adequate compensation and once a trade secret becomes public, its original owner can no longer be irreparably harmed by the use of the former secret by persons who originally 

 [*124]  used it wrongfully, because the rest of the world is also using it.  Under this rule, a distinction is made between the use of an injunction to protect proper lawful interests and its use as a penalty.
The rationale of the Shellmar rule is that a person wronged has an action for breach of confidence entitling him to a perpetual injunction against the person [***60]  who breached it of which the owner of the trade secret can not be deprived by an intervening publicity of the disclosure. The wrongdoer has deprived himself of the opportunity, open to the rest of the world, by his own violation of confidence.
Inherent in this judicial dichotomy is the weighing of the two conflicting social and economic philosophies, reference to which has been made in the discussion of the existence of a trade secret -- the balancing of the protection of rights in a proprietary knowledge gained by research and initiative against the interests in free competition and the use of an individual's skill for his own benefit and the benefit of the general public.
Our Court has had occasion to consider the balancing of these interests in a different aspect of the employer-employee relationship but one in which the decision is apposite to the considerations involved in the present case.  In Tawney v. Mutual System of Maryland, 186 Md. 508, 47 A. 2d 372 (1946), the appellee, a small loan company, with another company, filed a bill for an injunction and accounting against two former employees and others, alleging that the employees had entered into employment contracts [***61]  under which they agreed, inter alia, to keep secret the names of any past, present or prospective borrowers and customers of their employers; to refrain from using any information relative to such borrowers and customers, and to keep this information secret and refrain from using it for a period of three years from the date of termination of their employment.  We held that these provisions of the contract of employment were valid and enforceable, but that other provisions requiring the employees to refrain from competition in the Baltimore City trading area for a period of two years from the date of termination were not enforceable.   [**91]  In holding the latter provisions illegal, Judge Henderson, for the Court, said:

 [*125]  "We think this goes beyond what is necessary to protect the good will of the employer, and works an undue hardship upon the employees, who would be excluded from engaging in the business for which they are specially fitted by long training and experience.  Moreover the effect of enforcing the clause (M) would be to stifle competition, in a field where the existence of competition is clearly in the public interest." 186 Md. at 521.
Our [***62]  holding in the Tawney case rested upon the invalidity of a portion of an express contract between employer and employee rather than upon a breach of an implied duty of loyalty which the employee owes the employer; however, in the portion of the opinion which has been quoted, we indicated our realization of the importance of protecting the legal interests of the employer to the extent necessary, without working an undue hardship upon the employee.  The reference to the desirability of competition in a field where competition is clearly in the public interest is particularly relevant to the present case where the oxygen breathing hoses, which are the subject of litigation, are important to the national defense.
We agree with the Conmar rule.  Our conclusion that this rule should be applied to the present case is fortified by the specific and important public interest here involved.  The injunction should be modified so that it may be terminated if and when the methods and processes used by Darling in the manufacture of its oxygen breathing hoses become generally known to the public, without contribution in any way to such public knowledge through disclosures by the appellants.  [***63]  
We do not agree with the appellants that the injunction should be restricted to the use of the processes rather than prohibiting the manufacture of the product.  Darling's trade secret consists too largely of the ordered relationship and combination of various steps and devices, some in themselves quite simple in nature, to make a prohibition of specific steps or processes practical.  It is the period of the injunction, rather than its subject matter, which, under the circumstances, we find too broad.
There is, however, one aspect of the subject-matter of the 

 [*126]  injunction which should be modified.  We have found that the male disconnect attached to the hoses is not a part of Darling's trade secret and that the secret as to the manufacture of the hoses can be protected without inclusion of this attached fitting.  The injunction should be restricted so as to exclude from its operation and effect the male disconnect under Military Specification H-22489.
Brandenburg and Norris contend that, in any event, they should not be enjoined from manufacturing any hose "like or similar" to Military Specification H-22489, because Brandenburg had the know how to build the hose, independently [***64]  of any knowledge he acquired from the former employees. Even if Brandenburg knew how to build the hose, however, neither he, nor Norris, for whom he acted, had ever built such hose commercially.  Brandenburg as an individual and Norris, as a company, actively helped Space Aero in producing the hose for which Space Aero obtained the Navy contracts.  It is an implicit premise of the injunction that Darling's interests in its trade secret could not be adequately protected unless Brandenburg and Norris, as well as Space Aero and the former employees with whom they cooperated, were enjoined.  There is a reasonable inference from the testimony that the practical knowledge which Brandenburg and Norris obtained from their association with the former employees in building the hose added to the knowledge which they formerly had.  It would be difficult to separate the results of such practical experience from any independent knowledge formerly possessed.  In  [**92]  view of all the circumstances, the court below was justified in enjoining Brandenburg and Norris, in order adequately to protect Darling.  The harm to Darling and any hardship of the injunction upon Brandenburg and Norris sprang [***65]  from the situation to whose making Brandenburg and Norris wrongfully contributed.  See Wicklein v. Kidd, 149 Md. 412, 424, 131 Atl. 780 (1926); n6 and Restatement, Torts, §  941 comment b.

n6 "[W]hen one of two persons must suffer loss by action of a third person, the loss should fall on him who has enabled the third person to occasion such loss" * * *.

The appellants contend not only that the injunction is too 

 [*127]  broad, but that it is invalid, because the United States was not made a party to the proceedings.  The injunction affects the United States in that Space Aero is enjoined from performing and bidding on contracts with the Navy, and therefore, the appellants argue, the decree cannot bind the government.
The answer to this contention is that the United States did not ask to be made a party to the proceedings, the appellee did not name it as a party defendant, and the appellants did not take any timely steps, in the court below, to have it joined as a necessary party.  The statement [***66]  of the United States as amicus curiae requested the lower court to consider its interest in the scope of the injunction to be entered, but the affidavit of Rear Admiral Hines attached thereto expressly disclaimed, on behalf of the Navy, the taking of any part in any dispute between the parties.  The United States had ample notice of the pending litigation, and its failure to apply for joinder as a party is to be accepted as a disclaimer of any rights to that status.  Reddick v. State, 213 Md. 18, 30, 130 A. 2d 762 (1957). The appellants did not raise the defense of want of a necessary party by way of motion under Maryland Rule 323 or by a dilatory plea under Rule 341.
The United States, however, by its statement as amicus curiae and the supporting affidavit filed on June 10, 1964, the date that the decree was signed, requested the court to consider the interest of the government in the scope of the injunction to be entered.  The statement specifically requested that the injunction should exclude the performance of designated contracts between the Navy and Space Aero.  The affidavit of Rear Admiral Hines, which was made a part of the statement, also referred to sub-contracts [***67]  between Space Aero and certain Navy prime contractors.  The affidavit stated:

"While there is reason to believe that delays in subcontract performance will curtail Navy scheduling, we are not immediately in a position to substantiate this view.  It is respectfully requested that the Court grant leave to revise any injunction which may issue in the event affirmative data supports a demonstrable adverse interest to the National Defense."
On June 30, the court signed an order denying the petition 

 [*128]  for modification of the injunction, without hearing, and, so far as the record discloses, without affording the United States an opportunity to show, as it had claimed, that the extent of the injunction would have a serious impact upon the Navy's military needs.
"Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved." Virginia Ry. v. Federation, 300 U.S. 515, 553 (1937). See also Yakus v. United States, 321 U.S. 414, 441 (1944). A court of equity can mold its decree to grant relief suitable to the peculiar nature of [***68]  the case.  McKeever v. Realty Corp., 183 Md. 216, 224, 37 A. 2d 305 (1944).
The operation of the injunction issued below was stayed by the filing of a bond and it appears that the last completion date  [**93]  of the three contracts between the Navy and Space Aero specifically referred to in the statement of the United States Navy was in November, 1964.  We do not know, however, whether these contracts have actually been completed.  In the interest of the national defense, the government must be given the opportunity to show whether all the work required under these contracts has been performed; if not, the scope of the injunction should be limited to permit completion. The United States must also be accorded the opportunity, by appropriate proceedings in the lower court, to seek further to limit the scope of the injunction to permit the completion of Space Aero's subcontracts with the prime Navy contractees referred to in Rear Admiral Hines' affidavit, if it is determined that the prohibition of the completion of these subcontracts has a demonstrable adverse effect on the national defense. The damages, if any, sustained by Darling as the result of Space Aero's completion [***69]  of its contracts can be determined in subsequent proceedings.
Order affirmed in part, reversed in part, and case remanded for the passage of an order and for further proceedings if necessary in conformity with this opinion; costs of this appeal to be paid one-half by the appellants in equal shares and one-half by the appellee.  

100 of 138 DOCUMENTS 

SCHLATTER v. DIRECTOR OF PATUXENT INSTITUTION 

App. No. 64, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 132; 207 A.2d 653; 1965 Md. LEXIS 633 

March 12, 1965, Decided 

PRIOR HISTORY:
 [***1]  
From a finding that he was a defective delinquent, John George Schlatter, Jr. applied for leave to appeal.  

DISPOSITION:
Application denied.  

HEADNOTES:

Defective Delinquents -- Contentions Relating To Weight Of Evidence, As Distinguished From Its Sufficiency To Support Lower Court's Finding, Are Not Available As A Ground For Leave To Appeal.
Defective Delinquents -- Bald Assertion Of Insufficiency Of Evidence Without Factual Support Does Not Meet Requirements For Application For Leave To Appeal -- Application Should State Reasons Why Order Below Should Be Reversed Or Modified.
Defective Delinquents -- Records Of Patuxent Institution And Of Examining Psychologists Are Admissible In Evidence To Determine Defective Delinquency.
Defective Delinquents -- Juvenile Record Admissible As Evidence Of Prior Anti-Social Behavior.
Defective Delinquents -- Assertion That Court Refused To Admit Into Evidence Probation Report Is Without Merit Absent Showing Of Why This Was Prejudicial.  

SYLLABUS:

From a finding that he was a defective delinquent, John George Schlatter, Jr. applied for leave to appeal.  

JUDGES:
Prescott, C. J., and Hammond, Horney, Marbury, Oppenheimer and Barnes, JJ.  Marbury,  [***2]  J., delivered the opinion of the Court.  

OPINIONBY:
MARBURY 

OPINION:

 [*133]   [**653]  This is an application for leave to appeal from an order of the Criminal Court of Baltimore, dated May 4, 1964, finding the applicant to be a defective delinquent and committing him to Patuxent Institution under the provisions of Code (1957, 1963 Cum. Supp.), Article 31B.  On May  [**654]  24, 1963, he was found guilty of burglary and after a pre-sentence investigation report made by the Probation Department of the Supreme Bench of Baltimore City filed July 30, he was sentenced on August 27 to not more than two years in the Maryland Institution for Men.  On October 22, he was transferred to Patuxent Institution for examination and evaluation.  After a hearing at which he was represented by court appointed counsel, he was found to be a defective delinquent. In this application, he contends:

1. That the verdict of the court was erroneous and against the weight of the evidence.
2. That the court erred because there was no evidence legally sufficient to support its findings that applicant was a defective delinquent.
3. That the only witness for the State, Dr. H. M. Boslow, testified that the [***3]  applicant was a defective delinquent based on his examination of the applicant and the records of Patuxent Institution.
4. That the court admitted into evidence, over objection, the confidential and privileged juvenile record of the applicant.
5. That the court refused to admit into evidence the report of the Probation Department of Baltimore dated July 30, 1963.
6. That the testimony of the applicant and his mother showed that he had been rehabilitated, had properly re-adjusted his attitude toward society and was prepared to conduct himself as a law-abiding citizen in the community; and that he did not require the supervision and control as imposed at Patuxent Institution.
Applicant's contentions 1 and 6 are without merit as they relate and bear solely on the weight of the evidence as distinguished 

 [*134]  from its sufficiency to support the finding of the lower court, and are, therefore, not available as a ground for leave to appeal. Colbert v. Director, 234 Md. 639, 199 A. 2d 801; Cooper v. Director, 234 Md. 622, 198 A. 2d 301.
His contention 2 attacks the sufficiency of the evidence.  An application for leave to appeal is required to "*** contain a concise [***4]  statement of the reasons why the order should be reversed or modified, and shall include a list of the errors allegedly committed by the lower court." Maryland Rule 894 a 2 (a).  This allegation is not supported by the record but is a bald assertion of insufficiency of the evidence without factual support. Dr. H. M. Boslow, Director of Patuxent Institution, and Dr. W. N. Fitzpatrick, who was consulted at the request of applicant's counsel, testified that he was a defective delinquent. Fairbanks v. Director, 237 Md. 447, 206 A. 2d 699.
Applicant's contention 3 is without merit.  We have held that reports of the Patuxent Institution and of examining psychologists are admissible in evidence in a case where the question was whether the individual was a defective delinquent. Pierson v. Director, 235 Md. 654, 202 A. 2d 644; Purks v. State, 226 Md. 43, 171 A. 2d 726. His contention 4 must fail because evidence of prior anti-social behavior is admissible in cases of this nature.  Bullock v. Director, 231 Md. 629, 190 A. 2d 789. His contention 5 must also fail absent a statement as to why or how it was prejudicial to him.  He merely states a conclusion which is an insufficient [***5]  basis for granting leave to appeal. Faulkner v. Director, 230 Md. 632, 187 A. 2d 473.
Application denied. 

101 of 138 DOCUMENTS 

NUGER, et al. v. STATE INSURANCE COMMISSIONER 

No. 193, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 55; 207 A.2d 619; 1965 Md. LEXIS 627 

March 9, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order reversed; case remanded to the Superior Court of Baltimore City for the passage of an order consonant with this opinion; one-half of the cost of this appeal to be paid by Mr. and Mrs. Nuger, and one-half by the State Insurance Commissioner.  

HEADNOTES:

Statutes -- Repeal And Reenactment Of Old Law Did Not Extinguish Commissioner's Decision Properly Reached Under It.  In the instant case Art. 48A of the Code (1957), was in effect when charges were filed against the appellants by the State Insurance Commissioner and hearings held before him in 1962, but was repealed, effective December 31, 1963 and replaced by a new law. The Court stated that if the Commissioner's decision was proper under the old law, the repeal and reenactment of the statute did not release or extinguish any penalty or forfeiture incurred thereunder.
Administrative Procedure Act -- Appeal From State Insurance Commissioner -- Question Of Whether Old Or New Law Governed Appeal -- Comparison Of -- Scope Of Judicial Review -- Where All Evidence Proffered By Appellants Was Admitted By Trial Judge, It Was Held To Be Immaterial Which Law Was Applicable [***2]  .  One of the questions presented in the instant case was whether the procedure in the hearing on the appeal from a decision of the State Insurance Commissioner in the lower court was governed by the provisions of the old law, under which the Administrative Procedure Act (Code, 1957), Art. 41, Sections 255 (e) and (g) was applicable, or by Code (1964 Replacement Volume), Art. 48A, Sections 40 (4) and (5) of the new law. The pertinent provisions of both the new and old laws are the same, except that Section 255 (e) of the Administrative Procedure Act provides for the taking of additional evidence by the court on appeal only under certain circumstances, and that Section 40 (4) of the new law provides that the court shall hear the matter de novo and shall consider the evidence before the Commissioner, together with such additional evidence as may be offered by any party to the appeal.  Section 40 (5) of that law provides, in the same language as that of the corresponding section of the Administrative Procedure Act, that the court may affirm the decision or remand the case, or reverse or modify, if the substantial rights of the petitioners may have been prejudiced for any of the reasons [***3]  set forth.  The Court stated that the history of the Administrative Procedure Act, as well as its language shows that the purpose of judicial review of administrative action was to review that action, not to have a de novo judicial hearing which would take the place of the administrative process.  In the Court's opinion both the new and old laws place the burden on the petitioners to show that the administrative proceedings prejudiced any of their substantial rights.  The only difference in the two laws in respect of the procedure on appeal is that under the old law additional evidence could be offered in the judicial proceedings on the appeal only if the court were satisfied that the evidence was material and that there were good reasons for failure to present it in the administrative proceedings, whereas under the new law any party to the appeal may offer additional evidence as a matter of right.  The Court stated that taking Sections 40 (4) and (5) together, it was clear that this was the only meaning of "de novo" in Section 40 (4).  Further, in this case, all the additional evidence proffered by the appellants was admitted by the trial judge so that it was held that it was [***4]  immaterial which law was applicable to the appeal procedure.
Insurance -- Evidence Was Sufficient To Find Violation Of Code (1957), Art. 48A, Sec. 111.  It was held in the instant case that there was ample ground for the lower court to sustain the finding of the State Insurance Commissioner that one of the appellants, Mr. Nuger, an insurance broker, wilfully violated the provisions of Code (1957), Art. 48A, Sec. 111.
Insurance -- Code (1957), Art. 48A, Sec. 111 -- Violation Of Must Be Wilful, Mere Negligence Is Not Sufficient.  In the instant case it was held that although there was evidence of negligence on the part of one of the appellants, Mrs. Nuger, an insurance broker, there was no evidence before the Commissioner or the lower court to sustain a charge of wilful violation of Code (1957), Art. 48A, Sec. 111, in the sense that she intended to violate the statute; and negligence of itself is not one of the grounds stated in Sec. 111 for the revocation or suspension of a license. Therefore, the Insurance Commissioner's finding in respect of this charge was held to be unsupported by competent and substantial evidence and was against the weight of the evidence [***5]  and the lower court's finding to the contrary could not be sustained.
Insurance -- Brokers -- Failure To Pay Premiums Due Is Against The Public Interest -- Wilful Violation Of Code (1957), Art. 48A, Sec. 111 -- Evidence Sufficient To Support Revocation Of Appellants' License.  In the instant case it was held that there was substantial evidence on which the State Insurance Commissioner could properly have found that both Mr. and Mrs. Nuger, insurance brokers, had been deliberately derelict in the performance of their duties in the prompt payment of premiums collected by them, which Code (1957), Art. 48A, required of them for the protection of the public.  The Court stated that the public has an interest in the prompt transmittal of premiums paid for insurance policies, so that the coverage of the policies for which payment has been made will be assured.  There is also a public interest recognized by the statute, in the administrative supervision of the persons licensed by the Commissioner, who are entrusted with the collection of the premiums and the securing of the policies.  Mrs. Nuger could not evade the responsibility inherent in her position through the acceptance of notes [***6]  of Mr. Nuger, which were not paid when due.  The Court held that there was substantial evidence that the Nugers had been guilty of the wilful violation of Section 111 of Art. 48A and a finding that their licenses should be revoked was supported by the entire record.  The Court below, even with the additional testimony given before it, had ample basis to make a similar finding.
Insurance -- Revocation Or Suspension Of License -- Notice Of Hearing And Hearing Required -- Lack Of, Rendered Action Nugatory.  In the instant case certain charges were made to the State Insurance Commissioner against the AA Insurance Agency, Inc., but no notice of a hearing on these matters was ever given and no hearing was held.  The Court stated that notice of charges in connection with proposed suspension or revocating of licenses and a hearing on the charges are expressly provided for in Code (1957), Art. 48A, Section 111, and in any event are required by fundamental principles of fairness in administrative procedure.  Therefore, it was held that any action with respect to these charges was nugatory.
Administrative Procedure Act -- Scope Of Power Of State Insurance Commissioner -- Revocation  [***7]   Of Licenses -- Where Appellant Had No License Or Application For Renewal Of License Any Action Against It By Commissioner Was Beyond His Authority.  The Administrative Procedure Act Code (1957), Art. 41, contains no authorization for an administrative order similar to that of a judicial declaratory judgment.  While the scope of a delegation of legislative power to administrative officers has been liberally construed, there is no basis in the law for such an implied delegation to the State Insurance Commissioner in what the Act designates a contested case.  Therefore, in the case at bar, it was held that the Commissioner acted in excess of his authority in making provision for future applications for licenses by the appellants but that the record as a whole made it clear that, at the very least, he intended to revoke the appellants' licenses. However, one of the appellants, the AA Insurance Agency Inc., had no license of any kind at the hearing against it and no application by it for a renewal of a license was then pending.  Thus, it was held that any action against the AA Agency, as a result of the hearing, was beyond the Commissioner's authority; evidence adduced could [***8]  only be considered if and when the AA Agency filed an application for a license, or for a renewal of a license. 

SYLLABUS:

From an order of the Superior Court of Baltimore City affirming an administrative decision of the State Insurance Commissioner which revoked the qualifications of Lillian S. Nuger, and others, to engage in the insurance business in Maryland, they appeal.  

COUNSEL:
Benjamin Lipsitz for appellants.
Loring E. Hawes, Assistant Attorney General, with whom was Thomas B. Finan, Attorney General, on the brief for appellee.  

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

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*59]   [**620]  This is an appeal from a judgment of the Superior Court of Baltimore City affirming an administrative decision of the State Insurance Commissioner which revoked the qualifications of the appellants to engage in the insurance business in Maryland.  The appellants contend that the Commissioner's decision was unsupported by substantial evidence and against the weight of the evidence; that, as to two of the five charges made by the Commissioner, there was no hearing as provided by law; and that [***9]  the Commissioner's action was in excess of his statutory authority and jurisdiction.
Three hearings were held by the Commissioner.  The first two took place on April 24, 1962 on separate charges against two of the appellants, Caswell G. Nuger and Lillian S. Nuger.  The third hearing, on May 11, 1962, was on charges against the Nugers and AA Insurance Agency, Inc. (the AA Agency), the third appellant, of which Mrs. Nuger was President and Mr. Nuger, Secretary-Treasurer.  On June 1, 1962, the Commissioner rendered a consolidated decision, under five counts.  His conclusion was as follows:
"After considering all of the facts and testimony involved, it is my conclusion  [**621]  that Lillian Nuger, President, and Caswell G. Nuger, Secretary-Treasurer of AA Insurance Agency, Inc. have not observed the Laws of Maryland in conducting the affairs of this 

 [*60]  brokerage firm, and that it is not in the public interest to permit Lillian Nuger, as President of AA Insurance Agency, Inc. and/or in her capacity as an individual; Caswell G. Nuger as Secretary-Treasurer of AA Insurance Agency, Inc. and/or in his capacity as an individual; or AA Insurance Agency, Inc., a corporate entity,  [***10]  to be again licensed to engage in the insurance business in the State of Maryland.  It is further ordered that the qualifications of Lillian Nuger and Caswell G. Nuger to engage in the insurance business in the State of Maryland in any capacity are hereby revoked."
The appellants appealed from this decision, and the Commissioner's motion to dismiss the appeal was granted by the lower court on October 14, 1962, on the ground that it was not filed within thirty days from the order.  On appeal, we reversed the judgment and remanded the case for further proceedings.  Nuger v. State Ins. Comm'r, 231 Md. 543, 191 A. 2d 222 (1963). On March 30, 1964, the case was tried before Judge Sodaro, without a jury; at this hearing, additional testimony was offered by the appellants and admitted over objection.  On April 3, 1964, Judge Sodaro wrote the parties that, upon consideration of the transcript of testimony before the Commissioner, the exhibits, and the testimony given at the court hearing, he had concluded to affirm the Commissioner's decision.
Article 48A of the Code (1957), (the old law) as in effect when the charges were filed against the appellants by the Commissioner and the hearings [***11]  held before him, in 1962, was repealed, effective December 31, 1963, by Chapter 553, Acts of 1963, and was replaced by the Maryland "Insurance Code", Article 48A (Code, 1964 Replacement Volume), (the new law).  If the Commissioner's decision was proper under the old law, the repeal and reenactment of the statute did not release or extinguish any penalty or forfeiture incurred thereunder.  Code (1957), Article 1, Section 3.  See Brooks v. State Board, 233 Md. 98, 195 A. 2d 728 (1963).
A question is presented as to whether the procedure in the hearing on the appeal in the lower court was governed by the provisions of the old law, under which the Administrative Procedure 

 [*61]  Act (Code, 1957), Article 41, Sections 255 (e) and (g) was applicable, or by Article 48A, Sections 40 (4) and (5) of the new law. The pertinent provisions of both the new and old laws are the same, except that Section 255 (e) of the Administrative Procedure Act provides for the taking of additional evidence by the court on appeal only under certain circumstances, and that Section 40 (4) of the new law provides that the court shall hear the matter de novo and shall consider the evidence before the Commissioner,  [***12]  together with such additional evidence as may be offered by any party to the appeal.  The appellants contend that the procedural provisions of the new law prevail and that, under the section quoted, the burden is on the Commissioner to sustain the action taken by him.  We do not agree with this interpretation of the new law. Section 40 (5) of that law provides, in the same language as that of the corresponding section of the Administrative Procedure Act, that the court may affirm the decision or remand the case, or reverse and modify, if the substantial rights of the petitioners may have been prejudiced for any of the reasons set forth.  The history of the Administrative Procedure Act as well as its language, shows that the purpose of judicial review of administrative action in contested cases was to review that action under the criteria set forth, not to have a de novo judicial hearing which would take the place of the administrative process.  1, Davis, Administrative Law Treatise  [**622]  §  1.04.  Both the new and old laws, in our opinion, place the burden on the petitioners to show that the administrative proceedings prejudiced any of their substantial rights.  The only [***13]  difference we find in the two laws in respect of the procedure on appeal is that under the old law additional evidence could be offered in the judicial proceedings on the appeal only if the court were satisfied that the evidence was material and that there were good reasons for failure to present it in the administrative proceedings, whereas under the new law any party to the appeal may offer additional evidence as a matter of right.  Taking Sections 40 (4) and (5) together, as we must, it is clear that this is the only meaning of "de novo" in Section 40 (4).  In this case, all the additional evidence proffered by the appellants was admitted by the trial judge so that, in our view, it is immaterial which law was applicable to the appeal procedure.

 [*62]  The issues raised on this appeal can best be determined by a consideration of the administrative proceedings in chronological order.  These proceedings were all under Section 111 of the old law. Section 111 read as follows:
"Whenever the Commissioner shall be satisfied that any insurance broker, broker's solicitor, agent or solicitor, licensed or registered by this State, has wilfully violated any of the insurance laws of [***14]  this State, or has wilfully misrepresented any policies of insurance, or has dealt unjustly with or wilfully deceived, or dealt fraudulently with any insurance company or with any citizen of this State in regard to any insurance policy, or has failed or refused to pay over to the company or to his principal or other person whom he represents or has represented, or by or for whom he is employed or acts, any money or property in the hands of said agent, solicitor, broker or broker's solicitor belonging to said company, firm, broker, principal or person when demanded to do so, or has violated any ruling of the Insurance Department which he is by law authorized to make, or upon conviction of any infamous crime under the laws of this or any other state, or of the United States, or has been guilty of twisting or attempting to twist by misrepresentation any policy of insurance or has made any false statement, answer or declaration in his application for license, then and in any such case, the Commissioner may, and it shall be his duty to suspend or revoke the license of such broker or broker's solicitor, or suspend or revoke the license of any agent or solicitor for all companies which he [***15]  represents in this State for such length of time as the Commissioner may think proper; provided, however, that before the Commissioner shall suspend or revoke said license he shall give ten days' notice of the charges in writing, to be served upon said broker, agent or solicitor in person or by registered letter to his last known address, or by copy of the charges left at his last known address, and provided an opportunity shall 

 [*63]  be given the said broker, broker's solicitor, agent, or solicitor to be heard upon said charges, and the said broker, broker's solicitor, agent or solicitor shall have the right to have such suspension or revocation of license reviewed by the Superior Court of Baltimore City, when said offense occurred in Baltimore City, or by the circuit court of any of the counties of the State wherein such offense or offenses complained of occurred."
At the time of the hearings on April 24 and May 11, 1962, Mr. Nuger was licensed as an insurance agent, solicitor, and broker, and Mrs. Nuger was licensed as a broker. The AA Agency was licensed as a broker from May 1, 1960, to May 1, 1962, but its license had expired at the time of the hearing on May 11, 1962,  [***16]  and the record does not show that any application for a renewal of its license was then pending.
 [**623]  The Getlan Complaint
The first hearing on April 24, 1962 was on a complaint filed with the Commissioner by Benjamin Getlan against Caswell G. Nuger. Mr. Getlan testified before the Commissioner that on August 17, 1961, he applied for a policy of automobile liability insurance through Mr. Groupp, of the Groupp Insurance Agency, and Mr. Groupp applied to Mr. Nuger for coverage for Mr. Getlan.  This application, Mr. Getlan testified, was made by telephone in Mr. Getlan's presence.  Mr. Groupp then gave Mr. Getlan a "UCJ 1" form indicating that Mr. Getlan was insured by National Mutual Insurance Company.  In August, 1961, Mr. Getlan was involved in an automobile accident; he turned over the UCJ 1 form to the Department of Motor Vehicles.  A short time later, he completed an accident report which he obtained from Mr. Groupp's office; Mr. Groupp was not then present but Mr. Nuger was.  Mr. Nuger, according to Mr. Getlan, took the executed forms and stated he would have them completed and forwarded directly to the Department of Motor Vehicles.  During the next several weeks,  [***17]  Mr. Getlan testified, he called Mr. Nuger almost every day and visited his office on numerous occasions in an effort to obtain a copy of his policy.  Mr. Nuger repeatedly assured him that his policy would arrive 

 [*64]  shortly from Washington.  Mr. Getlan's son, an attorney, called the National Mutual Insurance Company in Washington and was informed that that company had no record of such a policy or an application for a policy.  Mr. Getlan then went to the Department of Motor Vehicles and was informed that the accident report which he said he had given Mr. Nuger to file had not in fact been filed.  Mr. Nuger stated, according to Mr. Getlan, that he had given the insurance application to another agent, who had failed to place the policy, and suggested that Mr. Getlan allow him to sue the other agent and the National Mutual Insurance Company.  He also offered, according to Mr. Getlan, to pay for a financial responsibility bond and to obtain witnesses.  Mr. Getlan rejected the offer.  Mr. Getlan's son testified that, on his father's behalf, he had called Mr. Nuger several times and was told by him that the policy from National Mutual was slow in coming over.
Mr. Nuger denied telling [***18]  Mr. Getlan that he was insured by National Mutual and asserted that he had told Mr. Getlan's son his father was not insured and never was.  He denied issuing or signing the UCJ 1 form or any connection therewith.  He admitted, however, that he had received the Department of Motor Vehicle accident report and had sent it in for Mr. Getlan, although, evidently, it was not received.
At the hearing before the lower court on appeal, Mr. Groupp, who had not appeared before the Commissioner, testified that he never gave the UCJ 1 form to Mr. Getlan and could not verify the signature which appeared on the back of the form.  He testified further that he had not instructed anyone to issue the form to Mr. Getlan.  On cross-examination, Mr. Groupp admitted that at the time referred to, he was not a solicitor or agent for National Mutual Insurance Company and that his insurance license had been revoked in November, 1962.
The credibility of the witnesses was originally for the Commissioner to determine.  There was ample relevant testimony which, if believed by the Commissioner, as it evidently was, supported his finding that Mr. Nuger deliberately misrepresented to Mr. Getlan and his son that he [***19]  was covered by a policy of automobile liability insurance with the National Mutual Insurance Company.  As we have pointed out, the provisions in respect 

 [*65]  of the judicial review set forth in the Administrative Procedure Act are applicable in this case, whether the old law is applicable, or whether the similar provisions in the new law apply.  "While it appears that the scope of judicial review by a trial court of the findings, inferences, conclusions and  [**624]  decisions of administrative agencies under the statute has been broadened to some extent, it is clear that the statute [the Administrative Procedure Act] did not intend that the court should substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken (Citations omitted)." Bernstein v. Real Estate Comm., 221 Md. 221, 230, 156 A. 2d 657 (1959), appeal dismissed 363 U.S. 419 (1960); State Board v. Ruth, 223 Md. 428, 436, 165 A. 2d 145 (1960).
It was for the lower court to decide the credibility and weight of the additional testimony before it.  There was ample ground for the court to find, even in the light of the additional testimony,  [***20]  that the finding of the Commissioner that the Act had been wilfully violated was supported by competent, material and substantial evidence, in view of the entire record, and was not against the weight of the evidence.
The Utz Complaint
The facts in respect of the charge brought against Mrs. Nuger alone in connection with this matter are virtually undisputed.  Richard Leslie Utz, a minor, went to the AA Agency's office to obtain a JR 11 certificate. This is a Maryland Minor's Financial Responsibility Certificate to be filed with the Department of Motor Vehicles, which states that the minor has been issued a policy of liability insurance for the purpose of complying with the Maryland Automobile Financial Responsibility Act.  Utz testified he was given the certificate in the Nuger's office.  The certificate was executed over the signature of Mrs. Nuger as an authorized representative of Southern General Insurance Company and stated that Utz was insured by that company.  Mrs. Nuger denied that the signature was hers.  She admitted the certificate was signed in her office but stated that the signature of her name was by an employee who had signed the form without her authority.  Mrs.  [***21]  Nuger testified that the 

 [*66]  certificate is issued when the application is taken and immediately thereafter the application is sent to the office of Leonard R. Shope, general agent for the Southern General Insurance Company.  Ordinarily, the policy of insurance on the application is issued after seven or eight days.  The company generally issues the policy promptly but, if the credit report and other reports are unfavorable, it subsequently cancels the policy.  In this case, the Southern General Insurance Company informed the Department of Motor Vehicles that Mrs. Nuger was not an agent for the insurance company and that there was no policy in effect insuring Utz.  The AA Agency, which was the Nugers' brokerage firm, had been doing business with Mr. Shope for more than a year.  Mr. Shope testified that he had furnished the Nugers with policy numbers and signed applications and had authorized the firm to fill out the JR 11 form with Mr. Shope's signature. Mr. Nuger, but not Mrs. Nuger, was licensed as an agent of the Southern General.  Utz had been issued an instruction permit when he filed the JR 11 form; upon receipt of the notice from the Southern General that Mrs. Nuger [***22]  was not its agent, Utz's permit was cancelled.  Several months later, a valid and acceptable JR 11 form under Mr. Shope's signature was duly filed with the Department.
The charge against Mrs. Nuger was wilful violation of the statute.  That she was negligent is apparent.  That negligence consisted in permitting her signature to be affixed by some employee when she was not an agent of Southern General, without appropriate instructions to or supervision over the employee, and, inferentially at least, in failing to check what had been done in her office for several months.  However, Mr. Nuger had authority to issue a valid certificate in Mr. Shope's name and when the mistake was belatedly discovered, a proper certificate was issued through the Nugers' office.
 [**625]  Negligence of itself is not one of the grounds stated in Section 111 for the revocation or suspension of a license. Section 121 of the old law dealt with the qualifications of fire and casualty agents and solicitors and provided that before the Commissioner shall issue a license, he shall require the applicant to satisfy him that the applicant had sufficient education and experience in the insurance business. It is [***23]  unnecessary to consider 

 [*67]  whether negligence of a licensed solicitor would justify the Commissioner in refusing an application to renew the license, for the charge against Mrs. Nuger was expressly based upon her alleged wilful violation of Section 111.
The term "wilful violation" as used in Section 111 clearly means an intentional act of omission or commission.  See Schwebell v. Orrick, 153 F. Supp. 701 (D.C.D.C. 1957). "Wilfulness" and "negligence" are not synonymous terms.  Rideout v. Winnebago Traction Co., 123 Wis. 297, 303, 101 N. W. 672 (1904); Southern Railway Co. v. Davis, 132 Ga. 812, 815, 65 S. E. 131 (1909); Cook v. Big Muddy Mining Co., 249 Ill. 41, 51, 94 N. E. 90 (1911); In re Cunningham, (N.D.N.Y. 1918) 253 F. 663, 665. There was no evidence before the Commissioner or the lower court to show that Mrs. Nuger was more than negligent or to sustain a charge of wilful violation in the sense that she intended to violate the statute.  The Commissioner's finding in respect of this charge therefore was unsupported by competent and substantial evidence and was against the weight of the evidence and the lower court's finding to the contrary can not [***24]  be sustained.
The Alleged Failure to Pay Premiums Due
This charge, based on the specific wording of Section 111 of the old law, was brought against Mrs. Nuger as President of the AA Agency; Mr. Nuger as its Secretary-Treasurer; the AA Agency; and the Nugers individually.  Much testimony was taken before the Commissioner at the hearing on May 11, 1962 in respect of the charge and additional testimony was taken before the lower court on appeal.
The salient elements of the case against the appellants may be summarized as follows: The AA Agency was licensed as a resident broker in Maryland from May 1, 1960 to May 1, 1962 and the Nugers were granted authority on the AA Agency's license to act for it.  Mr. Nuger was licensed to act as a solicitor for National Mutual Insurance Company of D. C. (the Washington Company); James P. McCloskey was licensed as an agent of the Washington Company from July 1, 1960 to June 30, 1961.  In December, 1961, the National Mutual Company of Maryland, Inc. (the Maryland Company) took over the assets 

 [*68]  of the Washington Company.  An audit by the Commissioner of McCloskey's accounts as agent for the Washington Company for the months of March through [***25]  June of 1961, showed a premium balance due and owing from the AA Agency to McCloskey and that McCloskey owed premiums to the Washington Company.  McCloskey advised the Washington Company and the State Insurance Department of Maryland that he had been unable to collect certain premiums due under policies written through the AA Agency.  On August 29, 1961, the Commissioner wrote the Nugers and the AA Agency informing them of the dispute between the Washington Company and McCloskey and asking for a detailed statement of the policies issued; the premiums collected on policies the Washington Company had issued to or by the AA Agency for the period beginning March 1, 1961; a statement of the amounts which had been remitted either to the Washington Company or its agent in respect of such premiums; and a detailed statement of any credits applicable to these specific accounts.  No reply to this letter was received prior to the hearing on May 11, 1962.  The Commissioner's audit showed that the premium balance due from the AA Agency to McCloskey was secured by one note for $ 3,000 and six notes for $ 1,000  [**626]  each, in the total amount of $ 9,000; these notes were made by Mr. Nuger payable [***26]  to the Maryland Company.  The testimony indicated that the $ 9,000 was the agreed balance due from the AA Agency to the Washington Company at the time the Maryland Company took over the Washington Company's accounts.  The notes were all dated December 14, 1961 and the maturities ranged from fifteen days to one hundred and eighty-eight days.  The President of the Maryland Company testified that none of the notes had been paid in full.  The Treasurer of the Maryland Company testified that the premium balances totaling $ 9,000 were for policies that the AA Agency and its principals, Mr. and Mrs. Nuger, acting as insurance brokers, had placed through McCloskey, as agent for the Washington Company, and that between December 1 and December 14 of 1961 the Maryland Company had demanded the payment of the past due premium balances of the AA Agency from that Company and the Nugers and that the balances had not been paid.  The Maryland Company had made an effort to 

 [*69]  collect the balance due on these notes but had not been successful, except for payments totaling $ 2400.
Mr. Nuger testified that credits due him under a contract between him and the Maryland Company would more than offset [***27]  the balance of the indebtedness evidenced by the notes.  The contract referred to, however, provided that Mr. Nuger was to obtain a solicitor's license to act for the Maryland Company, which he did not have during the time he claims benefits under the contract for acting as a solicitor.
The Nugers also contend that while the amounts were due from the AA Agency in May, 1962, in June or July of that year Mr. Nuger entered into an agreement with the Maryland Company for payment and that the payment was "waived" "in lieu of the contract" because the Maryland Company wanted the volume produced by the AA Agency.  The so-called "waiver" was subsequent to the hearing before the Commissioner and the Commissioner's decision.
The precise respective rights and liabilities of Mr. and Mrs. Nuger, the AA Agency for which they acted, and the Washington and Maryland Companies, were not before the Commissioner or the lower court for adjudication, but the involved dealings were pertinent to show whether or not the Nugers, on behalf of the brokerage concern for which they acted and which they controlled, had failed or refused to pay premiums which they had collected to the insurer or its agent.  The [***28]  licensing provisions of the law are for the protection of the public.  Goldsmith v. Manufacturers' Liability I. Co., 132 Md. 283, 289, 103 Atl. 627 (1918). See also Smirlock v. Potomac, 235 Md. 195, 200 A. 2d 922 (1964) holding that similar licensing provisions in respect of real estate brokers are regulations for the benefit of the public; and Snodgrass v. Immler, 232 Md. 416, 194 A. 2d 103 (1963) in which there was a similar holding in respect of the licensing of architects.  See also Babb v. Bolyard, 194 Md. 603, 608-09, 72 A. 2d 13 (1950) in which Judge Markell, for the Court, discussed the difference between the scope of common law actions, such as deceit, and the purposes of enactments for the benefit of the public, such as the Federal Securities Act and the Maryland Retail Installment Sales Act.

 [*70]  While there was some conflict in the testimony as to the complicated dealings between the various companies and the Nugers and the amounts still due by them, or either of them, in connection with their brokerage company's indebtedness, there was substantial evidence on which the Commissioner could properly have found that at the time of the hearing on May [***29]  11, 1962, both Mr. and Mrs. Nuger had been deliberately derelict in the performance of their duties in the prompt payment of premiums collected by them, which the Act required of them for the protection of  [**627]  the public.  The public has an interest in the prompt transmittal of premiums paid for insurance policies, so that the coverage of the policies for which payment has been made will be assured.  There is also a public interest, recognized by the statute, in the administrative supervision of the persons licensed by the Commissioner, who are entrusted with the collection of the premiums and the securing of the policies.
Mrs. Nuger could not evade the responsibility inherent in her position through the acceptance of notes of Mr. Nuger, which were not paid when due.  There was substantial evidence that the Nugers had been guilty of the wilful violation of Section 111 and a finding that their licenses should be revoked was supported by the entire record.  The court below, even with the additional testimony given before it, had ample basis to make a similar finding.  The effect, if any, of the Commissioner's finding in respect of the AA Agency will be considered hereafter.  [***30]  
The Fourth and Fifth "Counts"
In the Commissioner's consolidated decision of June 1, 1962, he included a so-called Fourth Count, stating that the Department had received a cancelled check, payable to the AA Agency, from a Mr. Powell; that no policy of insurance had ever been delivered to Mr. Powell by that company, and that a letter to the AA Agency demanding an explanation of the situation remained unanswered.  In his Fifth Count, the Commissioner stated that an inquiry at the office of the National Mutual Insurance Company of Maryland, Inc. showed that the AA Agency had been holding itself out as an insurance broker in the State of Maryland during the month of May, 1962 and had taken applications for insurance and collected premiums without being licensed so to do.

 [*71]  No notice of a hearing on either of these matters was ever given to the Nugers or to the AA Agency and no hearing on either of the matters was held.  Notice of charges in connection with proposed suspension or revocating of licenses and a hearing on the charges were expressly provided for in Section 111, and in any case are required by fundamental principles of fairness in administrative procedures.   [***31]  Ulman v. Baltimore, 72 Md. 587, 20 Atl. 141 (1890). See Cassidy v. Board of Appeals, 218 Md. 418, 421, 146 A. 2d 896 (1958); Cohen, Some Aspects of Maryland Administrative Law, 24 Md.L.Rev. 1, 8-15 (1964). Any action in respect of the charges referred to in these "Counts" was nugatory.
The Action of the Commissioner
In his consolidated decision, the Commissioner stated his conclusions: first, that Mr. and Mrs. Nuger had not observed the laws of Maryland in conducting the affairs of the AA Agency; and second, that it is not in the public interest to permit either Mr. or Mrs. Nuger as an officer of that company, or individually, or the AA Company, as a corporation, to be again licensed to engage in the insurance business in Maryland.  He then ordered that the qualifications of both Mr. and Mrs. Nuger to engage in the insurance business in Maryland are revoked.
A person's qualifications are his character, education and experience.  The qualifications of a person may be deemed sufficient or insufficient for the granting or renewal of licenses, but insufficient as the Commissioner obviously deemed the qualifications to be in this case, he could not effectively revoke them [***32]  anymore than he could effectively revoke the color of a man's hair.  What the Commissioner obviously had in mind, in part, in his order, as Judge Henderson inferred in his opinion for the Court, in Nuger v. State Insurance Commissioner, supra, was a declaration for the future, if and when there was a request for a renewal of a license. The law here considered, however, contains no authorization  [**628]  for an administrative order similar to that of a judicial declaratory judgment.  While the scope of a delegation of legislative power to administrative officers has been liberally construed, there is no basis in the law for such an implied delegation to the Commissioner in what the Administrative 

 [*72]  Procedure Act designates a contested case.  See Cohen, op. cit., 24 Md. Law Rev. at 3-15 and cases therein cited.
The discussion of the specific charges by the Commissioner in his decision of June 1, 1962 makes it apparent that he was convinced there had been a wilful violation of the statute under each of the first three charges.  The notices given the appellants clearly show that the proposed action against them for the violations, if proved, was to be taken under [***33]  Section 111, which provided for the revocation of licenses. The Commissioner acted in excess of his authority in making provision for future applications for licenses but the record as a whole, as well as the specific language of the conclusions, makes it clear that, at the very least, he intended to revoke the appellants' licenses.
Both Mr. and Mrs. Nuger had licenses at the time of the hearing but the AA Agency had no license of any kind at the hearing against it and no application by it for a renewal of a license was then pending.  Any action against the AA Agency, therefore, as a result of the hearing, was beyond the Commissioner's authority; the evidence adduced could only be considered if and when the AA Agency filed an application for a license, or for a renewal of a license. See State Board v. Ruth, supra.
We have found that there was not sufficient evidence to sustain the Commissioner's action or the action of the lower court affirming him in respect of the charge against Mrs. Nuger alone in connection with the Utz complaint.  We have also found that there was ample evidence before the Commissioner as to the revocation of the license of Mr. Nuger on the Getlan complaint,  [***34]  and the revocation of the licenses of both Mr. and Mrs. Nuger in connection with the failure to pay premiums, and that the lower court's affirmance of these charges was amply supported by competent testimony and the weight of the testimony.
The procedural provisions of both the old and new laws provide for judicial modification of the Commissioner's decision on appeal.  See also Maryland Rule B12.  Because of the incorrect form of the Commissioner's order, affirmed by the lower court; the erroneous conclusion in the Commissioner's decision in reference to matters in the "Fourth and Fifth Counts," and the erroneous finding against Mrs. Nuger in connection with the 

 [*73]  Utz complaint, we are constrained to reverse the decision of the lower court and to remand the case for the entry of such order or orders in connection with Mr. Nuger under the Getlan complaint and in connection with Mr. and Mrs. Nuger under the complaint in respect of failure to pay premiums, as the court may deem proper in accordance with this opinion.
Order reversed; case remanded to the Superior Court of Baltimore City for the passage of an order consonant with this opinion; one-half of the cost of this  [***35]   appeal to be paid by Mr. and Mrs. Nuger, and one-half by the State Insurance Commissioner.  

102 of 138 DOCUMENTS 

OAKLEY and SUMMERVILLE v. STATE; McKINNEY v. STATE (Three Appeals in One Record) 

Nos. 219-A, 219-B, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 48; 207 A.2d 472; 1965 Md. LEXIS 626 

March 8, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Criminal Court of Baltimore; Harlan and Sodaro, JJ.  

DISPOSITION:
Judgments and sentences affirmed.  

HEADNOTES:

Murder -- In First Degree -- Non-Jury Cases -- Evidence Held Sufficient To Sustain Convictions Of All Defendants Upon Ground That Victim Was Feloniously Killed In Perpetration Of, Or Attempt To Perpetrate, Robbery.
Assault With Intent to Murder -- Essence Of Offense Is Intent -- Reasonable Inference As To -- Malice.  The essence of the offense of assault with intent to murder is intent, and since intent is subjective, and without the assistance of the accused, cannot be objectively proven, its presence must be established by proven facts which permit a reasonable inference of its presence.  The offense involves the element of malice, and the facts must be such as to warrant a finding of murder, either in the first or second degree, had death ensued, although a specific intent to take the victim's life need not be shown.
Assault With Intent to Murder -- Non-Jury Cases -- Evidence Held Ample To Sustain Convictions.  Where the defendants in this assault with intent to murder case attacked the victim immediately after they had murdered his friend with the [***2]  same weapons utilized to effect his friend's death, and in the same general manner as they had approached and attacked the dead friend, cutting the victim of the assault in and about vital parts of his body and only desisted in their vicious attack after the entreaties of bystanders to do so, the evidence was held to be ample to sustain the defendants' convictions by the trial court, sitting without a jury.  These facts were sufficient to justify a permissible inference of an intent to kill, and would have supported a finding of murder, had the victim died.
Criminal Law -- Confession Or Statement -- Admissibility Of -- Burden Of Proof Upon State -- Trial Court's Discretion -- No Error In Admitting Statement In Present Case.  The State carries the burden of proving that either a confession or a statement made by an accused was freely and voluntarily given, and was not the result of force, threats, promises or inducements, if the statement is to be admitted into evidence.  In a non-jury case it is for the trial court to decide whether a statement was freely and voluntarily given, and its determination thereon will not be disturbed on appeal in the absence of a showing of an [***3]  abuse of discretion. In the instant criminal case, where the State offered believable, persuasive contradiction of every significant claim by the accused that coercion or inducement or improper or harsh treatment had brought forth or significantly induced the statement, the Court held that the trial judge committed no error in admitting it into evidence.  

SYLLABUS:

In non-jury cases Jerome Oakley was convicted of murder in the first degree and of simple assault; Arnold L. Summerville was convicted of murder in the first degree and of assault with intent to murder; and Charles McKinney, Jr., was convicted of murder in the first degree and found guilty generally (which amounted to assault with intent to murder) under another indictment.  From the judgments entered thereon, they appeal.  

COUNSEL:
John R. Hargrove, with whom were Howard & Hargrove on the brief, for Jerome Oakley, one of the appellants.
Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for Arnold L. Summerville, another appellant.
Howard M. Heneson, with whom was Roland Walker on the brief, for Charles McKinney, Jr., the other appellant.
Franklin Goldstein, Assistant Attorney General [***4]  , with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and David T. Mason, Assistant State's Attorney, on the brief, for the appellee.  

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

OPINIONBY:
PRESCOTT 

OPINION:

 [*50]   [**473]  These appeals involve three appellants, who were jointly indicted; but, upon a severance being granted to one, two were tried jointly and the other, alone, by the same judge, sitting without a jury, in the Criminal Court of Baltimore.  The appeals are unusual to the extent that two of the appellants, although convicted of serious offenses, have raised no constitutional issues.
Jerome Oakley was convicted of murder in the first degree under Indictment No. 5254 (Hubert L. Cox, the victim), and of simple assault under the second count of Indictment No. 5255 (Wilbur Crawford, the victim).  Although he noted an appeal from the assault conviction, he admits in this Court that he was guilty of this charge; hence Oakley's appeal is confined to the murder conviction.  The only issue raised by him is his challenge of the sufficiency [***5]  of the evidence to sustain the conviction.
Arnold L. Summerville, the other appellant who was tried jointly with Oakley, was also found guilty of murder in the first degree under Indictment No. 5254, and guilty of assault with intent to murder under the first count of Indictment No. 5255.  He, too, questions the sufficiency of the evidence (in both convictions), and also claims the court was in error in admitting the "statement into evidence against him."
Charles McKinney, Jr., the third appellant, was, likewise, found guilty of murder in the first degree under Indictment No. 5254, and guilty generally (which amounted to assault with intent to murder) under Indictment No. 5255.  He contends the evidence was insufficient to warrant his convictions.
The principal contention of all the appellants is that the evidence was insufficient to establish that Cox was killed in the perpetration of, or an attempt to perpetrate, a robbery. Code (1964 Supp.), Article 27, Section 410.  The State counters by 

 [*51]  stating that the testimony clearly impelled a finding that the killing was in the perpetration, or attempted perpetration, of a robbery; but, assuming that the testimony falls short [***6]  of this goal, it establishes the guilt of the appellants of murder in the first degree under Code (1957), Article 27, Section 407.
Summerville and McKinney also challenge the sufficiency of the evidence to sustain the assault convictions, and Summerville contends the court erred in admitting into evidence a "statement" made by him.
I
There was credible evidence from which the trial judge could have found the following facts.  On October 13, 1963, Cox left his home in his wife's car at about 9:15 p.m., carrying a wallet which contained $ 5.00, a driver's license and a registration card.  He went to the garage of Wilbur Crawford and picked him up.  They went to a restaurant where Cox bought a sandwich, a bowl of soup, and a half of a pint of whiskey which was consumed by the two of them.  They then went to Becky's Bar and parked the automobile.  Cox entered the bar, while Crawford remained in the car because he was wearing his work clothes.  Inside the bar were some 7 or 8 people: males and females. Some were seated at a table engaging in a card game.  Cox did not speak to anyone, but approached the bar as though he intended to order a drink.  Suddenly and without giving any warning,  [***7]  appellants Oakley and Charles McKinney "jumped right on him [Cox] and started hitting him * * *." They were soon joined in their attack by appellant Summerville.  Both McKinney and Summerville had knives (one witness stated they "all" had knives), and were hitting and cutting him about the head and stabbing him in the chest and side.  It was not long before Cox fell to the floor  [**474]  with his attackers on top of him.  McKinney and Summerville "went through his pockets."
All of the attackers then left the bar, and shortly thereafter Oakley returned and he also "went through [Cox's] pockets." After leaving the bar and going outside, Oakley, Summerville and McKinney began to attack Crawford, who had been waiting in the automobile.  Summerville entered the car and ordered Crawford "to empty [his] pockets," saying, "we have just killed your friend, I think, and you are next." After these brief and 

 [*52]  alarming introductory remarks, Summerville started cutting Crawford across his face and the back of his neck.  Summerville was accompanied at this time by Oakley and McKinney and one or two others.  They "pushed" and "pulled" him out of the car and began kicking him.  At [***8]  the behest of one or more of the females who had been in the bar, the group ceased the attack on Crawford.  As McKinney left the group, he was told by one of the females that Cox had been killed; whereupon he stated that "the son of a bitch should be dead."
Crawford was treated for cuts about his face and neck at the hospital, where stitches had to be taken.  Dr. Sadano testified the cause of death of Cox was multiple stab wounds.  And nothing was found in the pockets of Cox after the killing.
Practically all, if not all, of the evidence offered by appellants was the following.  Oakley testified that he didn't participate or see the Cox affray; and, although he saw the fight outside, he took no part therein, and could not identify any of the participants.  Summerville took the stand, stated he saw the Cox affair but neither he, Oakley, nor McKinney participated therein, and that when he went outside Crawford attacked him and he cut Crawford with his knife.
From the above statement of facts, it is clear that the evidence, even laying aside the State's claim that the evidence was sufficient to support a conviction under Section 407, was sufficient to sustain the convictions of all [***9]  the defendants of first degree murder upon the ground that Cox was feloniously killed in the perpetration of, or an attempt to perpetrate, a robbery, and we so hold.
II
We shall now consider the assault charges against Summerville and McKinney; they require no elaborate discussion.  Both were convicted of assaulting Crawford intending to murder him.  Assault with intent to murder is a statutory offense, Code (1957), Article 27, Section 12.  The essence of the offense is intent, Marks v. State, 230 Md. 108, and since intent is subjective, and, without the assistance of the accused, cannot be objectively proven, its presence must be established by proven facts which permit a reasonable inference of its presence.  Cooper 

 [*53]  v. State, 220 Md. 183. We held in Mason v. State, 225 Md. 74, that stabbing a man with an eight-inch knife in a vital part of his body was sufficient to sustain a finding of guilt of assault with intent to murder. And we have repeatedly held that the offense involves the element of malice, and to support a finding of such offense, the facts must be such as to warrant a finding of murder, either in the first or second degree, had death ensued,  [***10]  although the specific intent to take the victim's life need not be shown.  Bird v. State, 231 Md. 432, and cases therein cited.
In the case at bar, the evidence was ample to sustain the convictions.  Crawford's assailants attacked him immediately after they had murdered his friend with the same weapons utilized to effect his friend's death and in the same general manner as they had approached and attacked the dead friend.  They cut Crawford in and about vital parts of his body, and only desisted in their vicious attack after the entreaties of female bystanders to do so.  These facts were sufficient to justify a permissible inference  [**475]  of an intent to kill, Cooper v. State, Bird v. State, both supra, and would have supported a finding of murder had Crawford's death followed.
Although the facts proven were probably sufficient to sustain a finding of attempted robbery with a dangerous weapon under Article 27, Section 488, the appellants cannot complain, where the facts plainly permit such a finding, that they were found guilty of a crime that carries a shorter maximum sentence than the one of which they might have been convicted.
III
This leaves only the claim [***11]  of Summerville that his "statement" was improperly admitted for our determination.  The State readily admits, as indeed it must, that it has the burden of proving that either a confession or a statement made by an accused, in order to be admissible against him, was freely and voluntarily given and not as the result of force, threats, promises or inducements.
In the case at bar, Summerville took the stand to contest the voluntariness of his "statement." He alleged he was kept without shoes as a result of which he became cold, and that Sergeant 

 [*54]  Roy hit him twice in the ribs.  Lt. McKenna testified that Summerville gave the statement voluntarily and without any force, threats or violence by the police.  Sergeant Roy testified that he at no time struck the appellant, nor did appellant make any complaint about a lack of shoes. In a trial before a court, sitting without a jury, it is a matter for the trial court to decide whether a statement was freely and voluntarily given, and its determination thereon will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Abbott v. State, 231 Md. 462; Bryant v. State, 229 Md. 531. Here there was "contradiction [***12]  -- believable, persuasive contradiction -- by the State of every significant claim of the [prisoner] that coercion or inducement or improper or harsh treatment had brought forth or significantly induced the" statement.  Mefford & Blackburn v. State, 235 Md. 497, 514. We, therefore, hold that the trial judge committed no error in admitting the statement.
Judgments and sentences affirmed.  

103 of 138 DOCUMENTS 

ROLAND PARK CIVIC LEAGUE et al. v. LANCO, INC., et al.  

No. 179, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 3; 207 A.2d 462; 1965 Md. LEXIS 619 

March 5, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Sodaro, J.  

DISPOSITION:
Order affirmed; the appellants to pay the costs.  

HEADNOTES:

Zoning -- Baltimore City -- Record Supported Finding That Designated Line Was Only Tentative Proposal Or Study Line And Was Too Indefinite To Classify Area Belonging To Building Permittee As Part Of Street -- Area Could Be Included By Permittee In Computing Allowable Density.  Where a building permit was granted for the construction of an eighty-two unit apartment house in Baltimore City, and a subdivision plan submitted designated a portion of the lot as a "preliminary study line" for the expansion of a street, while a revised plan submitted designated the study line as a "proposed *** [right of way] line", this Court held that the record supported the finding below that the designated line was nothing more than a tentative proposal or study line and was too indefinite to classify the area in question as a part of the street, either in fact or in law.  The widening of the street was only contemplative, and nothing had been done by Baltimore City since to make the proposed widening more definite.  The permittee, without having been required to do so as a condition [***2]  precedent, accepted a preliminary study line as a proposed right of way line, and under these circumstances, the subsequent approval of the over-all subdivision plan by the Planning Commission did not require a finding, as a matter of law, that a widened street existed.  Therefore, that part of the tract designated for widening the street on the amended subdivision plan could be included in computing allowable density.
Zoning -- Baltimore City -- Two Distinct Area Districts Within Same Residential Use District -- Not Improper To Provide For Parking Requirements Of Residents Of One Area District Upon Land In Adjacent Area District.  In the instant case a building permit was granted for the construction of an apartment house in a residential use district in Baltimore City upon land situated in a D-1 area district, and this Court found no reason why parking space for the building should not be allowed upon land in an F-40 district in the same residential use district, the F-40 land being in an adjacent lesser density area than the building which it was to serve.
Zoning -- Baltimore City -- Apartment Building -- Height Restrictions -- Ground Floor Not Considered A Story Under Circumstances  [***3]   Here.  The Zoning Board did not act improperly under the circumstances of this case in determining that the lower or ground floor of an apartment building should not be construed as a story in calculating the permitted overall height under Sec. 19-D of the Baltimore City Zoning Ordinance. There was evidence that a substantial portion of the level in question was underground, unfinished except for 15% of its area, and that no part of the level would be used as dwelling units.  It was the practice of the Zoning Commissioner not to consider a ground floor as a story in computing the number of stories under the circumstances here.  

SYLLABUS:

Application by Lanco, Inc., for the issuance of an amended building permit for the construction of an apartment building in Baltimore City.  The Zoning Commissioner issued the permit, and the Board of Municipal and Zoning Appeals approved his action.  From an order affirming the decision of the Board, Roland Park Civic League and Howard E. DeMuth, Jr., the protestants, appeal.  

COUNSEL:
George W. Baker, Jr., with whom were Allen, Burch & Baker on the brief, for the appellants.
Donald N. Rothman, with whom were Gordon, Feinblatt & Rothman,  [***4]   Joseph Allen, City Solicitor of Baltimore, and Harold I. Glaser on the brief, for the appellees.  

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

OPINIONBY:
HORNEY 

OPINION:

 [*5]   [**463]  This is an appeal by Howard E. DeMuth, Jr. and others (the protestants) from an order of the Baltimore City Court sustaining the action of the Board of Municipal and Zoning Appeals (Zoning Board) in approving the issuance of a building permit for the construction of an eighty-two unit apartment building at the southeast corner of Roland Avenue and Cold Spring Lane.
Lanco, Inc. (the permittee) is the owner of a 16.7 acre lot or tract of land in a residential use district.  In October 1962, the permittee submitted a subdivision plan for the lot to the Planning Commission.  The Bureau of Surveys, in reviewing the plan, drew an east-west line across the northern portion of the lot which it designated as a "preliminary study line of Cold Spring Lane expansion." The line was drawn in connection with a study by the Director of Public Works of a proposed future widening of Cold Spring Lane east of Roland Avenue.  The plan (with the study line [***5]  marked thereon) was approved by the Planning Commission and from the subsequent issuance of a building permit the protestants appealed to the Zoning Board.  The appeal and a suit to prevent construction were eventually dismissed but not until after the delay caused by those actions made it necessary for the permittee to seek and be granted an extension of the building construction completion date.
Thereafter, the permittee submitted a revised development and subdivision plan, along with an application for an amended permit, to the Planning Commission.  This plan divided the tract into two lots, on one of which, containing 2.598 acres, the proposed apartment building was to be built.  The balance of the 16.7 acre tract was reserved for future development.  The amended plan, approved by the Planning Commission on October 

 [*6]  8, 1963, also showed the study line but in this instance it was designated as the "proposed *** [right of way] line for Cold Spring Lane expansion" by the permittee before the plan was submitted for approval.  Other than the wording of the designation, the record does not indicate the meaning of the inscription.
The 2.598 acre lot, which is the subject [***6]  of this controversy, consists of 2.04 acres situated in a D-1 area district (of which .307 acres is within the area designated  [**464]  for widening Cold Spring Lane) and .558 acres situated in an F-40 area district.  The amended plan showed that substantially all of the adjacent parking spaces would be on F-40 land and that such land would also be used as entrances and exits to and from the parking area as well as to satisfy rear yard requirements.  An elevation plan indicated that the apartment building would consist of a ground floor and six stories of a height of less than seventy-five feet. An amended building permit, allowing development of the subdivision as proposed in the amended plan, was issued on December 12, 1963, and the protestants appealed again.  On the second appeal, the Zoning Board unanimously approved the action of the Zoning Commissioner in issuing the building permit. The action of the Zoning Board was affirmed by the lower court, and the appeal to this Court followed.
Three questions, all of which were decided in favor of the permittee below, are presented here: (i) whether that part of the D-1 land designated for widening Cold Spring Lane on the amended [***7]  subdivision plan may be included in computing the allowable density; (ii) whether the areas required for parking spaces, entrances and exits, and the rear yard may be located on F-40 land; and (iii) whether the apartment building has more than six stories in violation of §  19-D of the zoning ordinance. No question as to a requested variance or special exception is involved.
(i)
In addition to questioning the applicability of §  31-L of the city zoning ordinance to tracts of land other than garden apartment lots, the protestants, relying on Akers v. City of Baltimore, 179 Md. 448, 20 A. 2d 181 (1941) and Clarks Lane 

 [*7]  Garden Apts. v. Schloss, 197 Md. 457, 79 A. 2d 538 (1951), contend that the D-1 land, exclusive of the .307 acres on the northerly side of the line designated as "proposed right of way" on the amended plan would support a density of only sixty-nine dwelling units as opposed to the eighty-two authorized by the building permit.
Section 31-L provides that:
"In determining the number of families which may be housed on a lot or tract of land under sub-section A of Section 25 [concerning the method of arriving at the maximum number of families per acre [***8]  which may be housed on any lot] and in determining whether or not a tract of land contains five acres under sub-section N of Section 25 [concerning apartment houses commonly known as garden type of apartments], the area of land designated on an approved sub-division plat *** and thereby or thereafter given or dedicated to the [City] by the owner, for the purpose of widening a street or alley abutting the lot or tract involved, shall be included in the area of such lot or tract of land."
In Akers, where the Planning Commission approved a proposed subdivision for the construction of six groups of apartment houses on condition that two adjacent public highways be widened by a taking from the property to be developed and the owner agreed to provide for the widening and to reduce the density of the area accordingly, the issuance of a permit for the project as adjusted was granted and the order therefor was affirmed.
In Clarks Lane, where the question presented was whether the area reserved in a subdivision plan for streets to be thereafter acquired by the city could be included in calculating the area requirements for garden apartments, it was held that the area of the [***9]  proposed streets could not be included as a part of the project.  It is to be noted, however, that there was evidence in that case, not present in this, that the Planning Commission had required reservation of streets before approving the subdivision plan with the understanding that they would be paved and opened without delay.

 [*8]   [**465]  In the case at bar, the claim of the protestants, admittedly based on their assumption that §  31-L applies to garden apartments only and their theory of the effect of the permittee having designated the "preliminary study line" on the original plan as the "proposed right of way line" on the amended plan, is that the designated area acquired official status as a part of the street when the amended plan was approved by the Planning Commission and that such area (whether or not presently used as a street) cannot be included in computing density. As we see it, however, it would be just as feasible to have surmised that the permittee, by substituting "proposed" right of way line for "preliminary" study line thereby intended to give or dedicate the land in question to the City, whenever the proposed widening became a reality. n1

n1 While no positive evidence was offered, the lower court was informed, as we were at the oral argument, that it was the present intention of the permittee to give the "proposed right of way" to the City and not require condemnation when the widening line of Cold Spring Lane becomes definitely fixed.

 [***10]  
But regardless of whether or not §  31-L can be construed as applying to other lots as well as garden apartment lots, and regardless of the decisions of this Court in Akers and Clarks Lane, we think the facts and circumstances of this case do not require a finding that the portion of D-1 land on the northerly side of the "proposed right of way" line cannot be used in computing density. Rather, we think the record supports the finding of the lower court that the designated line was nothing more than a tentative proposal or study line and was too indefinite to classify the area in question as a part of the street either in fact or in law.  The line drawn by the Bureau of Surveys as a "preliminary study line" on the original subdivision plan is a clear indication that whatever widening of Cold Spring Lane was then planned was only contemplative and nothing has been done by the City since to make the proposed widening more definite.  Moreover, although the Department of Public Works has apparently been engaged for some time in planning for the expansion of Cold Spring Lane, there is nothing in the record to indicate when, if ever, a widening will take place.  No definitive 

 [*9]   [***11]  action has been taken by the City as of now indicating that an expansion of the street will follow a predetermined course or include land belonging to the permittee. Nor has any ordinance ever authorized the widening of the street or the acquisition of land for that purpose by condemnation or otherwise either from the permittee or other abutting owners.
While §  119 of the Charter of Baltimore City provides that streets in a subdivision plan, after the approval of the plan by the Planning Commission, shall have the status of a street shown on an official detailed plan, §  114 (of the charter), concerning the effect of an official detailed plan, states that the adoption of such a plan shall not be deemed the opening or establishment of a street but shall merely designate the location thereof for future acquisition for public use.  And in Feldman v. Star Homes, 199 Md. 1, 84 A. 2d 903 (1951), the approval of a subdivision plan was said not to alter the character of proposed streets nor to require the city to take them over.  Under some circumstances the approval of a subdivision plan, under which certain areas are set aside for future streets or the widening of existing streets,  [***12]  as was the situation in the Akers and Clarks Lane cases, may prevent the use of the land so acquired in computing the density permitted in the area involved.  But where, as here, the permittee without having been required to do so as a condition precedent, accepted a preliminary study line as the proposed right of way line for the widening of a street on which its property abutted, we hold that the subsequent approval of the overall subdivision plan by the Planning Commission does not require a finding, as a matter of law, that a widened street existed.
 [**466]  (ii)
Section 17-A of the zoning ordinance requires that parking spaces be provided on the same lot on which a dwelling is erected or on a lot not over three hundred feet from the dwelling. There is, however, no provision expressly prohibiting the use of one area district for the parking requirements of another area district.  Furthermore, since it is with buildings that the density provisions of the zoning ordinance are principally concerned, parking space on the same lot as the building or any other lot 

 [*10]  is generally regarded as open or unoccupied space. Windsor Hills Improvement Association v. City  [***13]   of Baltimore, 195 Md. 383, 73 A. 2d 531 (1950); Akers v. City of Baltimore, supra. Where, as here, two distinct area districts are within the same residential use district, it would not be improper to provide for the parking requirements of the residents of one area district in an adjacent area district.  In Hutzler v. City of Baltimore, 207 Md. 424, 114 A. 2d 608 (1955), where a somewhat analogous problem was presented in that there were two separate height districts in a lot situated in the same use district, we held that rear yard requirements could be satisfied in a height district distinct from that in which the building was located.  And in Akers v. City of Baltimore, supra, it was held that there was no restriction in the zoning ordinance against parking cars in the spaces required for yards.
Although in the present case the parking spaces and the building are in different area districts, it is with the regulation of population density that area districts are concerned.  And while there may be a direct relationship between density and parking -- in a case such as this where both area districts are in the same residential use district and it is deemed desirable [***14]  to maintain an orderly neighborhood therein -- we see no reason why parking space for an apartment building should not be allowed in an adjacent lesser density area than the building which it serves.
The reasons stated for holding that parking spaces may be provided on F-40 land for residents of D-1 land also disposes of the questions as to the entrances and exits and rear yard requirements.
(iii)
Section 19-D of the zoning ordinance provides that "in a one time height district *** dwellings shall be *** limited in height to *** six stories, not exceeding seventy-five feet." While the building in question does not exceed seventy-five feet, the protestants contend that because the apartment consists of a ground floor and six stories, it is in fact a seven story structure in violation of §  19-D.  The zoning ordinance does not delimit or define the meaning of the word "story," but it 

 [*11]  was shown that it has been the practice of the Zoning Commissioner not to consider a ground floor as a story in computing the number of stories if that level was partially below ground and no dwelling units were to be maintained therein.  Here, there was evidence that a substantial portion [***15]  of the level in question was underground, that the level, except for fifteen per centum of its area, was unfinished, and that no part of the level would be used as dwelling units.  The Zoning Board accordingly determined that the lower or ground floor of the building should not be construed as a story in calculating the permitted over-all height. On the facts presented, we think the action of the Zoning Board was not improper, and we so hold.
For the reasons stated, the order of the lower court sustaining the action of the Zoning Board will be affirmed.
Order affirmed; the appellants to pay the costs.  

104 of 138 DOCUMENTS 

POINTER v. STATE 

No. 202, September Term, 1964 

Court of Appeals of Maryland 

238 Md. 23; 207 A.2d 611; 1965 Md. LEXIS 621 

March 5, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment and sentence under fourth count of indictment reversed, without a new trial; judgment and sentence under fifth count affirmed.  

HEADNOTES:

Larceny -- Evidence Was Sufficient To Convict -- Possession Of Recently Stolen Goods.  In the instant case it was held that the evidence was sufficient to sustain the appellant's conviction of larceny. The Court stated that the trial court was not clearly in error in drawing the inference that the appellant had been an occupant of the vehicle in which stolen cigarettes were found from the fact that he was apprehended while hiding just 30 feet from where the car had stopped, and from other circumstances mentioned.  Thus, the trial court was justified in concluding that the appellant was in possession of recently stolen goods. This warranted an inference that the appellant was the thief in the absence of a reasonable explanation of a lawful possession. In view of the fact that the trial court had only the testimony of the police officers before it, the Court felt that it was not clearly wrong in not holding that the presumption had been rebutted.
Rogues and Vagabonds [***2]  -- Evidence Was Not Legally Sufficient To Convict Under The Provisions Of Code (1957), Art. 27, Sec. 490.  It was held that the evidence in the instant case was not legally sufficient to support the appellant's conviction of being a rogue and vagabond under Code (1957), Art. 27, sec. 490.  Since the appellant did not have any "implement" or "offensive weapon" "upon him" when apprehended, parts (1) and (2) of the statute were inapplicable here.  The mere admission by the appellant to the police that he had had "tools" (which they could not find) with him was not sufficient proof of the corpus delicti.  Further, since a junkyard (where the appellant was found) is not a "dwelling house, warehouse, storehouse, stable or outhouse" and since the evidence showed that the yard was not enclosed at all but rather was "completely open", and since there was no evidence that there was any building on the premises, part (3) of the statute was also inapplicable.  

SYLLABUS:

Samuel L. Pointer was convicted under a six count indictment in a non-jury trial of being a rogue and vagabond (fourth count), and of larceny (fifth count) and from the judgments entered thereon, the appellant appeals.  

COUNSEL:
 [***3]  
James G. Beach, Jr. for appellant.
Eli Baer, Special Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., and Robert V. Lazzaro, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City on the brief, for appellee.  

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

OPINIONBY:
SYBERT 

OPINION:

 [*24]   [**611]  The appellant, Samuel L. Pointer, was convicted under a six count indictment of breaking a storehouse and stealing therefrom goods of the value of five dollars or more (third count), of being a rogue and vagabond (fourth count), and of the larceny of ten cases of cigarettes (fifth count), by the Criminal Court of Baltimore, sitting without a jury.  A motion for a new trial in regard to the breaking and stealing count was granted 

 [*25]  by the Supreme Bench of Baltimore City.  The appellant was then sentenced under the other two counts to a term of two years (rogue and vagabond) and three and one-half years (larceny) in the House of Correction, to run concurrently.
The appellant did not testify or call any witnesses.  [***4]  The testimony of the two arresting police officers was that at approximately 1:30 A.M. on November 7, 1963, they observed a Buick automobile being driven with a temporary rear license plate  [**612]  and with its rear tag light out.  They followed the vehicle and when it accelerated they turned on their flashing red light.  While pursuing the vehicle at high speed they noticed several cases of "Salem" cigarettes through the rear window of the vehicle.  They pursued the auto into a junkyard where, before it completely stopped, they observed three persons (whom they could not see clearly because of the darkness) run from the car into the yard. While searching the yard one officer found the appellant "crouched down" and "hiding" behind a wrecked car about 30 feet from where the chased vehicle had stopped.  He was described as "very nervous and he seemed to realize he was being pursued", and his breathing indicated he had been running.  He said "don't shoot" as the officers approached.  He was arrested and ten cases of "Salem" cigarettes were found in the car.  The appellant stated to the police that he was in the junkyard to steal radiators and that he had certain tools with him to [***5]  carry out this intent.  No tools were found at the scene, however.  He denied any knowledge of the cigarettes and denied having been in the Buick.  The police did not learn that the cigarettes had been stolen from a warehouse on South Charles Street, some distance from the junkyard, until later that morning.
The appellant's only contention on this appeal is that the evidence was legally insufficient to support his convictions for larceny and being a rogue and vagabond.
We think there was sufficient evidence to sustain the conviction of larceny. The trial court was not clearly in error in drawing the inference that the appellant had been an occupant of the vehicle in which the cigarettes were found from the fact that he was apprehended while hiding just 30 feet from where the car had stopped, and from the other circumstances mentioned 

 [*26]  above.  Thus the court was justified in concluding that the appellant was in possession of recently stolen goods. This warranted an inference that the appellant was the thief in the absence of a reasonable explanation of a lawful possession. Felkner v. State, 218 Md. 300, 146 A. 2d 424 (1958); Brooks v. State, 235 Md. 23, 200 A.  [***6]  2d 177 (1964). In view of the fact that the court had only the testimony of the police officers before it, we do not believe it was clearly wrong in not holding that the presumption had been rebutted.
However, in regard to the rogue and vagabond count, the evidence was not legally sufficient to support the conviction.  Code (1957), Art. 27, sec. 490, provides:
"If any person [1] shall be apprehended having upon him any picklock, key, crow, jack, bit, or other implement, at places and under circumstances from which an intent may be presumed feloniously to break and enter into any dwelling house, warehouse, storehouse, stable or outhouse, [2] or shall have upon him any pistol, hanger, cutlass, bludgeon, or other offensive weapon, also at places and under circumstances from which may be presumed an intent feloniously to assault any person, [3] or shall be found in or upon any dwelling house, warehouse, storehouse, stable or outhouse, or in any enclosed yard or garden or area belonging to any house, with an intent to steal any goods or chattels, *** shall be deemed a rogue and vagabond * * *." (Numbering supplied.)
Parts [1] and [2] of the statute are inapplicable [***7]  here, since the appellant did not have any "implement" or "offensive weapon" "upon him" when apprehended. The mere admission by the appellant to the police that he had had "tools" (which they could not find) with him to steal radiators was not sufficient proof of the corpus delicti. Bradbury v. State, 233 Md. 421, 197 A. 2d 126 (1964). The evidence was also insufficient to support a conviction under part [3], since a junkyard is not a "dwelling house, warehouse, storehouse, stable or outhouse" and since the evidence showed that the yard was not enclosed at all but rather was "completely open", and since there was 

 [*27]  no evidence that there was any building on the premises.  Therefore, since the material elements of the crime were not proved, we must hold that the appellant was  [**613]  erroneously convicted of being a rogue and vagabond. Cf. McCray v. State, 236 Md. 9, 202 A. 2d 320 (1964); Bergen v. State, 234 Md. 394, 199 A. 2d 381 (1964).
Judgment and sentence under fourth count of indictment reversed, without a new trial; judgment and sentence under fifth count affirmed.  

105 of 138 DOCUMENTS 

JACKSON v. STATE 

No. 177, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 652; 207 A.2d 509; 1965 Md. LEXIS 792 

March 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Robbery With A Deadly Weapon -- Assault -- Evidence Sufficient To Sustain Convictions.
Sentence -- Not Reviewable If Within Limits Permitted By Law.  

SYLLABUS:

Edward A. Jackson was convicted of robbery with a deadly weapon and of assault by the trial court, sitting without a jury, and from the judgments entered thereon, he appeals.  

COUNSEL:
John R. Hargrove, with whom were Howard & Hargrove on the brief, for appellant.
John A. Blondell, Special Attorney, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Edward G. Wyatt, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Marbury, Sybert and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*653]   [**509]  On this appeal the appellant contends that the evidence presented was insufficient to support his convictions in a non-jury trial on separate charges of robbery with a deadly weapon and of assault, and that his two consecutive sentences of seven and one-half years each were excessive.  [***2]  
We have reviewed the evidence and find that it was ample to warrant the convictions.  The sentences were within the limits permitted by law and thus are not reviewable by us.
Judgments affirmed.  

106 of 138 DOCUMENTS 

TEVES v. STATE 

No. 204, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 653; 207 A.2d 614; 1965 Md. LEXIS 793 

March 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Larceny Of Two Automobiles, Gasoline Credit Card And Vehicle Registration -- False Pretenses By Use Of Credit Card -- Evidence Sufficient To Warrant Convictions.  

SYLLABUS:

William E. Teves, III, was convicted of larceny of two automobiles, larceny of a gasoline credit card and a vehicle registration card, and of false pretenses by the trial court, sitting without a jury, and from the judgments entered thereon, he appeals.  

COUNSEL:
Submitted on brief by Stanley J. Schapiro for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, Carville M. Downes, Assistant Attorney General, Charles E. Moylan, Jr. and John Hackett, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

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

OPINIONBY:
PER CURIAM 

OPINION:

 [*654]   [**614]  The appellant, Teves, who was convicted in a non-jury trial of the larceny of two automobiles, of the larceny of a gasoline credit card and a vehicle registration card from another car, and of two charges of false pretenses by using [***2]  the credit card, contends on this appeal that the evidence was insufficient to support the convictions.
The State's evidence showed that the automobiles were stolen; that a witness saw the appellant enter one of the vehicles and drive off; that he was arrested after beginning to drive off in the second car; that the credit card was stolen and that the appellant used it twice to obtain gasoline from service stations, signing the name of the owner of the card, and that he had it in his possession when apprehended.  Manifestly, the evidence was sufficient to warrant the convictions.
Judgments affirmed.  

107 of 138 DOCUMENTS 

SMITH v. STATE 

No. 131, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 573; 207 A.2d 493; 1965 Md. LEXIS 762 

March 3, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

False Pretenses -- Three Essential Elements Necessary To Constitute Crime -- Evidence Held Legally Sufficient In This Case To Support Jury's Finding That All Three Elements Were Established Beyond Reasonable Doubt.  To constitute the offense of obtaining money or property by false pretenses, the State must show that there was (1) a representation of a past or existing fact (2) made with intent to defraud and (3) that the operation of such representation as a deception induced a transfer and the obtaining of the money or property by the person committing the fraud to the loss of another.  In the instant case, where the defendant was convicted by a jury of obtaining money by false pretenses in violation of Code (1957), Art. 27, sec. 140, the Court held the evidence to be legally sufficient to support the jury's finding that all three of the essential elements set out above were established beyond a reasonable doubt. The defendant made certain material representations to the victim, from whom he had rented a room, and he admitted that all of these representations were false.  They all [***2]  concerned past or existing facts and therefore constituted a basis upon which the existence of the first essential element could be found.  When these representations were considered in the light of all of the circumstances in this case, there was abundant evidence to permit a finding of an intent upon the defendant's part to deceive and defraud the victim by persuading her to lend him money in reliance upon the false representations.  And considering the nature and extent of the representations in the light of the sequence of events and the surrounding circumstances, there was a sufficient factual basis for a reasonable inference that the victim was in fact caused and induced to make the loans by reason of her reliance upon such false representations and deception. It was obvious from the defendant's conduct that he never had any intention of repaying the victim and that she had sustained the loss of the entire amount lent him.
Criminal Law -- Confession -- Threat Or Promise To Release Another From Suspicion Of Guilt -- Evidence Sufficient In This Case To Establish Prima Facie That Oral Confession Was Free And Voluntary.  A confession is not rendered involuntary or inadmissible [***3]  merely because it was made to release another from suspicion of guilt; there must also be sufficient evidence that the confession actually was induced by a threat or promise or other cause.  Whether a threat or promise was made presents a question of fact, if the evidence conflicts.  The trial court, having first considered the evidence produced upon both sides, must decide whether the prima facie proof was such as to establish that the confession was freely and voluntarily made, leaving to the trier of the facts the ultimate determination of whether the confession was in fact voluntary and whether it should be believed.  In the present criminal case, where the defendant testified that the police had promised him to release his wife if he would give them a statement, which promise of reward induced him to make the statement, this Court held that the testimony of the police to the contrary, if believed by the trial court, was sufficient to establish prima facie the free and voluntary nature of the oral confession, so as to justify its admission into evidence for consideration by the jury.
False Pretenses -- Code (1957), Art. 27, Sec. 140 -- Crime May Involve Obtaining  [***4]   Of Money By Loan If Other Necessary Elements Of Offense Are Established.  A transaction which involves the obtaining of money by a loan, rather than by some other form of transaction, and which results in the person making false representations coming into the possession of money or property of another by deception, is within the intent and the literal wording of Code (1957), Art. 27, sec. 140, provided that the three essential elements of the offense are established.  

SYLLABUS:

James Francis Smith was convicted by a jury of obtaining money by false pretenses, and from the judgment entered thereon, he appeals.  

COUNSEL:
Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for the appellant.
David T. Mason, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Edward G. Wyatt, Assistant State's Attorney, on the brief, for the appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Carter, J., Chief Judge of the Second Judicial Circuit, specially assigned.  Carter, J., by special assignment, delivered the opinion of the Court.  

OPINIONBY:
CARTER 

OPINION:

 [*576]   [***5]   [**494]  The defendant was convicted in the Criminal Court of Baltimore of obtaining money by false pretenses in violation of Article 27, Section 140, Code (1957), and sentenced to ten years in the Maryland Penitentiary.  He appeals from that judgment.
It was established by the evidence that the victim, Mrs. Clifford Horsman, a widow of six months duration, placed an advertisement in The Sunday Sun, a Baltimore City newspaper, offering a room for rent to a gentleman.  On the following Monday evening she received a telephone call from a man who identified himself as Thomas Frame inquiring if the room had been rented.  The next morning the defendant appeared and identified himself as the person who had called.  Mrs. Horsman requested his credentials and he informed her that after he arrived in Baltimore his wallet containing $ 1800 and his credentials was stolen.  After renting the room, he departed.  During his absence that day Mrs. Horsman received another telephone call from a purported Mr. Bell who advised her that Mr. Frame's bonus of $ 1800 would be delivered to him that day.  When the defendant returned to the house he informed Mrs. Horsman that his check was being wired but [***6]  that he needed money in the meantime to start his men on a construction job, whereupon she loaned him $ 400.  Immediately thereafter, on the same day, he received another telephone call at Mrs. Horsman's home and informed her he needed $ 850 additional.  She protested but agreed to let him have it until that afternoon.  After this advance he again left Mrs. Horsman's home.  While he was away he telephoned her, later that day, that he had to go to Hagerstown to get his trunk containing $ 18,000 in bonds, and explained that he had sold his home when his wife and child were killed in an airplane crash.  He again contacted Mrs. Horsman early the next morning when he instructed her to call him at 8 A.M. as he was expecting a long distance call.  The next morning a woman called at Mrs. Horsman's house inquiring for Mr. Thomas Frame and he answered the call.  Thereafter, he informed Mrs. Horsman his big boss from Chicago had directed him, by wire, to go to the Lord Baltimore Hotel 

 [*577]  before noon that day and meet a Mr. Wilson, who had some stock that his big boss wanted; that if he could get the stock he would be able to double his money and that he only wanted money for this purpose [***7]  until noon.  She then took him to the bank, withdrew $ 4,000 and delivered it to him.  Neither his money nor luggage ever arrived and she never saw him thereafter until his arrest.  No part of the money advanced has ever been returned.  He testified that he had been engaged in the confidence game since 1957; that he was introduced to the game by one Danny Collins with whom he had since been associated; that Collins made the original telephone call to Mrs. Horsman and directed him to go to her home; that Collins further directed him to go back to her home after he had secured $ 1250, which he did and obtained $ 4,000 additional; that Collins' share of the deal was to be $ 3,000 and that, although he had sufficient monies from his race track winnings, a short time after the loan from Mrs. Horsman, to repay her in full as well as pay Collins his share he did not do so because he considered what he had won at the track his personal property.  He further stated he entered into the Horsman deal to turn Collins over to the police and did not intend "to beat" Mrs. Horsman out of her money.  Several clerks at the defendant's apartment house testified and none recalled any incoming calls received [***8]  by him in support of his statement that he received many calls from Collins during his stay there from April 5, 1963 to May 17, 1963.
On May 2, 1963, Mrs. Horsman made a formal complaint concerning the incident to the Baltimore City Police Department.   [**495]  Based on her identifying description, the defendant was apprehended at his Baltimore apartment on May 17, 1963.  When the police took him in custody, he gave his name as James Francis Bell and introduced his wife as Mrs. Bell.  At the police station he first denied any knowledge of matters concerned in Mrs. Horsman's complaint and gave permission to search his apartment. In his apartment the police found lists of telephone numbers representing persons who had advertised rooms for rent.  Opposite some of the numbers were placed the letters "N.G." which he explained meant no good, that is: that either a man answered the call or whoever answered did not sound like a good house.  Also found in the apartment was an identification 

 [*578]  card in the name of James Frame and a social security card in the name of James Francis Smith.
The court in its instructions to the jury said in effect there were three elements which constituted [***9]  the crime of obtaining money by false pretenses in violation of Section 140, Article 27, Code (1957), namely: -- (1) false representation of a past or existing fact; (2) made with intent to defraud; and (3) that the victim actually relied on the false representations to her loss.  He further stated that if the jury found these three elements to have been established beyond a reasonable doubt it was immaterial whether the money obtained was loaned, advanced as a speculation or otherwise transferred; that the statute made no mention of a loan although it does set forth that a mere promise for future payment not intended to be performed shall not be sufficient to authorize a conviction.  The defendant excepted to that portion of the charge dealing with the matter of whether the statute included a loan transaction and contended that it was not so inclusive.
The defendant's motions for judgments of acquittal at the conclusion of the State's case and the whole case were denied.  He contends the trial court committed reversible error: -- (1) in denying his motions; (2) in allowing his verbal confession to be introduced in evidence over objection; and (3) in its instructions to the jury [***10]  which in effect set forth that a loan was not excluded from the statute.
This Court set forth the elements necessary to establish guilt under the subject statute (Code (1957), Article 27, Section 140) in Davis v. State, 229 Md. 139, 141, where it said:

"In order to convict an accused on the charge of obtaining money or property by false pretenses, the State must show that there was [1] a representation of a past or existing fact [2] made with intent to defraud, and [3] that the operation of such representation as a deception induced a transfer and the obtaining of the money or property by the person committing the fraud to the loss of another.  Marr v. State, 227 Md. 510, 177 A. 2d 862; *** Willis v. State, 205 Md. 118, 123, 106 A. 2d 85." (Numerals supplied.)

 [*579]  In respect to the first element it appears that the material representations of the defendant to Mrs. Horsman were: -- (1) that he was engaged in the construction business and needed money to pay his men; (2) that he had his wallet stolen containing his credentials and $ 1800 soon after his arrival in Baltimore; (3) that he was to receive immediately a bonus of $ 1800; (4) that he [***11]  had $ 18,000 in bonds in a chest in Hagerstown which represented the proceeds from the sale of his home; (5) that he had received a wire from his boss in Chicago suggesting that he buy certain stock from a Mr. Wilson within a few hours and that it presented an opportunity to double his money; and (6) that he was a widower without children.  All of these representations were admitted by the defendant to be false.  They all concerned past or existing facts and therefore constituted legally sufficient evidence upon which the jury could find the existence of the first essential element. In respect to the  [**496]  second element, that is, an intent on the part of the defendant to defraud the victim, the heretofore mentioned false representations when considered in the light of all the circumstances in this case appear to constitute an abundance of evidence from which the jury could find an intent on the part of the defendant to deceive and defraud Mrs. Horsman by persuading her to loan him money in reliance upon such false representations.  We, therefore, find that the evidence was legally sufficient to warrant a finding of the second essential element. In respect to the third element,  [***12]  that is, that the false representations did in fact cause Mrs. Horsman to loan money to the defendant to her loss, we find the evidence likewise legally sufficient to support such a finding.  The question presented is whether the victim actually relied on the truth of the representations in determining to make the loans which would not have been made but for, nor in the absence of, such reliance.  See Stansbury v. Fogle, 37 Md. 369, 388; Davis v. State, supra; 2 Wharton, Criminal Law and Procedure (Anderson's Ed. 1957), §  600; 22 Am. Jur., False Pretenses, §  26, p. 458.  When the nature and extent of the false representations aforementioned are considered in the light of the sequence of events and the surrounding circumstances, a sufficient factual basis exists for a reasonable inference that the victim in this case was in fact caused and induced 

 [*580]  to make the loans by reason of her reliance upon such false representations and deception. In respect to the requirement that the false representations result in loss to the victim it is obvious from the conduct of the defendant that he never had any intention of repaying Mrs. Horsman and that she has sustained [***13]  a loss of the entire amount loaned him.  We do not here reach the question of the effect of restitution or intended repayment on this type of crime.  For a discussion of this question see 2 Wharton, Criminal Law and Procedure, § §  602, 609, 610.  We hold therefore that there was legally sufficient evidence to support the jury's finding that all three of the elements essential to constitute the crime charged were established beyond a reasonable doubt.
The second contention of the defendant is that his oral confession should not have been admitted in evidence over his objection because the State failed to establish prima facie that it was his voluntary statement.  The rule in respect to the admissibility of confessions in connection with the abandonment or promised abandonment of prosecution is set forth by Judge Horney in Jones v. State, 229 Md. 165. In dealing with a situation in that case where the defendant claimed his alleged confession was involuntary because prior to his statement, the police had threatened to charge his pregnant common law wife "with the gun", and had brought her to the police station and the police claimed they made him no promises nor threatened [***14]  him to induce the confession, this Court found no reversible error in the admission of the confession. In so ruling, the Court said at p. 172:
"Even if the defendant believed that his common law wife would not be held if he confessed, the confession was not thereby rendered involuntary or inadmissible merely because it was made to release another from suspicion of guilt: there must also be sufficient evidence that the confession was actually induced by a threat or promise or other cause.  And in a majority of the cases in other states, as well as in this state, where it was claimed that a confession was inadmissible because it had been induced by a threat of arrest 

 [*581]  or a promise of release of a relative of the accused, and the evidence was conflicting as to the making thereof, it has been held that whether a threat or promise was actually made presents a question of fact." (Emphasis supplied.) See also Rogers v. State, 89 Md. 424.

 [**497]  Concerning the extent of the burden which is upon the State to establish the voluntary character of a confession in order to accomplish its admission, this Court said in Ralph v. State, 226 Md. 480, 487: [***15]  

"*** the question of the admissibility of the confession was a mixed one of law and fact -- the only duty of the trial court, having first considered the evidence produced on both sides, was to decide whether the prima facie proof was such as to establish that the confession was freely and voluntarily made, leaving *** the ultimate determination of whether the confession was in fact voluntary and whether it should be believed to the *** trier of the facts." See also Hall v. State, 223 Md. 158, 169 and Smith v. State, 189 Md. 596.

The evidence presented in respect to the question of the voluntary character of the confession in this case consisted of the testimony of the police to the effect that upon the defendant learning his wife was in custody he protested her innocence and refused to give a statement until she was released.  That prior to this demand the police had determined to release her for lack of evidence and after the demand did bring her before the defendant and in his presence released her.  After the release the defendant gave the police a verbal statement which was reduced to writing but which he refused to sign until he consulted counsel.  [***16]  The police further testified they did not promise the defendant to release his wife if he would make a statement nor threaten to keep her in custody if he did not do so, nor in any other manner threaten, coerce or make him any promises in order to induce him to make the statement but that it was his free and voluntary act.  The defendant on the contrary testified 

 [*582]  the police did promise him to release his wife if he would give them a statement which promise of reward induced him to make the statement.  The testimony of the police if believed by the trial court was sufficient evidence to establish prima facie that the confession was the free and voluntary act of the defendant.  We hold, therefore, that there was sufficient evidence to support the trial court's ruling that a prima facie case of the voluntary character of the confession had been established so as to justify its admission in evidence for consideration by the jury.
The third contention is that a loan is not within the intended scope of the statute and therefore that the court's instruction setting forth that a loan could constitute the basis for the crime of false pretenses, if all other necessary elements [***17]  are established, is in error.  The statute provides in part:
"Any person who shall by any false pretense obtain from any other person any chattel, money or *** with intent to defraud any person of the same, shall be guilty of a misdemeanor, * * *."

This question is apparently one of first impression in this State although there appears to have been consistent interpretation of similar statutes in other jurisdictions.  The general law on the subject is set forth in the text of 2 Wharton, Criminal Law and Procedure (Anderson's Ed. 1957), §  595, where it is stated:

"The crime of obtaining money by false pretenses is committed by one who procures a loan of money by reason of fraudulent misrepresentations *** concerning his occupation, *** his interest in or ownership of the property, or his financial condition."

The same rule is also set forth in the text preceding the citation of numerous supporting cases in other jurisdictions in an annotation dealing with the subject in 24 A.L.R. 397. It is there set forth, in substance, that while the obtaining of a loan upon a representation to repay without any intent to do so will not, standing alone, be  [**498]   [***18]  sufficient to constitute the crime of false pretenses where one obtains a loan by false representations relating to a past or existing fact he may be convicted 

 [*583]  of such a crime.  See also a supplemental annotation in 52 A.L.R. 1167. Based on these authorities and what appears to be the clear weight of authority as well as the obvious meaning of the wording of the statute which prohibits the obtaining of money by false pretense we hold that a transaction which involves the obtaining of money by a loan rather than by some other form of transaction and which results in the person making the false representations coming into the possession of the money or property of another by deception is within the intent, and indeed literally within the wording, of the statute provided the three essential elements aforesaid, are established.
Judgment affirmed.  

108 of 138 DOCUMENTS 

LePORE v. GULF OIL CORPORATION AND WALTERS 

No. 157, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 591; 207 A.2d 451; 1965 Md. LEXIS 764 

March 3, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed, with costs.  

HEADNOTES:

Torts -- Committed By Employee On Third Person While Collecting Employer's Debt -- Responsibility Of Employer -- No Liability Found Here.  The question presented in the instant case was whether an employer can be held liable for a wanton assault upon a third person by an employee who had gone to the third person's place of business to collect a debt due the employer, lost his temper in a quarrel arising out of the attempted collection, and struck the third person. The Court stated that in this case, the record showed that the only authority of the employee was to attempt to make a collection and to call his employer if he failed to do so.  It was held that this, without more, was insufficient to make the subsequent assault an expectable act done in furtherance of his employment and he was, therefore, acting without the scope of his employment.  Further, there was no evidence or contention that the employer knew of any propensity to violence on the part of the employee, or that it ratified his wrongful act.  Thus, the directed verdict in favor of the employer in [***2]  this suit for wanton, malicious assault and battery was held proper.  

SYLLABUS:

Suit for wanton, malicious assault and battery by Charles A. LePore against the Gulf Oil Corporation and Lester K. Walters, Jr.  From the trial court's directed verdict in favor of the Gulf Oil Corporation and the judgment for costs entered thereon, the plaintiff appeals.  

COUNSEL:
Alan Edgar Harris for appellant.
Joseph G. Finnerty, Jr., with whom was E. Clinton Bamberger, Jr., on the brief, for Gulf Oil Corporation, one of the appellees.  No brief -- No appearance for other appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Robert E. Clapp, Jr., J., Associate Judge of the Sixth Judicial Circuit, specially assigned.  Clapp, Jr., J., by special assignment, delivered the opinion of the Court.  

OPINIONBY:
CLAPP, JR.  

OPINION:

 [*592]   [**451]  This appeal had its inception in a suit for wanton, malicious assault and battery brought by the appellant, the plaintiff below, against the appellee, Gulf Oil Corporation, and Lester K. Walters, Jr., its servant and employee, alleged to have been acting in the course of his employment.  At the conclusion of all of the 

 [*593]  testimony,  [***3]  the trial court directed a verdict in favor of the appellee, Gulf Oil Corporation, because there was no evidence in the case  [**452]  legally sufficient to form the basis for a jury finding that the assault was within the scope of the employment or authority of the codefendant, Walters, or reasonably foreseeable by his employer, the appellee.
The case was submitted to the jury against Walters only and resulted in a verdict and judgment against him in the amount of $ 1,150.00.  Judgment was entered for the appellee for costs and this appeal was duly noted from the latter judgment.
The only question here presented is whether the trial court properly directed the verdict in favor of the appellee.  We must, therefore, determine whether the evidence and the reasonable and proper inferences to be drawn therefrom were sufficient to require the submission to the jury of the issue whether the appellee was responsible for the assault by Walters.  This requires us to consider the evidence in a light most favorable to the appellant.  Grue et al. v. Collins, 237 Md. 150. See also Lewis v. Accelerated Express, 219 Md. 252.
Considered in this light, the evidence against the appellee [***4]  may be summarized as follows:
Lester K. Walters, Jr. was employed by Gulf Oil Corporation as a salaried retail sales representative under the direct supervision of an area sales manager and his assistants.  He was responsible for most of the activities of Gulf in his assigned territory, this including promoting service station outlets, securing operators, and helping to train and counsel them in merchandising the products of the appellee.  He had no authority to accept or reject an applicant nor to vary any terms agreed upon between the appellee and its operators.
One of the methods of business operation between the appellee and its service station operators was a so-called "bailment plan" whereby the appellee would fill the tanks of the operator under such a plan with gasoline, ownership thereof being retained in the appellee until it was sold by the operator.  It was one of the duties of Walters to call periodically upon operators working under such a bailment plan to collect the monies due appellee from sales of gasoline made since the previous collection 

 [*594]  period.  If the service station operator did not have his settlement account ready and the money available when [***5]  Walters called for it, he, Walters, had to call his superiors for further instructions.
The appellant had been procured as an operator for the appellee in April of 1961, largely upon the recommendation of Walters.  He had little capital and had to sign a note to the appellee for a part of the gasoline and oil used to stock his station.  Several months later, because of the appellant's continued financial difficulty, Walters suggested to him that he might switch to the bailment plan which would relieve him of the necessity of paying for gasoline while it was in his tanks and would only require him to pay for the gasoline as it was sold.  The appellant agreed to this and believed that, in some way, although he was still indebted on his note, he would receive back from the appellee some of the funds previously paid for gasoline then in his tanks and bought while operating under the former plan.  Walters assured him that he would cooperate with him to obtain a return of these funds if possible.  Apparently the change in the method of operation was not of too great assistance to the appellant because he was frequently slow in making his payments to Gulf even under the bailment system.  [***6]  
On November 20, 1961, Walters called upon the appellant to collect not only the payment due appellee that day but also a previous payment that had been missed.  An argument ensued about the fact that the appellee had not returned to the appellant the funds that he had expected.  The testimony of the appellant and Walters as to what exactly occurred differs greatly  [**453]  but, for the purpose of this decision, we must accept the version most favorable to the appellant which, in his language, is as follows:
"So on November 20, 1961, during our conversation we had we both got hot, he started using foul language.  We were talking about Mr. Magnella [Walters' superior].  He said Mr. Magnella was helping me all he can about the business of the bailment. He said I ought to be grateful.  So I said, 'All you are is a messenger boy between the Company and myself', and he 

 [*595]  just came over the top of the desk and hit me and I was knocked to the floor.  I was tight up in the chair and hit the back of the rack.  He picked me up off the floor, and he said that he was going to take me outside and beat the s-h-i-t out of me.  I said, 'This is assault and battery'.  He turned [***7]  and ran out, so I notified my fiancee, which is now my wife."
It is admitted by both parties to this appeal that Walters was the employee of the appellee and we are not, therefore, faced with the question presented in Globe Indemnity Co. v. Victill Corporation, 208 Md. 573, dealing with the responsibility of a principal for the actions of an agent who is not a servant.
The established principle in Maryland for determining the liability of an employer to third persons for the actions of his servant is stated in Hopkins Chemical Co. v. Read Drug and Chemical Co., 124 Md. 210 at page 214 as follows:

"'The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master's business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him.  By 'authorized' is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.'" (Quoting from Wood on Master and Servant, sec. 279). [***8]  
This language was quoted and approved in Lewis v. Accelerated Express, supra, and the test, as above set forth, must be applied to the facts of each case.
The problem here presented is whether an employer can be held liable for a wanton assault upon a third person by an employee who has gone to the third person's place of business to collect a debt due the employer, lost his temper in a quarrel arising out of the attempted collection, and struck the third person.

 [*596]  Cases on this question are collected in 22 A.L.R. 2d 1227, and the annotator summarizes their holdings at page 1229 as follows:

"Summary.
Although an employer is clearly not liable for an assault committed by an agent or servant engaged in collecting the employer's debts where the connection between the assault and the duty of collection is entirely coincidental, or where the assault is motivated solely by the employee's personal interests, there appears a distinct split of authority, at least as to results, in the closer cases where the assault arises, at least indirectly, from the collector's efforts to carry out his duties.
While the actual reasoning of the courts is somewhat obscured by [***9]  the use of generalities as to scope of employment and implication of authority, there appears to be some justification for collecting the decisions under two general rules, (1) that the employer may be held liable for the assault complained of where it is done during the 'course' of the employment or is caused, even  [**454]  though indirectly, by the attempts to enforce payment, and (2) that the master is not chargeable with liability for the collector's assault unless the violence used was more than a merely incidental result of the attempted collection, but was intended by the servant to carry out the employer's purposes, and, further, that the employment in question must have been of a nature which reasonably contemplated the use of force as a not unlikely means of carrying out its duties. And, under the second rule, employment for the purpose of collecting debts has uniformly been held not to be an employment contemplating the use of force."
Harper and James, The Law of Torts, Vol. 2, §  26.9, page 1392, deals with the question as follows:
"Perhaps the most troublesome case is that where the master's affairs are not being furthered but the 

 [*597]  servant hurts [***10]  plaintiff in a quarrel that does arise out of the employment.  A truck driver and plaintiff collide, for example, and in the altercation so likely to follow such an incident the driver loses his temper and strikes plaintiff.  Or a restaurant counterman is angered by insults over the matter of a sandwich and hits a customer.  The majority of courts do not allow recovery in these cases except where it can be rested on some narrower ground such as the nondelegable duty, or negligence in employing a man known to be hot-tempered.  Some decisions point to a broader liability, however, and recent opinions of the California Supreme Court have set forth compelling arguments for it along the line of workmen's compensation cases holding that similar injuries (to workmen) arise out of and in the course of their employment."
The Restatement of Agency 2d, §  245, dealing with the use of force by a servant, states the rule to be:
"A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant's employment, although the act was unauthorized, if the act was not unexpectable in view of the [***11]  duties of the servant."
Comment c, thereunder, page 539, says:
"Nature of employment.  Whether or not an employment involves or is likely to lead to the use of force against the person of another is a question to be decided upon the facts of the individual case.  To create liability for a battery by a servant upon a third person, the employment must be one which is likely to bring the servant into conflict with others.  The making of contracts, or the compromise, settlement, or collection of accounts, does not ordinarily have this tendency.  On the other hand, the employment of servants to guard or to recapture property, to take possession of land, or to deal with chattels which are in the 

 [*598]  possession of another, is likely to lead to altercations, and the master may become liable, in spite of instructions that no force shall be exerted against the person of the possessor." (Emphasis added).
The decisions of this Court dealing with the use of force by a servant are in accord with the above authorities.  For instance, in Railway Co. v. Peacock, 69 Md. 257, an assault and battery case, a streetcar conductor had quarreled with a passenger about taking [***12]  his seat in the car.  Subsequently, the passenger left the streetcar where the quarrel had occurred to go to the office of the company and make a complaint.  Shortly thereafter, the conductor left the streetcar and assaulted and beat the passenger on the public street.  It was held that the conductor was not acting within the sphere of his duty or scope of his authority because, "[h]e left and stepped aside from both in order to gratify his  [**455]  spleen." In affirming the grant of a directed verdict for the company, this Court at page 262, stated:
"Judge Cooley, in his work on Torts, 535, says: 'the liability of the master for intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master's business.  It does not arise when the servant has stepped aside from his employment to commit a tort which the master neither directed in fact, nor could be supposed, from the nature of his employment, to have authorized or expected the servant to do.'" (Emphasis added).
The above case, of course, is not one involving the attempted collection of a debt but is cited merely to show the early adoption by this [***13]  Court of the present general rule relating to the use of force by an employee.
An example of the application of this rule to an employee attempting to make a collection is found in Steinman v. Laundry Co., 109 Md. 62. In this case a laundry truck driver had delivered blankets to a customer on which the cleaning charges of his employer were unpaid.  Under the rules of the employer, the driver was required to collect such cleaning charges upon 

 [*599]  delivery and if he made delivery without collection, he was personally liable for them to his employer.  The evidence was undisputed that the driver went to the home of the plaintiff on his own initiative to repossess blankets previously delivered by him without collecting the charges for them.  An assault of the plaintiff took place and suit against the employer followed.  It was held as a matter of law, that the employer was not responsible to the plaintiff, this Court saying that there could be no liability on the employer's part since its servants were instructed not to leave goods without receiving payment and that, when credit was extended by one of the servants, he was responsible for the money involved and was therefore [***14]  acting on his own behalf in attempting to make the collection.
On the other hand, in Patapsco Loan Co. v. Hobbs, 129 Md. 9, there was evidence that the defendant's employee, who was the secretary, treasurer, and general manager of the company, and its agent for the purpose of collecting loans, called at the plaintiff's house for the purpose of collecting payment of an overdue loan.  He forced his way into the plaintiff's sickroom and when the full amount of the debt was not forthcoming, got excited, approached her bed, shook his finger in her face, and threatened to "clear you out" unless the debt was paid.  It was held that this evidence was sufficient to sustain a jury verdict for the plaintiff because from it, the jury might find that the employee became a trespasser ab initio (the action was in trespass with injuries from the assault laid as consequential damages) and that the injuries complained of resulted from this trespass which was committed in furtherance of the employer's business.  It is obvious that the case is distinguishable from the present case because there was evidence that, throughout, the employee was attempting to collect a debt due his employer and never [***15]  departed from this purpose.
An implicit, though not explicit, rationalization of these two cases is found in Carroll v. Hillendale Golf Club, 156 Md. 542, involving an action brought by a young boy who was shot by a greenskeeper whose duties involved merely watering, trimming and otherwise maintaining the premises of the club. The plaintiff was trespassing upon the club grounds at the time and the evidence disclosed that the gun was owned by the greenskeeper 

 [*600]  and carried by him because he had recently experienced thefts from his adjoining farm.  A prayer for a directed verdict in favor of the club was granted and in affirming judgment thereon, this Court said at page 546:
"The cases in which the employer has been held liable have generally been  [**456]  those of police officers, watchmen, and railroad trainmen.  In such cases the torts of the servant are usually so related to his employment or occupation as to leave to the jury the determination of the fact of the relation of the servant's torts to the scope of his employment and to the furtherance of the master's business.  In the instant case, in our opinion the record fails to show anything except the exhibition [***16]  of the personal malice, wantonness, and bad temper of the servant, and that, inexcusable as it was, it bore no relation to the scope of his employment or to the appellee's business, and the appellee's prayer was, therefore, properly granted."
We have examined the California cases relied upon by the appellant and mentioned in Harper and James, supra, and find that by statute there, a principal is liable for "wrongful acts" of his agent committed "in and as a part of the" principal's business.  Under this provision it is sufficient, in California, if the injury results from a dispute arising out of the servant's employment.  Carr v. Wm. C. Crowell Co., 28 Cal. 2d 652, 171 P. 2d 5, Fields v. Sanders, 29 Cal. 2d 834, 180 P. 2d 684. There is, of course, no such statute in force in this State.
In the present case the only authority of Walters was to attempt to make a collection and to call his employer if he failed to do so.  We hold that this, without more, is insufficient to make the subsequent assault an expectable act done in furtherance of his employment and he was, therefore, acting without the scope of his employment.  There is no evidence or contention that the appellee [***17]  knew of any propensity to violence on the part of Walters, or that it ratified his wrongful act.  The direction of a verdict in favor of the appellee was, therefore, proper.
Judgment affirmed, with costs.  

109 of 138 DOCUMENTS 

STIEFF v. COLLINS, et al.  

No. 172, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 601; 207 A.2d 489; 1965 Md. LEXIS 765 

March 3, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Anne Arundel County; Duckett, J.  

DISPOSITION:
Judgment affirmed, appellant to pay the costs.  

HEADNOTES:

Zoning -- Non-Conforming Uses -- Abandonment Of Found Here -- Substitute Non-Conforming Use Was Not Established.  The instant case involved an application for a variance for the reconstruction of a nonconforming use and a twenty-five percent expansion on property located at Linthicum.  Contrary to the appellant's contention, the trial court found that there had been an abandonment of the original nonconforming use in 1958, and that no warehouse use had been established as a substitute nonconforming use. The Court stated that in the case at bar, cessation of operation of the plant as a dairy and bakery, the dismantling and sale of the machinery and equipment, the placing of it in other plants of the owner, and the continued cessation of operations for about five years with utilization of the buildings principally for storage of the company's unusable and unsaleable equipment, established by reasonable inference: (1) an intent of the owner to abandon the location for use as a dairy and bakery operation, and (2) a decision neither to claim nor to retain [***2]  any further interest in its dairy or bakery operation at this location.  Therefore, it was held that there was no error in the trial court's ruling that there had been an abandonment of the nonconforming use for more than one year prior to 1963.  The Court went on to state that it seemed clear that there was no intention on the part of the prior owner to use the property other than casually and temporarily for its own purposes as a storage warehouse. The evidence showed that the company was selling the surplus equipment stored in these buildings either for use elsewhere or as junk, and it was therefore probable that eventually it would have little or no surplus equipment to store there and consequently, little, if any, use, for the buildings for this purpose.  Thus, it was also held that there was no error in the trial court's ruling that the evidence was insufficient to establish a "warehouse use" as a substitute nonconforming use within the meaning of section 35-92(b) of the Anne Arundel County zoning ordinance, which contemplated a regular and consistent use rather than a temporary and casual one.  

SYLLABUS:

Application by John H. Stieff for the reconstruction of a nonconforming [***3]  use.  From the ruling of the Board of Zoning Appeals granting the application, Zane L. Collins, and others appealed.  The Circuit Court for Anne Arundel County reversed the Board's ruling and from the judgment entered thereon, Stieff appeals.  

COUNSEL:
Submitted by Thomas J. Curley for appellant.
Submitted by S. Alfred Mund for appellees.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Carter, C. J. of the Second Judicial Circuit, specially assigned.  Carter, J., by special assignment, delivered the opinion of the Court.  

OPINIONBY:
CARTER 

OPINION:

 [*602]   [**490]  This is an appeal from a decision of the Circuit Court for Anne Arundel County reversing a ruling of the Board of Zoning Appeals which granted a variance for the reconstruction of a nonconforming use and a twenty-five per cent expansion on property consisting of about one acre and buildings located at Linthicum, in the Fifth Election District of the County, in a use district zoned "agricultural."
The evidence presented by the record of the proceedings before the Board and the additional testimony permitted by the Circuit Court at the hearing on appeal, under the authority of Section 7(1) of Article 66B,  [***4]  Code (1957), established the following facts: At the time of the adoption of a comprehensive zoning ordinance for Anne Arundel County, July 1, 1952, the 

 [*603]  subject property was owned and operated as a commercial dairy by Old Oak Dairy, Inc. which was privileged to continue its existing nonconforming use in an agricultural district pursuant to the provisions of the zoning ordinance, section 35-10.  In 1952, the H. E. Koontz Creamery, Inc. acquired the property and continued to pursue the nonconforming use which consisted of the operation of a bakery for the production of doughnuts and a dairy depot for the pasteurization and distribution of milk and milk products.  This operation ceased in the fall of 1958.  Thereafter, the dairy plant was partially dismantled and the equipment was either sold or used in other dairy operations of the company except for a small part thereof left in the buildings.  The bakery equipment was likewise dismantled and removed within a year subsequent to discontinuance of its operation.  After 1958 the company acquired five or six small dairies, from which it moved the equipment that could be used in its main plant at Baltimore, to such plant, and [***5]  attempted to sell the remainder.  The equipment from these dairies which could not be immediately used or sold was stored in the buildings at this location.  Surplus equipment from the Baltimore plant was also stored there.  These buildings have been boarded up and locked since cessation of operations in 1958, without a watchman.  The only activity since that time consisted of trucks bringing materials to be stored and taking equipment out which occurred fifteen to twenty times a year.  No trucks were left at the site and no materials stored outside the buildings.
The decisive questions presented to the Board and trial court for determination were: (1) was there an abandonment of the original nonconforming use at the time of cessation of the dairy and bakery operations in 1958, which continued for more than one year prior to the hearing on May 14, 1963, and (2) in the alternative, was there a lawful substitute nonconforming use established at the time of cessation of operations in 1958, which has continued since that date.  Nonconforming uses are usually permitted by the express terms of zoning ordinances and are so permitted in this case by the provisions of section 35-10, which [***6]  provides in part:
"A lawful nonconforming use existing on the effective date of the adoption of this chapter may continue; 

 [*604]  provided, however, *** in the case of the abandonment of such nonconforming use for the period of one year, the right to continue such original nonconforming use shall cease.  A nonconforming use may change to a use permitted in the most restricted district in which such existing nonconforming use is permitted under this chapter or to a more restricted classification."

This section further provides that the Board may grant a variance of a nonconforming use for an expansion of not more than twenty-five per cent of the area occupied by the use.
The appellant who had purchased the property from Koontz in 1962, applied to the Board in April, 1963, for recognition of a substitute nonconforming use, that is, a "warehouse use" which he claimed was  [**491]  then the existing use.  He also requested permission for a machine shop which was of the same classification as the warehouse use and a variance allowing an increase of not more than twenty-five per cent of the use area, which was to be housed by a single new structure that would function [***7]  in the main as a warehouse and to a lesser degree as a shop for the repair of machine parts.  Under the ordinance the heavy commercial use district is the most restricted district in which the original nonconforming use of a dairy and bakery operation is permitted.  Section 35-92(b) of the ordinance provides that the permitted uses in such heavy commercial district shall include both a warehouse and a machine shop use.  It appears, therefore, that either or both of these uses, if established, would constitute a lawful substitute nonconforming use under the provisions of the ordinance (section 35-10).  The trial court reversed the Board by finding there was an abandonment of the original nonconforming use in 1958, and that no warehouse use had been established as a substitute nonconforming use. The appellant contends the trial court erred in both findings.
Nonconforming uses are usually allowed to continue with the expectation that they will eventually disappear, the objective being to extinguish them as early as possible with due regard to the lawful interest of those entitled to such use.  See Dorman 

 [*605]  v. Mayor & C. C. of Balto., 187 Md. 678, 684; Grant v. City of  [***8]   Baltimore, 212 Md. 301, 307; Phillips v. Zoning Commissioner, 225 Md. 102, 109. The criteria by which abandonment of a nonconforming use is determined are set forth in Landay v. Zoning Appeals Board, 173 Md. 460, 469, where the Court said:
"Abandonment in law depends upon the concurrence of two, and only two, factors; one an intention to abandon or relinquish; and two, some overt act, or some failure to act, which carries the implication that the owner neither claims nor retains any interest in the subject-matter of the abandonment. 1 C.J.S. Abandonment, 8.  Time is 'not an essential element' of abandonment, although the lapse of time may be evidence of an intention to abandon *** and where it is accompanied by acts manifesting such an intention it may be considered in determining whether there has been an abandonment."

The question of the establishment of a substitute nonconforming use depends on whether the party asserting such use establishes by a preponderance of evidence that the subject property has been used consistently and was intended to be used permanently for the purpose of such use, as contemplated by the ordinance, rather than casually or [***9]  temporarily. For the rule in respect to the burden of proof in the assertion of a nonconforming use, see Lapidus v. Baltimore City, 222 Md. 260, 262. For authority that a casual or temporary use is not sufficient to establish a nonconforming use, see Mayor & C. C. of Balto. v. Shapiro, 187 Md. 623, 634; Beyer v. City of Baltimore, 182 Md. 444, 452.
In the Beyer case the situation was strikingly simliar to the instant case.  There the owner's right to continue to use the property for a nonconforming use, as here, depended upon whether there has been an abandonment of the original nonconforming use or in the alternative a substitute nonconforming use, permitted under the ordinance, had been established.  In that case, the original slaughter house nonconforming use ceased operation in 1938 after which a large part of the machinery 

 [*606]  was dismantled and sold.  A for-sale sign was posted on the property and the smoke stack torn down.  From 1938 to the date of the application in 1943, the buildings were  [**492]  used as storage for the small portion of slaughter house machinery which was not dismantled and sold, as a garage on the first floor and for the storage [***10]  of items of a furniture company on the second, third and fourth floors.  The president of the company that operated the slaughter house testified that the company did not intend to permanently abandon this use of the property when operations were discontinued in 1938.  Nevertheless, under these facts the Court held there had been an abandonment of the original nonconforming use, that is: (1) that there was an intent on the part of the owner to abandon the slaughter house operation at the subject location, and (2) that the overt acts on its part, consisting of the discontinuance of the operation, the dismantling and sale of the machinery and offering the property for sale, implied an intention of the owner to neither claim nor retain any interest in the further operation of a slaughter house business at that location (the subject matter of the abandonment), which constituted the two essential factors necessary to bring about the abandonment of a nonconforming use under the rule.  We further there held the evidence was insufficient to establish a substitute nonconforming use of a storage warehouse. In so holding we pointed out that while the storage of furniture in the warehouse was [***11]  extensive, and the buildings had been used to store some equipment employed in the former operations, and that such uses lasted for a considerable time (five years); nevertheless, the utilization of the buildings did not appear to have been intended as a permanent use but rather as a casual and temporary one.  We, therefore, held the evidence was insufficient to prove the establishment of a new substitute nonconforming use within the meaning of the ordinance.
In the instant case, cessation of operation of the plant as a dairy and bakery, the dismantling and sale of the machinery and equipment, the placing of it in other plants of the owner and the continued cessation of operations for about five years with utilization of the buildings principally for storage of the company's unusable and unsaleable equipment, establish by reasonable inference: (1) an intent of the owner to abandon the 

 [*607]  location for use as a dairy and bakery operation, and (2) a decision neither to claim nor to retain any further interest in its dairy or bakery operation at this location.  These conclusions appear fully warranted by the established facts and circumstances of the case, heretofore related,  [***12]  and we therefore find no error in the trial court's ruling that there had been an abandonment of the existing nonconforming use for more than one year prior to 1963.  It seems equally clear, particularly in the light of the Beyer case, that there was no intention on the part of the Koontz Company to use the property other than casually and temporarily for its own purposes as a storage warehouse. Under the facts and circumstances heretofore related, concerning the use of the property after 1958, it is reasonable to interpret the intention of the owner to use the property for only temporary and occasional storage of its surplus equipment after that date.  The evidence shows the company was selling the surplus equipment stored in these buildings either for use elsewhere or as junk, and it is therefore probable that eventually it would have little or no surplus equipment to store there and therefore little, if any, use, for the buildings for this purpose.  It further appears that the "warehouse use" contemplated by the ordinance (section 35-92 (b)), was a regular and consistent use rather than a temporary and casual one.  See the Beyer and Shapiro cases, supra.  We, therefore,  [***13]  find no error in the trial court's ruling that the evidence was insufficient to establish a "warehouse use" as a substitute nonconforming use within the meaning of the ordinance.
Judgment affirmed, appellant to pay the costs.  

110 of 138 DOCUMENTS 

WILEY v. STATE 

No. 173, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 560; 207 A.2d 478; 1965 Md. LEXIS 759 

March 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Attempted Crimes -- Overt Act Completes The Attempt -- Instructions To Jury Were Correct Here -- Attempt To Break With Intent To Steal.  The appellant who was convicted of attempting to break into a real estate office with intent to steal goods and monies therein, contended that the trial judge erroneously did not instruct the jury that they should find him innocent if they found that after an initial attempt to break and enter the office, he voluntarily abandoned his effort.  However, the Court stated that the law is to the contrary and held that the trial judge's instructions on the crime of attempt correctly stated to the jury the applicable law. An attempt to commit a crime consists of an intent to commit it, the performance of some act towards its commission, and failure to consummate its commission.  Once that intent has been furthered by an overt effort towards its consummation -- and appellant testified that this was the fact -- the crime of attempt to break in order to steal was complete and, as the court told the jury, it was immaterial as a matter of law whether appellant [***2]  stopped the attempt because he was interrupted by the police, as the State showed, or whether he voluntarily discontinued his efforts, as he said.  Further, an accused is not entitled to an instruction of law if there has been no evidence in the case which will support the instruction or to which it could be applied.  The appellant's own testimony left no room for a finding that he had abandoned his intent to break into the office before he had committed an overt act.
Instructions to Jury -- Criminal Case -- Charge Was Correct As To The Law -- Phrase Containing Court's Opinion And Interpretation of The Law Held Not Prejudicial Here.  In the instant case involving an attempt to break into a real estate office it was held that inasmuch as the appellant had conceded from the stand that he had actually physically begun the attempt to break in, the trial court's phrase in the instruction pertaining to the attempted breaking, that under either the State's testimony or that of appellant "*** it appears to me that the violation has been committed as charged in the fourth count of the indictment" was no more, in the context of the charge as a whole, than an instruction as to "* *  [***3]  * the Court's opinion of what the law is and the manner in which the Court interprets it." Since the instruction was correct on the law applicable to the admitted facts and the jury also had been instructed by the judge that they were free to disagree with the court's interpretation of the law and could determine it for themselves, as they could the facts, the Court felt that no prejudicial error arose from the form in which the judge phrased the conclusion of his charge on the crime of attempt.
Rogues and Vagabonds -- Evidence Was Sufficient To Permit A Finding Of Guilt -- Trial Court's Charge Correctly Stated The Law.  

SYLLABUS:

Walter Jerome Wiley was convicted in a jury trial of attempting to break into a real estate office with intent to steal goods and monies therein, and of being a rogue and vagabond, and from the judgment entered thereon, he appeals.  

COUNSEL:
Harvey N. Zimmerman for appellant.
Carville M. Downes, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Stanley A. Cohen, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

JUDGES:
Prescott,  [***4]  C. J., and Hammond, Horney, Marbury and Oppenheimer, JJ.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*562]   [**479]  The appellant Wiley seeks to reverse his convictions on charges of attempting to break into a real estate office with intent to steal goods and monies therein, and of being a rogue and vagabond, on the grounds that the trial judge erred in his charge to the jury, (a) in not instructing that if Wiley "*** had attempted to break and enter the premises but prior to his entry voluntarily abandoned his effort * * *" their verdict must be for Wiley, (b) in instructing the jury that if Wiley had done an overt act in furtherance of his intended effort to break into the office he had committed the crime of attempt charged, even though thereafter he had voluntarily abandoned his attempt and left the premises before he succeeded in the breaking, and (c) in instructing "*** that a man can be guilty of a rogue and vagabond offense if he merely walks up to a door with a crowbar in his hand and if you can find from that he intended to break in * * *" (the ground of objection to the last instruction is that it omits the requirement the appellant [***5]  thinks necessary, that there must be a concurrently existing felonious intent).
A police officer testified that he surprised Wiley and another man (who turned out to be Wiley's brother) in a vestibule at twelve-twenty a.m. on a Saturday, tampering with the door of a real estate office on Pennsylvania Avenue in Baltimore.  Wiley had wedged a large pinch bar between the door and the jamb, aimed at the lock, and was trying to pry the door open by pushing on the bar and using the weight of his body.  His brother was trying to help with a screw driver.
The owner of the real estate office said that when he closed the place at noon on Friday the door was in normal working order and unmarred, and when he arrived on Saturday morning, in response to a call from the police, he could not open the door, the jamb looked like it had been "scraped with some instrument" and the door lock, even after a locksmith had worked on it, was still bent.
Wiley's version of the incident was that he intended to break in the office and had started to break in and that "*** I had only hit the door with it [the pinch bar] twice *** and *** 

 [*563]  I just got scared and I abandoned the idea of breaking [***6]  in the place." He said the screw driver and pinch bar were his and he had laid them on the door sill and walked down the street, when a few seconds later, three doors away, the officer arrested him.
 [**480]  In addition to the standard instructions as to the presumption of innocence and the burden of the State to prove guilt beyond a reasonable doubt, Judge Grady charged the jury that they were the judges of both the law of the case and the facts of the case and, consequently, what he said to them about the law was no more than the court's interpretation of what the applicable law is.  He told the jury: "You are at liberty to disagree with the Court's interpretation of the law and you shall determine what the law is yourselves and then apply the law as you find it to the facts as you find them and render your verdict accordingly."
As to the charge of attempt, Judge Grady said to the jury:

"In this case I advise you that this man, you may find from all the evidence, had some idea, something in his mind, and that you may find from the evidence that he actually began to put this intention into execution, but that he was stopped, according to the State's evidence, or according [***7]  to his own evidence he stopped voluntarily.  I advise you that if you believe this man had in his mind the idea of breaking and entering these premises and pursuant to that idea then did a physical act by inserting an instrument into the door and prying on the door, then I advise you at that moment an attempt to enter has been completed and whether he then discontinued the attempt or whether he was interrupted in the attempt is of very little importance, because the crime had already been committed, namely, an effort combined with a plan to go into these premises."
Wileys' complaint, that the judge erroneously and to his prejudice did not instruct the jury that they should find him innocent if they found that after an initial attempt to break and enter the office, he voluntarily abandoned his effort, is unjustified.  The law is to the contrary.  An attempt to commit a crime 

 [*564]  consists of an intent to commit it, the performance of some act towards its commission, and failure to consummate its commission.  22 C. J. S. Criminal Law Sec. 75 (1), p. 228, and Hochheimer, Crimes and Criminal Procedure (2d Ed.), Sec. 266, p. 297.  The text writers and the cases agree [***8]  that generally, if one who has intended to attempt to commit a crime freely and voluntarily abandons the idea before it has progressed beyond mere preparation, he has not committed the crime of attempt; but that a voluntary abandonment of an attempt which has proceeded beyond mere preparation into an overt act or acts in furtherance of the commission of the attempt does not expiate the guilt of, or forbid punishment for, the crime already committed.  22 C. J. S. Criminal Law Sec. 76, p. 234; Clark and Marshall, Crimes (5th Ed.), Sec. 121, p. 178; 1 Wharton's Criminal Law (12th Ed.), Sec. 226, p. 305; 1 Bishop, Criminal Law (9th Ed.), Secs. 208 (a), 732, 733; People v. Robinson (Dist. Ct. App. 2d Dis.), 4 Cal. Rptr. 679; People v. Stewart (Calif.), 32 Pac. 8; Glover v. Commonwealth (Va.), 10 S. E. 420, 421; Huggins v. State (Ct. App. Ala.), 142 So. 2d 915, cert. den. 142 So. 2d 918.
Judge Grady's instructions on the crime of attempt correctly stated to the jury the applicable law. An accused is not entitled to an instruction of law if there has been no evidence in the case which will support the instruction or to which it could be applied.  Wiley's [***9]  own testimony left no room for a finding that he had abandoned his intent to break into the real estate office before he had committed the overt act of using the pinch bar to accomplish his purpose and, short of testimony which would have permitted such a finding of fact, he was not entitled to have the jury told that they could find him not guilty because of abandonment of his intent to break in and steal. Once that intent had been furthered by an overt effort towards its consummation -- and Wiley testified that this was the fact -- the crime of attempt to break in in order to steal was complete and,  [**481]  as the court told the jury, it was immaterial as a matter of law whether Wiley stopped the attempt because he was interrupted by the police, as the State showed, or whether he voluntarily discontinued his efforts, as he said.
Judge Grady closed his statements on this phase of the case with this sentence:

 [*565]  "Of course, the State's evidence is the attempt was still in progress when the officer arrived on the scene, whereas I advise you that the defendant's evidence is that the attempt had already been completed and committed and that he was leaving the scene [***10]  after attempting to break into these premises.  I advise you that under either circumstances it appears to me that the violation has been committed as charged in the fourth count of the indictment" (Emphasis supplied)

and Wiley says that because of the use of the italicized words the trial judge improperly usurped the function of the jury to decide the facts and the law.
Inasmuch as Wiley had conceded from the stand that he had actually physically begun the attempt to break in, the court's phrase in the sentence complained of, that under either the state's testimony or that of Wiley "*** it appears to me that the violation has been committed as charged in the fourth count of the indictment" was no more, in the context of the charge as a whole, than an instruction as to "*** the Court's opinion of what the law is and the manner in which the Court interprets it," to use the judge's own earlier words.  Since the instruction was correct on the law applicable to the admitted facts and the jury also had been instructed by the judge that they were free to disagree with the court's interpretation of the law and could determine it for themselves, as they could the facts, no [***11]  prejudicial error arose from the form in which the court phrased the conclusion of his charge on the crime of attempt.
The instruction on the law of the crime of being a rogue and vagabond likewise was not erroneous.  Code (1957), Art. 27, Sec. 490, makes it a crime to be in possession of burglar tools "*** at places and under circumstances from which an intent may be presumed feloniously to break and enter * * *" specified buildings, and it also makes it a crime to be found in or upon specified buildings "with an intent to steal any goods or chattels." The testimony of the police (and that of Wiley) permitted a finding of guilt on the second offense provided for in Sec. 490, and the court's charge correctly stated the law as to that offense.
Judgment affirmed.  

111 of 138 DOCUMENTS 

HICKS v. STATE 

No. 203, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 649; 207 A.2d 509; 1965 Md. LEXIS 790 

March 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Receiving Stolen Goods -- Evidence Sufficient To Sustain Conviction -- Test Of Sufficiency In Non-Jury Case Is Whether Evidence Shows Or Supports Rational Inference Of Facts To Be Proved From Which Court Could Be Convinced Beyond Reasonable Doubt Of Defendant's Guilt Of Offense Charged.  

SYLLABUS:

John A. Hicks, Jr., was convicted of receiving stolen goods by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted on brief by Nathan Stern for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, R. Randolph Victor, Assistant Attorney General, Charles E. Moylan, Jr. and Joseph P. Howard, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Marbury, Sybert and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*650]   [**510]  John A. Hicks, Jr., appellant, was found guilty on the second count of an indictment charging him with receiving stolen goods, in the Criminal Court of Baltimore by Judge Harlan, sitting without a jury.  [***2]  He was sentenced to three years in the Maryland Institution for Men, to run consecutively with any sentence for violation of parole.
Two police officers of Baltimore City were cruising in a patrol car in the 1400 block of East Fairmount Avenue on March 28, 1964, when they observed appellant carrying a black suitcase, walking at a rapid pace and acting suspiciously.  When they called to him, he ran into a dead-end alley where he was apprehended.  When questioned about the suitcase, Hicks stated that it was not his but was given to him by someone.  However, after further questioning he revealed that the suitcase had been taken from an automobile on Lombard Street, explaining that three men gave it to him and told him to run or they would assault him.  Appellant went voluntarily with the officers and pointed out a vehicle which had a broken vent window.  The owner of the automobile was located and Hicks was placed under arrest.  His only contention on this appeal is that the evidence was insufficient to sustain a verdict of guilty.  We do not agree.
A review of the record establishes that the evidence produced, and the reasonable and proper inferences therefrom, permitted a finding [***3]  of all of the essential elements of the offense of which appellant was found guilty.  We have held many times that the test of the sufficiency of the evidence in a case tried before the court without a jury is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged.  Kucharczyk v. State, 235 Md. 334, 201 A. 2d 683; Ponder v. State, 227 Md. 570, 177 A. 2d 839; Tasco v. State, 223 Md. 503, 165 A. 2d 456.
Judgment affirmed.  

112 of 138 DOCUMENTS 

LEVY v. BERNSTEIN, Etc.  

No. 182, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 552; 207 A.2d 98; 1965 Md. LEXIS 757 

February 19, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Cardin, J.  

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

HEADNOTES:

Support of Dependents -- Increase In Payments For Maintenance Of Infant Daughter Not Clearly Erroneous -- Credible Evidence To Support -- Specific Findings Not Required Under Circumstances Here.  Upon the filing of a petition in this case by a divorced mother to increase the support payments for the infant daughter of the parties, the Court held that there was credible evidence to support the decree below increasing the payments of the father from $ 25.00 to $ 35.00 a week, and that the decision was not clearly erroneous.  The mother claimed that the cost of maintaining the child had substantially increased as the daughter became older, and the testimony of the father himself confirmed her testimony as to the cost of clothing. The father's testimony also established a substantial change for the better in his economic situation, and the daughter, as a child of professional persons living in a home of professional persons, was entitled to be maintained in accordance with that station in life.  While the chancellor made no specific findings [***2]  of fact, and while it is generally desirable to do so in an equity suit, the Court stated that this was not required in a simple case of this type, there being no request to the chancellor that he should make such specific findings.  

SYLLABUS:

Petition by Ellen R. Bernstein, formerly Ellen R. Levy, to obtain an increase in support payments made by Donald M. Levy, her former husband, for the maintenance of the infant daughter of the parties.  From a decree increasing the payments from $ 25.00 to $ 35.00 per week, the father appeals.  

COUNSEL:
Edward Pierson, with whom were Pierson & Pierson on the brief, for the appellant.
Richard C. Murray, with whom was C. John Serio on the brief, for the appellee.  

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

OPINIONBY:
BARNES 

OPINION:

 [*553]   [**99]  This appeal is from the decree of Judge Cardin dated and filed on May 29, 1964 in the Circuit Court No. 2 of Baltimore City in which he amended the decree of December 29, 1962 in the divorce suit between the parties by increasing the support of Faye Levy, the infant daughter of the parties, from $ 25.00 to $ 35.00 a week as [***3]  of May 18, 1964, and provided that the support money be paid through the Probation Department of Baltimore City.
The background of the case is set forth in a previous appeal involving the same parties.  See Levy v. Levy, 229 Md. 103, 181 A. 2d 663. In the prior case Judge Cardin was also Chancellor, and granted the wife permanent alimony and custody of of the infant child.  The alimony granted was $ 10.00 a week, the support money for the infant was $ 20.00 a week, a total of $ 30.00 a week which Dr. Levy was required to pay. At that time the infant was eleven (11) months old.
A bill of complaint for a divorce a vinculo matrimonii, custody of the infant, permanent alimony and support money for the infant was filed by Mrs. Levy on November 20, 1962.  In Dr. Levy's answer to the bill of complaint, he alleged that he had "only been practicing in Norfolk, Virginia for a short period of time and his present income is barely adequate to meet his expenses."
On December 22, 1962, the parties entered into a written agreement in which the right of alimony by the wife was relinquished and the support money for the infant was increased from $ 20.00 to $ 25.00 a week.  This agreement [***4]  was incorporated into the decree of December 29, 1962 granting Mrs. Levy an absolute divorce, the court, however, retaining jurisdiction over the infant and the allowance and payment of support money for the infant.

 [*554]  Mrs. Levy, after her absolute divorce, married Alan Bernstein, a member of the Bar of the State of New York.  She moved to Buffalo, New York and took her infant daughter, Faye Levy, with her.  Dr. Levy's visitation rights were modified to meet this new situation.
In her petition of January 2, 1964 to increase the support money for the infant daughter, Mrs. Bernstein alleged in paragraph 7 that the expenses of raising the infant have increased to the point where $ 25.00 a week would not meet these expenses.  She prayed that the amount of support money be increased from $ 25.00 to $ 45.00 a week payable through the Probation Department of Baltimore City and that Dr. Levy be required to pay a nursery bill of $ 60.00 and future payments with respect to nursery schools.
The Chancellor at the hearing on the petition for increase of support money and Dr. Levy's answer to that petition heard the testimony of Mrs. Bernstein and of Dr. Levy.
Mrs. Bernstein indicated [***5]  that costs of maintaining Faye had substantially increased as Faye had become older. She testified in regard to increases in the cost of food, clothing, toilet articles, games and  [**100]  other items which made the total expenses $ 51.00 a week.  Dr. Levy indicated that his income in 1963 was $ 14,000 although his practice had only begun in September 1962, and that he expected to earn ultimately $ 20,000 a year.  He owes his father approximately $ 11,000 on which loan he pays no interest, and he owes a bank approximately $ 800.  At the time of the hearing Dr. Levy indicated that he expected to marry again within two weeks; it is indicated in his brief in this Court that he has remarried.
Dr. Levy complains in this Court that the testimony of Mrs. Bernstein is incredible and that the Chancellor's decision based on her testimony is clearly erroneous. We do not agree.  It is true that Mrs. Bernstein's testimony was not corroborated by specific receipts and other documentary evidence.  Her testimony in regard to the cost of clothing for the infant, however, is confirmed by the testimony of Dr. Levy himself.  From Dr. Levy's testimony a substantial change in his economic situation [***6]  for the better is established.  Faye is a child of professional persons and lives in a home of professional persons.  She is entitled 

 [*555]  to be maintained in accordance with that station in life.  The Chancellor did not allow the full amount prayed for by Mrs. Bernstein but limited the allowance to $ 35.00 a week.  The credibility of the witnesses was for the Chancellor's determination.  His holdings will not be set aside by us on the evidence unless clearly erroneous, Maryland Rule 886 a, and, in our opinion there is credible evidence to support the decree.
Dr. Levy complains that the Chancellor made no specific findings of fact.  At the end of the testimony there was a conference between counsel for the parties and the Court at the Bench, after which the case was submitted.  The Chancellor then announced his decision, stating:
"After hearing testimony in this case, the Court is of the opinion that the order for the payment of the support of this child should be modified, and will order the payments increased from $ 25 a week to $ 35 a week.  All payments to be made through the Probation Department of Baltimore City; all subject to the further order of this Court.  I [***7]  ask counsel to prepare an appropriate order."
It is apparent from this, we think, that the Chancellor accepted the testimony of Mrs. Bernstein as he had in the case of Levy v. Levy, supra, but was of the opinion that the full amount requested by her was not justified.  Although it is generally desirable to give specific findings of fact in an equity suit, we do not think this was required in a simple case of this type.  No request was made to the Chancellor that he should make such specific findings.  See Maryland Rule 18 c. Cf. Maryland Rule 564 b 2.
Decree affirmed, the costs to be paid by the appellant.  

113 of 138 DOCUMENTS 

FOWLER v. STATE 

No. 134, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 508; 206 A.2d 802; 1965 Md. LEXIS 751 

February 11, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Insanity As Defense -- Where Evidence Of, Sufficient To Overcome Presumption Of Sanity Has Been Introduced, State Then Has Burden Of Proving Sanity Beyond Reasonable Doubt -- Instruction To Jury That Burden Was Upon Defense To Prove Insanity By Preponderance Of Evidence Held Not Reversible Error Here, Where There Was No Sufficient Evidence Of Insanity To Require Submission Of This Issue To Jury.  Under the decision of Bradford v. State, 234 Md. 505, once evidence of insanity has been introduced in a criminal case which, if believed, would be sufficient to overcome the presumption of sanity, the State then has the burden of proving beyond a reasonable doubt that the defendant was sane at the time of the alleged commission of the offense.  In the present case, where the charge to the jury was given six days before the decision in Bradford, the instruction that "the burden is on the defense to prove insanity by a preponderance of the evidence, not beyond a reasonable doubt", should not have been given.  However, since there was no sufficient evidence of insanity to require [***2]  the submission of this issue to the jury, the giving of the instruction by the trial court was held not to be reversible error. There was only one psychiatric expert, and he testified on cross-examination that the defendant knew the difference between right and wrong and the nature and consequences of his act, and that there was no difference of opinion among other experts.
Criminal Law -- Trial Counsel -- Claim Of Alleged Incompetence Of, Held Without Merit.  There was no merit to a contention in the present criminal case that the defendant's trial counsel was incompetent. While the defendant claimed that counsel pleaded him not guilty by reason of insanity against his wishes, the defendant's own testimony showed that he knew of this plea at the time of his evaluation at a State hospital and there was nothing to show that he protested in any way or failed to consent to its filing, but on the contrary the record indicated that he concurred in the advice of counsel as to the plea and felt it proper.  Nor was there anything in the record to indicate that the defendant was not fully informed by his trial counsel of his right not to testify in his own behalf.  The failure of [***3]  counsel to move for a judgment of acquittal could not serve as the basis for a charge of incompetence, since there was legally sufficient evidence to support the verdict of guilty and the trial court could not properly have granted such a motion.  There was no incompetence of counsel in his failure to request instructions to the jury or to take exceptions to those given, since the instruction as to insanity was not prejudicial error and the defendant did not complain of any other error in the charge, nor that it was in any way deficient.  Nor were these points, taken collectively, sufficient to make a farce of the trial and to deny due process of law.  

SYLLABUS:

Leonard A. Fowler was convicted of murder in the first degree without capital punishment by a jury, and from the judgment entered thereon, he appeals.  

COUNSEL:
Joseph R. Hardiman for the appellant.
Loring E. Hawes, 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 Hammond, Horney and Sybert, JJ., and Robert E. Clapp,  [***4]  Jr., J., Associate Judge of the Sixth Judicial Circuit, specially assigned.  Clapp, Jr., J., by special assignment, delivered the opinion of the Court.  

OPINIONBY:
CLAPP, JR.  

OPINION:

 [*510]   [**803]  This is an appeal from a sentence of life imprisonment imposed after a jury verdict of guilty of murder in the first degree without capital punishment.
The appellant, Leonard Augusta Fowler, was indicted on December 6, 1963, for the murder of his brother, Franklin Richard Fowler, on October 18, 1963.  He was arraigned on December 9, 1963, at which time he was represented by counsel of his own choice, this attorney having been recommended to him by friends.  At that time pleas of not guilty and not guilty by reason of insanity at the time of the commission of the alleged crime were entered and the court directed that he be transferred from the Baltimore City Jail to Clifton T. Perkins State Hospital for examination.
On April 28, 1964, trial was had before a jury with counsel of his own selection representing him and this jury found the appellant to be sane at the time of the commission of the crime and guilty of murder in the first degree without capital punishment. After imposition of [***5]  sentence, the appellant appealed to this Court in proper person as an indigent and present counsel was appointed to represent him.
Two questions for decision were presented by the appellant both in his brief and in oral argument as follows:
1. Was the trial court's instruction that the burden is upon the defendant to prove insanity by a preponderance of the evidence prejudicial error?
2. Was appellant's trial counsel incompetent? (The brief and oral argument  [**804]  inform us that this issue is here raised for the first time at the specific direction of the appellant).
At the outset, it should be noted that no objection was made at the trial to any portion of the trial court's instruction and Rule 756 g would ordinarily preclude the appellant from raising any objection to the charge on appeal.  However, as the charge 

 [*511]  dealt with the burden of proof in cases where a sanity plea is filed and as this charge was given six days before the decision of this Court in Bradford v. State, 234 Md. 505, we have decided to take cognizance of the issue raised by the appellant as permitted by Rule 756 g.
Before the decision in Bradford, it had been the practice in [***6]  some of the trial courts to instruct on the basis of the preponderance of evidence and the burden on the defense in connection with insanity pleas as was here done.  See for example, the charge of Chief Judge Niles in Thomas v. State, 206 Md. 575, 586-587, Judge Macgill in Bell v. State, 234 Md. 254, and Judge Grady in O'Connor v. State, 234 Md. 459. Until Bradford, the question of the propriety of this instruction had not been decided by this Court, because there was in those cases insufficient evidence to rebut the initial presumption of sanity present in every criminal case. Bradford, however, decided that once evidence of insanity has been introduced which, if believed, would be sufficient to overcome the presumption of sanity, the State has then the burden of proving beyond a reasonable doubt that the defendant was sane at the time of the alleged commission of the offense.
The holding in Bradford, accordingly, means that the charge to the jury that "the burden is on the defense to prove insanity by a preponderance of the evidence, not beyond a reasonable doubt," should not be given.  The trial court should decide, as a preliminary matter of law, whether [***7]  there has been sufficient proof of insanity introduced which, if believed, would raise a question in the minds of reasonable men whether the defendant was or was not sane under the M'Naghten-Spencer test.  If the trial court decides this preliminary question of law in the affirmative, then the jury should be instructed that the burden is upon the State to prove the defendant sane beyond a reasonable doubt. If the trial judge decides this preliminary question in the negative, the issue of insanity should be withdrawn from consideration by the jury, still, of course, leaving to the jury the question whether the State has proved the commission of the alleged crime beyond a reasonable doubt. O'Connor v. State, supra, and cases therein cited.  See also 15 Md. L. Rev. 157, 162.

 [*512]  The State maintains, however, that even though the instruction of the trial court, in the light of Bradford, should not have been given, there was no reversible error because there was no sufficient evidence of insanity adduced at the trial to require the submission of the issue of insanity to the jury and, therefore, the submission of that issue to the jury (which found him sane) was more [***8]  than the appellant was entitled to.  With this contention we agree.
The record discloses that the appellant at the time of the alleged crime was a 19 year old youth with a ninth grade education who throughout his life had suffered from an "emotional deprivation" which resulted from an "unstable childhood" spent in various children's homes and a foster home, in addition to living with his mother after the death of his father.  Some five months before the alleged crime he had met and begun living with a girl in a husband-wife relationship (without the sanction of clergy), she being the first person who, according to him, had ever shown him real affection.  On her 18th birthday, four days before the alleged crime, they had applied for a marriage license but on the day following he returned to the apartment where they had been living and found that she had left.  He searched for her, and, finally,  [**805]  his sister told him that the girl was now living with his brother in another part of Baltimore.  The appellant went to the place where they were living the day before the shooting to ask the girl to return to him but she refused.
On the day of the shooting, the appellant went to [***9]  this place with a pistol that he had bought from a taxi driver a considerable time before.  He found the girl and his brother in bed together and waited until they arose, at which time she cooked breakfast for them and they played some records.  Some three to four hours later and after the arrival of his sister, the appellant wrote a letter to his mother stating that he was going to shoot his brother and, about ten minutes thereafter, during a discussion with his brother about whether a door to the apartment should be opened or closed, he shot his brother, by his own admission at the trial, at least once.  The deceased was shot three times, once in the right shoulder, once in the wrist and 

 [*513]  once in the chest; the last shot lacerated the lung, causing massive hemorrhage and bringing on death.  The appellant testified that he remembered firing only the one shot that struck the shoulder and claimed that his sister fired one shot. He did not remember a third shot. Neither the girl with whom he had been living nor his sister confirmed the fact that his sister had fired the pistol.
The only expert psychiatric testimony produced at the trial bearing on the mental condition of [***10]  the appellant was that of Dr. William Cushard, Superintendent of Clifton T. Perkins State Hospital, a witness produced on behalf of the appellant.  He testified in chief as to the details of the pre-trial evaluation of the appellant and said that his early life and environment would not have been productive of a well-balanced individual, that the girl was of extreme importance to him and that her loss certainly placed him under a terrific emotional strain.
On cross-examination in answer to the question whether at the time of the shooting, the appellant knew the difference between right and wrong and the nature and consequences of his act, Dr. Cushard replied, "Yes, sir.  It is my opinion, and I might say there was no difference of opinion among us, our staff or Dr. Prado, that Mr. Fowler at the time of the alleged crime was not mentally ill and in the absence of mental illness I would certainly say that he was, had the capacity to be aware of the nature and consequence of his acts as applied to himself and knew the difference between right and wrong at that time."
Upon this state of the evidence, it is apparent that there was no sufficient evidence of appellant's being insane to [***11]  require the submission of the issue of insanity to the jury; therefore, the giving of the instruction by the trial court to the jury even if wrong under Bradford, was not reversible error. O'Connor v. State, supra; Lipscomb v. State, 223 Md. 599, Thomas v. State, 206 Md. 575. Cf. Bell v. State, supra.
The language of Judge Henderson in O'Connor v. State, supra, at page 461 is particularly appropriate here:
"1. The State contends that the instruction was correct, but argues that even if it was not there was no reversible error because the defense produced no 

 [*514]  evidence of insanity sufficient to overcome the presumption of sanity. Thomas v. State, 206 Md. 575, Lipscomb v. State, 223 Md. 599. See also Saldiveri v. State, 217 Md. 412, Dunn v. State, 226 Md. 463 and Hyde v. State, 228 Md. 209. Hence the State contends there was legally insufficient evidence to warrant the submission of this issue to the jury.  Upon a careful review of the evidence, we agree.  Dr. Prado, the psychiatrist called by the State, testified that while the appellant had a personality disorder he had the capacity, both at the  [**806]  time of the offense [***12]  and at the time of the trial, to distinguish right from wrong and to understand the nature and consequences of his acts as applied to himself.  While he felt that the accused was a defective delinquent, this was because of his personality and not by reason of any mental illness.  Dr. Boslow, the psychiatrist called by the appellant, testified that the appellant knew the difference between right and wrong and had the capacity to understand the nature and consequences of his acts.  He testified that the appellant was, and always had been a responsible agent and had never been insane, not even under the Durham test [Durham v. United States, 214 F. 2d 862, (C.A. D.C.)] for criminal responsibility.  He further testified that the accused was emotionally unstable but not psychotic.  Thus the experts were in complete agreement, and there was no other evidence on the point."
In view of our opinion on this point, we do not reach the contention of the appellant as to the quantum of proof necessary to overcome the presumption of sanity. The factual situation here presented is insufficient to cause us to review the holding of Bradford even if we were inclined so to do.
With [***13]  respect to the contention here raised that trial counsel was incompetent, the appellant first maintains that the plea of not guilty by reason of insanity was filed by trial counsel against the wishes of the appellant.  The record is devoid of any evidence to sustain this point and, in fact, on cross-examination, 

 [*515]  the testimony of the appellant shows that he knew of this plea at the time of his evaluation at Clifton T. Perkins State Hospital.  There is nothing to show that he protested in any way or failed to consent to its filing.  On the contrary, the record indicates that he concurred in the advice of his counsel as to the plea and felt it proper.
As a second point in this connection the appellant maintains that he was not advised by trial counsel of his right to refuse to testify in his own behalf.  In Stevens v. State, 232 Md. 33, Judge Sybert said, for this Court, at page 39, "Where the accused has counsel, it is to be presumed that the accused has been informed of his rights and that when he voluntarily takes the stand he waives the protection of the constitutional and statutory provisions." There is nothing in this record to indicate that the accused was not [***14]  fully informed of his rights by counsel.  Moreover, where an accused is represented by counsel, ordinarily there is no requirement that the court should undertake to inform him of his rights.  Stevens v. State, supra, cert. den. 375 U.S. 886.
It is further contended that the failure of trial counsel to move for judgment of acquittal precludes appellate review of the sufficiency of the evidence to convict appellant of murder in the first degree.  We have reviewed the evidence in its entirety, although not required to do so under Rule 755 and it seems too clear for argument that there was legally sufficient evidence to support the verdict and that the State clearly met the burden of showing that the killing was willful, deliberate and premeditated.  Cf. Tull v. State, 230 Md. 152. No charge of incompetence of counsel can be based upon failure to make a motion that the trial court could not properly have granted.
Lastly, the appellant bases his charge of incompetency in general terms upon the fact that trial counsel failed to request instructions or to take exceptions to the instructions given.  As previously discussed in this opinion, the instruction of the trial court as to [***15]  insanity was not prejudicial error. The appellant does not here contend that there was any other error in the charge of the trial court nor that such charge was in any way deficient.  We fail  [**807]  to see any incompetency of counsel in this connection.

 [*516]  Presently appointed counsel for the appellant, recognizing the difficulty of the appellant's contentions with respect to the specific deficiencies above mentioned, maintains that these points taken collectively, are sufficient to make a farce of the trial and to deny due process of law.  As previously stated, we have reviewed the entire record and we find that trial counsel did all that could reasonably be expected with a case where the evidence of the State was so overwhelming.
Judgment affirmed.  

114 of 138 DOCUMENTS 

WALKER v. STATE 

No. 175, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 516; 206 A.2d 795; 1965 Md. LEXIS 752 

February 11, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Montgomery County; Shure, J.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Tangible Evidence Resulting From Illegal Search Proscribed But Testimony Of Victims And Other Lawful Evidence Admissible On Retrial.  The appellant in the instant case was tried and convicted of robbery with a deadly weapon and sentenced to twenty years.  His case was subsequently remanded by the Federal Court and on retrial, he was again convicted and sentenced to twenty years.  The Court stated that at the second trial, none of the tangible evidence found by the Federal Court to have been illegally obtained, was introduced against appellant.  The conviction was based upon evidence including eyewitness' testimony which the appellant claimed was "intangible evidence" traceable to the illegal search proscribed by the Federal Court.  However, the Court held that although the Federal Court had condemned tangible evidence which was the fruit of the illegal search, this by no means meant that he could not be retried, using testimony of the victims and other lawful evidence.
Arrest -- Was Legal Here -- Information Coming From A Responsible Official Source Connecting  [***2]   Appellant With The Robbery Constituted Probable Cause And Reasonable Grounds For Arrest -- An Illegal Arrest Would Not Of Itself Preclude Trial For And Conviction Of The Offense.  

SYLLABUS:

Cornelius Walker, Jr., was convicted on retrial of robbery with a deadly weapon and from the judgment entered thereon, he appeals.  

COUNSEL:
George L. Russell, Jr., with whom was Richard K. Jacobsen on the brief, for appellant.
Robert F. Sweeney, 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, Horney, Marbury and Barnes, JJ.  Marbury, J., delivered the opinion of the Court.  

OPINIONBY:
MARBURY 

OPINION:

 [*517]   [**796]  On November 11, 1959, Marshall's Cut Rate Liquor Store in Baltimore City was robbed at gunpoint at approximately eight o'clock p.m. Robert Heyman, the manager, and a clerk, James Watson, were in the store at the time.  A total of $ 30.00 was taken from these men and a little over $ 2400 was taken from the store's cash register.  Watches valued in the aggregate of $ 75 were missing from a display case in the store [***3]  following the robbery. As the result of this robbery, the appellant, Cornelius Walker, was arrested, tried and convicted on December 23, 1959, of robbery with a dangerous and deadly weapon charged in the first count of the indictment, and sentenced to twenty years in the Maryland Penitentiary.
Walker appealed to this court, which affirmed the judgment of the lower court.  Walker v. State, 223 Md. 243, 164 A. 2d 287. He next filed a petition for Post Conviction relief in the Criminal Court of Baltimore, alleging that evidence illegally obtained had been used to secure his conviction.  This petition was denied, and we also denied his application for leave to appeal.  

 [*518]  Walker v. Warden, 226 Md. 653, 172 A. 2d 407. The Supreme Court of the United States denied certiorari.  Walker v. Warden, 368 U.S. 960, 7 L. Ed. 2d 391.
He next filed a petition for a writ of habeas corpus in the United States District Court for the District of Maryland, alleging that he was being unlawfully detained as a result of conviction and sentence obtained through the use of unlawfully seized goods.  The District Court found that the appellant had waived a right to raise this question [***4]  since he failed to raise it on direct appeal in this Court, and also found that there was no basis for holding that the search was illegal.  That decision was subsequently reversed by the United States Court of Appeals for the Fourth Circuit in Walker v. Pepersack, 316 F. 2d 119, in which that court relied on its views in Hall v. Warden, 313 F. 2d 483, which held to be retroactive the decision of Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081. The Fourth Circuit remanded  [**797]  the petition to the District Court.  That court subsequently ordered that Walker either be released or retried. The State elected to and did retry Walker on September 13, 1963.  He was again found guilty of robbery with a deadly weapon and sentenced to twenty years in the Maryland Penitentiary from November 11, 1959.  From that judgment and sentence this appeal is taken.
At the trial of September 13, 1963, none of the tangible evidence, found by the United States Court of Appeals to have been illegally obtained, was introduced against Walker.  The conviction was based upon evidence including the testimony of the victims of the robbery, and of Estelle Jackson who testified that Walker, on the [***5]  evening of the robbery and subsequent to it, had brought to her home certain watches and money similar in nature to those taken from the robbed premises.
Appellant contends that the State was not justified in relying on the eyewitness' testimony to prove its case at the second trial.  He claims that this testimony, which he characterizes as "intangible evidence" was traceable to the illegal search proscribed by the Fourth Circuit.  We do not agree.  The evidence condemned by the federal court consisted of tangible evidence which was the fruit of the illegal search, causing the court to remand the case to the District Court to afford the 

 [*519]  State a reasonable opportunity to retry the appellant.  This by no means meant that he could not be retried, using testimony of the victims and other lawful evidence.
Appellant argued that he was the victim of an illegal arrest. We find no merit in this contention.  The record discloses that a telephone call, followed by a letter, was received by the Police Department of Baltimore City from the Federal Bureau of Investigation containing information connecting the appellant with the robbery. This information, coming from a responsible [***6]  official source, constituted in itself probable cause and reasonable grounds to arrest the appellant.  Farrow v. State, 233 Md. 526, 197 A. 2d 434.
Moreover we have repeatedly held the fact that the arrest, even if illegal, would not of itself preclude a trial for and conviction of the offense charged.  Matthews v. State, 237 Md. 384.
Judgment affirmed.  

115 of 138 DOCUMENTS 

CORBIN v. STATE 

No. 155, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 486; 206 A.2d 809; 1965 Md. LEXIS 749 

February 10, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments in Nos. 3114 and 4894 affirmed.  Judgment in No. 3116 reversed.  

HEADNOTES:

Criminal Law -- Indictments -- Amendment Of -- Rule 714 -- May Be Permitted Before Verdict As To Matter Of Form A But Not As To Matter Of Substance -- Changing Name Of Owner Of Property Constituting Subject Matter Of Crime Charged Was Change In Form And Not Substance -- None Of The Essential Elements Of The Offense Were Changed.
Evidence -- Identification -- Fact That Witness Did Not Identify Defendant In Lineup Would Not Require Trial Court To Disregard Identification At The Trial -- Witness Testified That After Previously Identifying Defendant's Companion In Lineup People Came To Her House Causing Trouble.
Criminal Law -- Carrying A Dangerous And Deadly Weapon -- Insufficient Evidence For Conviction Of.  To support appellant's conviction of carrying or wearing a dangerous or deadly weapon, it was necessary that the State establish that the accused was carrying the weapon or that it was in such proximity to him as would make it available for his immediate use.  In the instant case, evidence established that two pistols were [***2]  found in appellant's car; one was owned by a third person but ownership of the second pistol was never shown.  The evidence did not disclose in what portion of the car either pistol was found.  Such evidence was insufficient to convict appellant of the crime charged.
Criminal Law -- Grand Larceny -- Facts Stipulated By State And Inferences Deducible Therefrom Were Sufficient To Justify Finding That Appellant Wrongfully Took Property Without Owner's Consent -- Property Owner Had Complained Of Being Followed, A Police Officer Was "Staked Out" And Apprehended Appellant As Soon As Property Was Taken From Owner's Car.  

SYLLABUS:

Harry N. Corbin, Jr., was convicted by the trial court, sitting without a jury, of grand larceny of an automobile, two suitcases and money (Indictment No. 3114), of carrying a dangerous and deadly weapon (Indictment No. 3116), and of grand larceny of five checks (Indictment No. 4894) and from the judgments entered thereon, he appeals.  

COUNSEL:
Thomas N. Evans, Jr., for appellant.
David T. Mason, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Andrew J. Graham, State's Attorney and Assistant  [***3]   State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
MARBURY 

OPINION:

 [*487]   [**810]  On July 29, 1963, indictment No. 3114 charging in the first count grand larceny of an automobile, two suitcases and money was filed against Harry N. Corbin, Jr., appellant.  On the same 

 [*488]  day there was also filed against him indictment No. 3116 charging him with carrying a dangerous and deadly weapon. On November 6, 1963, indictment No. 4894 was filed against him charging in the first count grand larceny of five checks.  All three indictments were tried together in the Criminal Court of Baltimore, Judge Harlan presiding without a jury.  He found appellant guilty under the first count of indictment 3114 and also under indictment 3116, for which appellant was sentenced to the Maryland House of Correction for three years, and one year, respectively, to run concurrently; and guilty under the first count of indictment 4894, for which he was sentenced to the House of Correction for two years, to run consecutively with the sentence [***4]  imposed under indictment 3114.  He appealed to this Court from the judgments and sentences imposed in all three cases.
At about 6:30 P. M. on May 31, 1963, Morris Silverberg parked a 1962 black Mercury Comet sedan at the corner of Gilmor and Frederick Avenues in Baltimore.  In the trunk compartment was a suitcase containing rolls of coins and an envelope in which there was currency.  He returned a short time later and found the automobile missing.  Velsa Gabler testified that on the same day while looking out the window of her apartment, she saw Mr. Silverberg park and leave his car, and that shortly thereafter she observed three men pushing a black Mercury.  She identified the appellant as one of the three men.  Further, her husband testified that, when called to the window by his wife, he saw a Mercury Comet being pushed by a red and white Ford and Corbin was also pushing the car from the curb.
On June 1, 1963, Sergeant McGovern took Mrs. Gabler to the 900 block of Baltimore Street where she pointed out a red and white Ford automobile which was then impounded by the police.  After impoundment, it was searched and two pistols were found.  One, a .38 caliber was owned by Joseph Galiano.  [***5]  A .22 caliber pistol was found in the car a day later.  However, Sergeant McGovern testified its ownership was never ascertained. The appellant testified that he was the owner of a 1956 red and white Ford which he had loaned to Galiano, but that he was not in town on May 31.
As to indictment 4894, David Diamond parked an Oldsmobile 

 [*489]  sedan in front of a filling station on October 11, 1963.  There  [**811]  were five checks of a face value of $ 200.52 in the trunk of the car.  A police officer "staked out" at the filling station saw appellant go to the rear of the vehicle, open the trunk with a key and remove a package containing the checks, and other articles.
The appellant first contends that the lower court erred in permitting an amendment to indictment 3114.  The pertinent parts of the indictment as returned by the grand jury read:
"The Jurors *** do on their oath present that Harry N. Corbin *** on the thirty-first day of May, *** against the will and consent of Morris M. Silverberg and his agents, unlawfully did take and carry away, out of the custody and use of the said Morris M. Silverberg and his agents, One Mercury comet automobile, *** of the goods,  [***6]  chattels, moneys and properties of Morris M. Silverberg."
The record discloses that at the outset of the trial, the State moved to amend this indictment changing the ownership from Morris M. Silverberg to Merit Music Service, Inc., a corporation (of which he was president).  The amendment was permitted over the objection of the defense counsel.  The State, claiming that the amendment was a matter of form, contends that the granting thereof was proper.  However, appellant claims that the amendment concerned a matter of substance, and should not have been allowed under Maryland Rule 714.  This Rule states:
"The court may permit an indictment or information to be amended at any time before verdict as to matter of form, but not as to matter of substance."
It is the appellant's contention that an allegation of ownership is a matter of substance and that the amendment of the indictment by the State constituted a change of the person and not merely a correction of the name of the person.
As to what constitutes substance and what is merely formal in an indictment, it may be said that all facts which must be proved to make the act complained of a crime are matters of 

 [*490]   [***7]  substance, and that all else -- including the order of arrangement and precise words, unless they alone will convey the proper meaning -- is formal.  27 Am. Jur., Indictments and Informations, §  117, Lank v. State, 219 Md. 433, 149 A. 2d 367. We have held in the past that a criminal charge must so characterize the crime and describe the particular offense so as to give the accused notice of what he is called upon to defend and to prevent a future prosecution for the same offense.  Dotson v. State, 234 Md. 333, 199 A. 2d 235; Cropper v. State, 233 Md. 384, 197 A. 2d 112; Lank v. State, supra; Gray v. State, 216 Md. 410, 140 A. 2d 643; Hutson v. State, 202 Md. 333, 96 A. 2d 593. Under the circumstances as presented here, changing the name of the owner of the property constituting the subject matter of the crime charged was a change in form and not substance, since none of the essential elements of the offense was changed, and therefore the amendment was properly allowed and resulted in no prejudice to the rights of the accused.  Annotation, 68 A.L.R. Power of court to amend indictment, p. 928.
The appellant further contends the trial court should have disregarded [***8]  his identification at the trial by a witness who did not identify him to the police in a lineup. Velsa Gabler and her husband both identified the appellant at the trial as one of the persons seen by them stealing the car on May 31.  The fact that Mrs. Gabler did not identify Corbin in a lineup would not require the lower court to disregard or exclude her testimony.  This is especially true here in light of the witness's testimony that she knew the appellant was one of the persons involved in the larceny of the automobile but she wouldn't identify him in the police lineup because people were coming to her house causing trouble after she had previously identified a companion of the appellant in a lineup. In such case, we  [**812]  think the credibility of the witness's testimony was primarily for the trier of facts.  Rule 886 a; Hamm v. State, 233 Md. 248, 196 A. 2d 464; Weaver v. State, 226 Md. 431, 174 A. 2d 76.
The appellant argues that the circumstantial evidence was not sufficient to convict him under either count of indictment 3116, charging violations of Code (1964 Cum. Supp.), Article 

 [*491]  27, Section 36.  We agree.  The pertinent part of this section of the [***9]  Code provides:
"Every person who shall wear or carry any pistol, *** or any other dangerous or deadly weapon of any kind, whatsoever *** concealed upon or about his person, and every person who shall wear or carry any such weapon openly with the intent or purpose of injuring any person in any unlawful manner, shall be guilty of a misdemeanor, * * *."

The State's evidence established that two pistols were found in appellant's car.  One pistol was shown to be owned by Joseph Galiano, but the owner of the .22 caliber pistol was never ascertained. In order to support the conviction of the carrying or wearing a dangerous or deadly weapon, it was necessary that the State establish the fact that the accused was carrying the weapon or that it was in such proximity to him as would make it available for his immediate use.  Veney v. State, 227 Md. 608, 177 A. 2d 883. The evidence did not disclose in what portion of Corbin's car either of the pistols were found.  Hence the judgment on this indictment must be reversed, a slight moral victory for the appellant affording him no practical benefit.  We see no reason to remand for a new trial on this indictment since the lower court [***10]  sentenced the appellant to one year to run concurrently with the three year sentence in No. 3114.
As to indictment 4894, the appellant contends that the evidence was insufficient because the stipulation of facts upon which that case was tried did not state all the essential ingredients of the crime charged, in that it did not specifically negate the property owner's consent to the taking.  A review of the facts stipulated shows that David Diamond had complained to the police on numerous occasions that he and his employees were being followed.  On October 11, 1963, he placed in the trunk of his car checks and other articles valued in excess of $ 100 and parked the car in front of a service station where a police officer was "staked out." This officer observed the appellant open the trunk of the car with a key and remove the property placed therein, and the appellant was immediately apprehended with this property in his possession.  It is clear that the evidence as 

 [*492]  stipulated on behalf of the State and the inferences deducible therefrom were sufficient to justify a finding by the lower court that the appellant wrongfully took the property in question without the owner's [***11]  consent.  Murray v. State, 214 Md. 383, 135 A. 2d 314.
Judgments in Nos. 3114 and 4894 affirmed.  Judgment in No. 3116 reversed.  

116 of 138 DOCUMENTS 

BROWN v. STATE 

No. 156, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 492; 207 A.2d 103; 1965 Md. LEXIS 750 

February 10, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment of conviction affirmed; sentence of death stricken, and sentence of imprisonment for life reinstated.  

HEADNOTES:

Criminal Law -- Murder In First Degree -- Sufficiency Of Evidence -- Appellate Review Of -- Evidence Held Ample To Sustain Conviction In This Non-Jury Case.  The scope of appellate review as to the sufficiency of the evidence to sustain a conviction of murder in the first degree is not to determine whether the State has proved its case beyond a reasonable doubt, but whether there was sufficient relevant evidence properly before the trier of the facts to sustain the conviction.  In the instant non-jury case, where the defendant was convicted of murder in the first degree, the Court held the evidence to be ample to sustain the finding below.
Criminal Law -- Failure To Complain Of Representation At Trial In Court Below Or Thereafter Before Appeal -- Point Cannot First Be Raised On Appeal.
Criminal Law -- Inadequate Trial Counsel -- Complaint Of, Not Supported By Transcript Of Record Of Trial.  The transcript of the record of the trial was held not to support the complaint of inadequate [***2]  trial counsel in the present criminal case. While some testimony was admitted without objection when objection might have been made, the adequacy of counsel is not to be measured by the number of his objections.  An attorney may deem it expedient and in his client's interest not to risk emphasizing adverse testimony.  Even though, on hindsight, a decision may seem unwise, mere error in trial tactics does not amount, per se, to inadequate representation.  While the trial counsel in this case produced no defense witnesses, the Court noted that there may have been none, that his cross-examination was vigorous and that the defendant elected not to take the stand.  Often, where the State's case is strong, experienced trial counsel direct their principal efforts to the mitigation of sentence, and in this case the sentence originally imposed was less than the maximum permitted by law.
Criminal Law -- New Trial -- Right To File Motion For, After Conviction, Is Not Guaranteed Under Due Process Clause, In Absence Of State Constitutional Or Statutory Requirements.
Double Jeopardy -- Increase Of Sentence Constitutes, After Defendant Has Begun Serving Sentence In Penal Institution [***3]  .  Where a defendant has begun serving his sentence in a penal institution and is no longer in the custody of an officer of the court, as he is while awaiting sentence, the sentence cannot thereafter be increased.  Such an increase is double jeopardy, whether under the Fifth Amendment to the Federal Constitution, or as in Maryland, under the common law.
Criminal Law -- Filing Of Motion For New Trial With Supreme Bench Of Baltimore City Under Its Rule 747 Suspends Execution Of Sentence Which Already Has Been Imposed, And Sentence Cannot Thereafter Be Increased -- Interpretation Of Rule.  The defendant in the present case, after being convicted of murder in the first degree, was first sentenced to life imprisonment.  This sentence was "stricken" or "suspended" in order to enable him to file a motion for a new trial. After the motion was filed and later withdrawn, the defendant was sentenced to death.  Whether the death sentence could be validly imposed depended upon whether the first life sentence was vacated or merely suspended. The Court held that under Rule 747 of the Rules of the Supreme Bench of Baltimore City the execution of the first sentence had been suspended, not [***4]  vacated, and that under Maryland Rule 764 b the sentence could not thereafter be increased.  The Court observed that this ruling left the defendant free to exercise his right, unhampered by any fear of increased sentence, but that if the Rule were construed otherwise, a defendant's life, as here, might depend upon whether he filed the motion for a new trial upon the first or the third permitted day.  The Supreme Bench, in the Court's judgment, did not intend to subject a defendant to such fears or vagaries of chance in the exercise of his right.  Nor was there any conflict between the time fixed for filing the appeal and the hearing upon the motion for a new trial, since there was no final judgment from which an appeal would lie where the execution of the sentence is stayed under Rule 747.  The failure of the clerk properly to interpret what had transpired in court could not alter the fact that a life sentence had been imposed, the Rule invoked, and under it only the execution of the sentence stayed.  Nor did the trial court's statement in an informal colloquy necessarily indicate the intention of the judge to vacate the sentence rather than to suspend it under the Rule.  In view of [***5]  all the circumstances the fair intendment of what took place was that the defendant's attorney in effect asked for the invocation of the Rule, and that the judge, desiring to preserve the defendant's rights, in effect acceded to the request.  

SYLLABUS:

David Columbus Brown was convicted of murder in the first degree, by the trial court, sitting without a jury.  He was sentenced to life imprisonment, but this sentence was "stricken" or "suspended" in order to enable him to file a motion for a new trial, which was filed but later withdrawn.  He was then sentenced to death.  From the judgment entered thereon, he appeals.  

COUNSEL:
Charles P. Howard, Jr. (on both arguments) for the appellant.
Stuart H. Rome, Assistant Attorney General (on both arguments), with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Frank Cannizzaro, Jr., Assistant State's Attorney, on the brief, for the appellee.  

JUDGES:
Hammond, Horney, Marbury, Sybert and Oppenheimer, JJ., and reargued before Prescott, C. J., and Hammond, Horney, Marbury, Sybert and Oppenheimer, JJ., and Clapp, J., Associate Judge of the Sixth Judicial Circuit, specially assigned.  [***6]  Oppenheimer, J., delivered the opinion of the Court.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*495]   [**105]  The appellant, Brown, was convicted of first degree murder in the Criminal Court of Baltimore by Judge Harris, sitting without a jury.  First sentenced to life imprisonment, the sentence was "stricken" or "suspended" in order to enable him to file a motion for a new trial. Brown's motion for a new trial was filed but later withdrawn.  [**106]  He was then sentenced to death.  In this appeal from that judgment, the appellant contends first, that the trial court erred in failing to grant a motion for a directed verdict of acquittal of murder in the first degree; second, that the appellant's representation by his trial counsel was so inadequate as to amount to a denial of due process of law; and, third, that the death sentence was illegally imposed.  We shall consider these contentions in the order named.
I
The evidence is uncontradicted that Brown and the deceased, Geraldine Vandervall, had been living together for several years.  She left him and with her three children, one of whom was Brown's, moved to her mother's home, in Baltimore City.  Patricia Bell, a cousin of the deceased,  [***7]  testified that, about a month before the tragedy, she had heard Brown threaten to kill Geraldine if she left him.  On the night of September 11, 1963, Brown came to the home of Patricia Bell, on North Avenue, west of Longwood Street, where Geraldine had been spending much of her time.  Patricia Bell and her sister, Dorothea Bradley, 

 [*496]  testified that Brown angrily demanded to see Geraldine; both girls told him Geraldine was not there and that they did not know where she could be found.  Brown left and continued his search for Geraldine, visiting the nearby homes of several of her neighbors.  In the meantime, Geraldine had arrived at her cousin's North Avenue house.  Patricia Bell saw Brown return to his car, which he had parked on North Avenue, and Patricia told Geraldine of Brown's return.  Geraldine, according to Patricia, said she did not want to talk with Brown but thought she should "get it over with now." Patricia said Geraldine stepped outside and called Brown's name.  Brown said he wanted to talk with her and drove around the corner to Longwood Street with Geraldine following on foot.  The two then engaged in conversation; Patricia could only see the rear of Brown's [***8]  car.  Patricia, concerned about her cousin, walked around the corner several times, but, on each occasion, the couple stopped speaking as Patricia came into sight.  Patricia observed Brown seated in the car with the door open and his feet on the curb; Geraldine was standing before him on the sidewalk.  After her second expedition, Patricia returned to her house and sat on the front steps.  Shortly thereafter, she heard a man at the corner say, "Miss, is you all right?" Patricia ran to the corner and found Geraldine in the gutter, her eye gouged and her body bloodied.  Brown's car was still there, with the door open, but Brown had fled.  The police were called and took Geraldine to a hospital.  She was dead on arrival.  She was a slight woman, five feet one inch in height and only eighty-nine pounds in weight.  The autopsy report shows she died of multiple stab wounds of the face, head, neck, back, upper body and abdomen.  Brown voluntarily surrendered to the police later the same night.
Brown chose not to take the stand in his own defense.  The only evidence as to what took place between Brown and Geraldine immediately before her death is contained in Brown's unsigned confession.  [***9]  No contention was made at the trial, or is made on this appeal, that the confession was involuntary.  Brown's trial counsel (who is not counsel in this appeal) stated Brown said he gave the statement voluntarily, and, at the trial, on a question from the court, Brown said this was correct.  Sergeant Albert Thomas, to whom Brown gave his statement, testified Brown said, in part:

 [*497]  "[A]s he saw Geraldine come out of Patsy's house he pulled around the corner and stopped and Geraldine came down and she got in the car and we were talking.  He said first she was standing on the sidewalk and I was talking to her with the right door open. Then he got out, stood on the sidewalk and she got in the car.  When I asked if she was going home with me, and she said, no, so I told her to get  [**107]  out of the car so I could go and she said she wasn't finished talking and I told her; he said he told her he didn't have any more to say.  She didn't get out of the car so he reached in, grabbed her, tried to pull her out and she pulled the door shut.  She tried to get the window up and he got inside the window and he said she found a screwdriver on the seat of the car.  He said [***10]  he took the screwdriver away from her and he hit her with it.  He said he hit her with the screwdriver. *** 'She told me I hurt her', and he said he hit her again.  He said, 'I will kill you,' and he said he kept on hitting her and she was trying to get out of the other side of the car and she was hollering, and 'The last time I hit her I saw blood on my hand.' Then he dropped the screwdriver and ran down to his brother's house at 1719 Moreland Avenue."
The scope of our review as to the sufficiency of the evidence to sustain the conviction of murder in the first degree is not to determine whether the State has proved its case beyond a reasonable doubt, but whether there was sufficient relevant evidence properly before the trier of the facts to sustain the conviction.  Sample v. State, 235 Md. 554, 201 A. 2d 797 (1964); Tull v. State, 230 Md. 596, 604, 188 A. 2d 150 (1963); Lee v. State, 224 Md. 260, 167 A. 2d 595 (1961) and cases therein cited.  In this case, there was testimony as to Brown's threat to kill his paramour, uttered several weeks before the slaying.  He admitted using the screwdriver to inflict repeated blows upon his victim; he confessed that he hit [***11]  her again when she said he had hurt her and told her "I will kill you." The fact that the screwdriver was not found and apparently had not 

 [*498]  been on Brown's person before the crime and Brown's statements that the slightly built woman he killed had tried to keep him out of the car and that it was she who had picked up the screwdriver, were for the trial judge's consideration in arriving at his verdict.  It was for the judge to determine whether the State had proved first degree murder beyond a reasonable doubt. There was ample evidence to sustain the court's finding.
II
The record does not show Brown ever complained of his representation at his trial in the court below or thereafter, before this appeal.  The point can not be raised for the first time here.  Maryland Rule 885, Stevens v. State, 230 Md. 47, 185 A. 2d 194 (1962).
In any event, however, the complaint of inadequate counsel is not supported in the transcript of the record of the trial.  Some testimony was admitted without objection when objections might have been made, but the adequacy of counsel is not to be measured by the number of his objections.  An attorney may deem it expedient, in his client's interests,  [***12]  not to risk emphasizing adverse testimony.  Even though, on hindsight, a decision may seem unwise, mere error in trial tactics does not amount, per se, to inadequate representation.  Greene v. State, 233 Md. 274, 196 A. 2d 454 (1964); Stevens v. State, supra.
Browns' trial counsel was vigorous in cross-examination.  The fact that he produced no defense witnesses does not prove inadequacy; there may have been none.  Brown elected not to take the stand.  Often, where the State's case is strong, experienced trial counsel direct their principal efforts to the mitigation of sentence. In this case, the sentence originally imposed was less than the maximum permitted by law.
III
Determination of the question of whether, on the facts, the increase of the life sentence originally imposed to capital  [**108]  punishment was illegal, requires an examination of the place of motions for new trials in criminal cases in Baltimore City and the procedure in respect thereto.
Absent State constitutional or statutory requirements, the 

 [*499]  right to file a motion for a new trial after conviction for a criminal offense is not guaranteed under the due process clause.  There is no [***13]  right, under that clause, even to an appeal.  Griffin v. Illinois, 351 U.S. 12, 18 (1956); Winkler v. State, 194 Md. 1, 16-17, 69 A. 2d 674 (1949) and cases therein cited.  In Maryland, before the adoption of the amendment to Section 5 of Article XV of our Constitution, this Court did not have the power to review the legal sufficiency of the evidence to sustain a conviction.  Giles v. State, 229 Md. 370, 384, 183 A. 2d 359 (1962); Slansky v. State, 192 Md. 94, 63 A. 2d 599 (1949).
However, Section 33 of Article IV of the Maryland Constitution provides that the Supreme Bench of Baltimore City shall have jurisdiction to hear and determine all motions for a new trial in cases tried in any of its courts where such motions arise either on questions of fact or for instruction upon any matters of law, and that the Supreme Bench shall make all needful rules and regulations for the hearing before it of all of said matters.  Code (1957) Article 27, Section 594 provides, inter alia, that all motions for new trials in criminal cases in Baltimore City shall be heard by the Supreme Bench.  In Johnson v. State, 219 Md. 481, 150 A. 2d 446 (1959), Judge Prescott, for the Court,  [***14]  pointed out that this constitutionally granted power to hear motions for new trials is unusual, if not unique.  Judge Prescott said:

"[T]hat one of the purposes of the procedure contemplated by the constitution is to seek uniformity of decision and provide a forum where there can be had the benefit of review in cases where an appeal will not lie.  Often, where an appeal does lie the powers of review of the Supreme Bench in ruling upon the motion for a new trial are broader in scope than those of this Court.  It may weigh the evidence in a criminal case even though the case was tried before a jury, and grant a new trial in its sound discretion.  It also has the authority to weigh and consider newly discovered evidence.  The opportunity to seek a setting aside of his conviction before the Supreme Bench is a valuable one which appellant was denied solely because of lack of funds." 219 Md. at 483.

 [*500]  See also Williams v. State, 204 Md. 55, 67, 102 A. 2d 714 (1954). It was held in Johnson that under Griffin v. Illinois, supra, an indigent defendant, convicted in a criminal court in Baltimore City, must be furnished a free transcript of the testimony [***15]  if he requests it in seeking a new trial as long as the Supreme Bench will not hear such motions without a transcript.
Rule 747 of the Rules of the Supreme Bench of Baltimore City (1961) reads as follows:
"Every motion for a new trial or in arrest of judgment in criminal cases shall be filed before the official closing hour of the clerk's office on the third day succeeding that upon which the verdict shall have been rendered, but in no event shall such motion be filed after the court shall have imposed sentence, unless the defendant at the time the verdict is rendered requests the court to suspend sentence pending the filing of a motion for a new trial or in arrest of judgment.
"The computation of time for filing a motion under this Rule shall be in accordance with Md. Rule 8.
"All reasons for a motion shall be filed within the time limited for filing the motion, and no other reason shall  [**109]  be assigned thereafter without leave of the court." n1

n1 This rule is not contained in the record, but was agreed to be in effect at the time of trial by counsel for the State and the appellant.  Indeed, both counsel argued in respect of its meaning and application.  Moreover, one of the following rules of the Supreme Bench of Baltimore City, dealing with motions for new trials from the Criminal Court, was referred to by Chief Judge Sobeloff, for the Court, in Williams v. State, 204 Md. 55, 66, 102 A. 2d 714 (1954). Under these circumstances, this court may consider the rule an existing one of the Supreme Bench of Baltimore City.  Dembeck v. Bethlehem Shipbuilding Corp., 166 Md. 21, 29, 170 Atl. 158 (1934); Taylor v. Denny, 118 Md. 124, 126, 84 Atl. 369 (1912). See also Tydon v. Spong, 237 Md. 107, 205 A. 2d 220 (1964).

 [***16]  
Maryland Rule 764 b provides:
"For a period of ninety (90) days after the imposition 

 [*501]  of a sentence, or within ninety (90) days after receipt by the court of a mandate issued by the Court of Appeals upon affirmance of the judgment or dismissal of appeal, or thereafter, pursuant to motion filed within such period, the court shall have revisory power and control over the judgment or other judicial act forming a part of the proceedings.  The court may, pursuant to this section, modify or reduce, but shall not increase the length of a sentence. After the expiration of such period, the court shall have such revisory power and control only in case of fraud, mistake or irregularity."
Within this frame of constitutional and statutory provisions, decisions and rules of court, we turn to what happened to Brown.
After Judge Harris had rendered his verdict on December 12, 1963, he asked whether Brown wished sentence deferred or was ready for sentence. Brown's counsel said he believed his client was ready for sentence then.  The following colloquy then occurred between the court, Mr. Cannizzaro, the Assistant State's Attorney who had tried the case for the State, and Mr.  [***17]  Manelli, Brown's trial counsel:

"(The Court) Is there any record?
(Mr. Cannizzaro) May 1952, disorderly conduct.  On February 18th, 1960 he was released after serving five years for manslaughter, having been convicted October 11th, 1956 in Frederick County.
(The Court) Is that all he has?
(Mr. Cannizzaro) Yes sir.
(The Court) Brown, stand up.  Is there anything you care to say prior to imposition of sentence?
(Mr. Brown) No, sir.
(The Court) I sentence you to prison for the rest of your natural life.
(Mr. Manelli) Your Honor, I would like to preserve the man's right for a motion for a new trial.
(The Court) If you wish to, I will have to strike out 

 [*502]  the sentence. If you wish to give it further thought I will strike out the sentence.
(Mr. Manelli) On his request, I would like to consider it."

The clerk's docket entries of that day show only "Sentence deferred pending the filing of a Motion for a New Trial."
The motion was filed on December 16.  On Brown's petition and affidavit to prosecute the motion as an indigent defendant, his present counsel was appointed by the court to represent him.  On April 15, 1964, Brown, by his new counsel, withdrew [***18]  his motion for a new trial. Thereafter, certain information came to the judge as to the details concerning Brown's manslaughter conviction referred to prior to the imposition of the life sentence on December 12, 1963. n2

n2 No contention is made on this appeal that Brown and his counsel were not notified of the additional information which had come to the trial judge's attention, or were not given an opportunity to be heard in connection therewith.  See Costello v. State, 237 Md. 464, and cases therein cited.  The record affirmatively indicates that such notice and opportunity were given.

 [**110]  On May 20, 1964, over the objection of Brown's counsel, Judge Harris, after referring to the life sentence imposed on December 12, 1963, as a "complete nullity," sentenced Brown to death.  This appeal is from the judgment entered on that sentence.
The issue presented is whether the life sentence imposed on Brown on December 12, 1963 was vacated or suspended. If it was vacated, absent any question of double [***19]  jeopardy, it was a nullity, and the case stood as if no sentence had ever been entered.  State v. Butler, 72 Md. 98, 18 Atl. 1105 (1890). If only the execution of the life sentence was suspended, the sentence could not thereafter be increased to a sentence of death.  Maryland Rule 764 b.
As Rule 747 of the Supreme Bench of Baltimore City recognizes, while generally a defendant in a serious criminal case, or his counsel, immediately after a verdict of guilty, asks the judge to defer imposing sentence pending the filing of a motion for a new trial, and consideration thereof by the Supreme Bench, 

 [*503]  or pending consideration of whether or not such a motion will be filed, it is not unusual for the sentence to be imposed first and the request to invoke the rule to be made afterwards, within the three day period.  Under such circumstances, the defendant may have been committed to the penal authorities and so have begun serving his sentence before the request is made.  While the rule states that the request shall be made at the time the verdict is rendered, in practice, the rule is applied as to a request made at any time within the three day period. n3

n3 The practice and procedure referred to in the above paragraph were agreed to by counsel at argument, and are consonant with the knowledge of this Court.

 [***20]  
If a defendant has begun serving his sentence in a penal institution and is no longer in the custody of an officer of the court, as he is while awaiting sentence, his sentence can not thereafter be increased.  Such an increase is double jeopardy, whether under the Fifth Amendment to the Federal Constitution, or, as in Maryland, under the common law.  United States v. Murray, 275 U.S. 347, 358 (1928); Ex parte Lange, 85 U.S. 163 (1873). See Czaplinski v. Warden, 196 Md. 654, 658, 75 A. 2d 766 (1950). Cf. Cisson v. United States, 37 F. 2d 330 (4th Cir. 1930). See Wharton's Criminal Law and Procedure §  2191 (1957).
The meaning of the Supreme Bench rule is apposite, for it is evident that Brown's counsel meant to invoke it, however informally, after the imposition of the life sentence at the conclusion of the trial.  That rule and its predecessors were promulgated under the mandate of Section 33 of Article IV of the Maryland Constitution.  The constitutional and statutory intent to give defendants convicted of crimes in the Criminal Court of Baltimore the right to have questions of fact and law reviewed by the Supreme Bench of Baltimore City on a motion for a new [***21]  trial is clear. n4

n4 The Supreme Bench of Baltimore City does not have power to review sentences. Recommendations in respect of appeal of sentences are under consideration by the Commission to Study Sentencing in Criminal Cases.

The mere fact that sentence has been imposed has been declared by the Supreme Bench under its rule 747 not to constitute 

 [*504]  a bar to the filing of a motion for a new trial. If the rule were construed to mean that the suspension of sentence referred to therein is equivalent to a vacating of the sentence, a convicted defendant might well hesitate  [**111]  to invoke his right to file the motion, for, if the new trial were denied, his sentence might be increased.  Moreover, under such a construction, a convicted defendant who filed his motion on the third day after sentence might not be subject to an increase if his motion was denied because he had begun to serve his term and could invoke the protection against double jeopardy, while a defendant who filed his motion the day [***22]  after the imposition of sentence would have no such safeguard.  In framing its rule, the Supreme Bench may well have had these considerations of fairness in mind.
"To suspend" has been defined in various ways; among the definitions are "to postpone", and to "stay the execution"; "to stay, as a decree: -- not synonymous with vacate" (Black's Law Dictionary, 4th ed.); "to make inoperative temporarily"; "to cease (for a time) from the execution or performance of" [The Oxford English Dictionary (1933)].  In Stewart v. Oneal, 237 F. 897 (6th Cir. 1916) in considering the effect of a statute that upon an appeal being taken the judgment or decree in the lower court shall be suspended, the Court of Appeals said: "Now 'vacate' and 'suspend' are not synonymous.  Vacate means to annul, set aside, or render void; suspend, to stay.  When a thing is vacated it is devitalized.  It is not when suspended. It may be suspended, and yet retain its vitality." n5 237 F. at 906.

n5 It was held that, under the statute, an appeal only suspended the decree vacating probate of a will, and the dismissal of the appeal, even though wrongful, could not have the effect of vacating the decree and leaving the will in force.

 [***23]  
The meaning of the Supreme Bench rule, however, in our opinion, does not depend upon the niceties of definition but upon the reasonable intendment of the language used in the light of the purpose to be effectuated.  Shub v. Simpson, 196 Md. 177, 191, 76 A. 2d 332 (1950); Darnall v. Connor, 161 Md. 210, 214-16, 155 Atl. 894 (1931). The clear purpose of the 

 [*505]  rule is to permit convicted defendants to invoke their important right to file a motion for a new trial, even though sentence has been imposed.  A construction of the language used (the request "to suspend sentence pending the filing" of the motion) to mean only that the execution of the sentence is to be stayed pending the hearing on the motion would leave the defendant free to exercise his right, unhampered by the fear of increased sentence. If the rule were construed to mean that the sentence was to be vacated, a defendant's life, as here, might depend on whether he filed the motion the first or third permitted day.  The Supreme Bench, in our judgment, did not intend to subject a defendant to such fears or vagaries of chance in the exercise of his right.
In view of these considerations, the use of the word [***24]  "suspend" rather than "vacate" is particularly significant.  Moreover, a sentence can hardly be "vacated" pending the filing of a motion for a new trial. If a sentence is vacated, it is a nullity, irrespective of time.  Nor is it logical to read "suspend" as meaning "suspend the imposition of sentence" when the clause refers to a request made only after sentence has been imposed.  The reasonable construction of the rule, in our opinion, is that on request the execution of the sentence which has been imposed is to be suspended.
The State argues that if the rule means that, on request, only the execution of the sentence is stayed pending the hearing on the motion, there would be a conflict between the time fixed for filing an appeal and the hearing on the motion by the Supreme Bench of Baltimore City.  We do not agree.  We have held that the filing of a motion for a new trial, after judgment and sentence, does not extend the time for the filing of an appeal which, under Maryland Rule 812 a, must be filed within thirty days from the date of the judgment appealed from.  Colter v. State, 219 Md. 190, 148 A. 2d 561 (1959); Hayes v. State, 141 Md. 280, 118 Atl. 652 (1922). In those [***25]  cases, however, there was no question as to  [**112]  whether the execution of the sentence had been stayed under a rule such as the one of the Supreme Bench here involved.  In Tiller v. Elfenbein, 205 Md. 14, 21, 106 A. 2d 42 (1954), a civil case, we held that even after a judgment has been entered and an appeal taken therefrom, the trial court 

 [*506]  retains its control over the judgment for such reasonable time as may serve the court's convenience in disposing of a motion for a new trial, but that, unless the appeal is dismissed when the motion comes on for hearing, the appellant must elect between his motion and his appeal. n6 In Tiller also, the operation of the judgment had not been stayed but we noted that in equity, the lower court has power to suspend the operation of a decree by special order passed before it becomes enrolled.  205 Md. at 17, citing Hancock v. Stull, 199 Md. 434, 86 A. 2d 734 (1952).

n6 Under Maryland Rule 564 b 1, adopted after Tiller, in non-jury cases at law, the entering of a judgment nisi prevents the running of the time for filing an appeal until final judgment is entered.

 [***26]  
When the execution of a sentence is stayed under Supreme Bench Rule 747, there is, at that time, no final judgment from which an appeal will lie.  Hancock v. Stull, supra, 199 Md. at 436-37; Herbert v. Rowles, 30 Md. 271 (1869). See also Hanley v. Stulman, 216 Md. 461, 466-68, 141 A. 2d 167 (1958). Under these circumstances, therefore, there is no conflict between the time fixed for filing the appeal and the hearing on the motion by the Supreme Bench of Baltimore City because there is no appealable judgment.  If the motion for a new trial is withdrawn, or heard and denied, the suspension of the execution of the sentence is thereupon automatically terminated and the time for the taking of an appeal runs from that date. n7

n7 Code (1957), Art. 5, §  13 which provides that in all criminal actions where sentence has been suspended by the court the defendant shall have the right to appeal to the Court of Appeals under §  12 of the Article, is not in conflict with our interpretation of the Supreme Bench Rule 747; that section of the Code refers to the suspension of the imposition of sentence, not to the suspension of its execution.  See Pearlman v. State, 226 Md. 67, 172 A. 2d 395 (1961). The present case does not deal with the suspension of the imposition of a sentence.

 [***27]  
The report of the colloquy between Brown's trial counsel and the judge after the life sentence had been imposed is fragmented and unclear.  It is evident, however, that Brown's counsel wished time to consider filing a motion for a new trial and that Judge Harris desired to give him the right to do so.  The Supreme Bench rule provided a well-known means by which the desired 

 [*507]  result could be attained.  There was no formal invocation of the rule, but such a formality was unnecessary.
When his counsel made the request, Brown was in no position to claim double jeopardy if his motion for a new trial was not filed, or filed and denied, or, as happened, filed and withdrawn and his sentence thereafter increased.  However, if, as we believe, the sentence was supended under the rule, that rule can not have one meaning for one defendant and another meaning for another defendant.  The proper interpretation of the rule is that, invoked, the execution of the sentence is suspended pending action on the motion for a new trial. Heinous as was Brown's crime, his sentence had been imposed and remained in effect, unless a new trial were granted.  Under Maryland Rule 764 b, that sentence could [***28]  not be increased.
The fact that the court's docket does not show the imposition of the sentence and its subsequent stay can not affect Brown's status.  That status depended upon what had happened in open court, in his presence, not upon the clerk's interpretation thereof.  The sentence should have been recorded and the stay of its execution noted.  But the clerk's failure properly to  [**113]  interpret what had transpired can not alter the facts that a life sentence had been imposed, the rule invoked, and under it, only the execution of the sentence had been stayed.
Nor does the court's phrase "If you wish to give it further thought I will strike out the sentence" necessarily indicate the judge intended to vacate the sentence rather than to suspend it under the rule.  The colloquy was informal.  It is clear the judge was concerned with Brown's right to file the motion, rather than with the words in which that right was recognized.  The distinction between suspension and vacating a judgment is not always recognized even in formal opinions.  See Stewart v. Oneal, supra. The judge's recollection of the effect of what was said, some five months afterwards, when he had determined [***29]  to increase the sentence to the death penalty, is not conclusive.  The determination is to be made as of the time when the sentence was imposed.  In view of all the circumstances, we think the fair intendment of what took place immediately thereafter was that Brown's counsel in effect, asked for the invocation of the Supreme Bench rule and that the judge, desirous of 

 [*508]  preserving Brown's rights, in effect, irrespective of semantics, acceded to the request.  Under that rule, the sentence was suspended, not vacated, and, unless Brown's petition for a new trial had been granted, the sentence could not thereafter be increased.
Judgment of conviction affirmed; sentence of death stricken, and sentence of imprisonment for life reinstated.  

117 of 138 DOCUMENTS 

CITY OF GREENBELT, MARYLAND, et al. v. JAEGER 

No. 161, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 456; 206 A.2d 694; 1965 Md. LEXIS 746 

February 8, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Two appeals in one record from the Circuit Court for Prince George's County; Bowie, J.  

DISPOSITION:
Appeals dismissed, with costs.  

HEADNOTES:

Zoning -- Standing To Appeal -- Neither Appellant Was An "Aggrieved Party" -- Appeal Dismissed.  In the instant zoning case it was held that appellee's motion to dismiss this appeal should be granted because neither the individual appellant Avrutis nor the corporate appellant, the City of Greenbelt had standing to appeal since they were not "aggrieved parties".  The Court stated that Avrutis' property was in a residentially zoned area at a considerable distance from and out of sight of the area rezoned for apartment use and that he failed to show that he has or will suffer a private and special wrong different in character and kind from that suffered by the public generally.  Therefore, it was held that he did not show that he had such an interest in the subject matter as bestowed on him standing to attack the validity of the rezoning. It was further held that the City of Greenbelt had no sounder standing.  The subject property was not within its corporate limits and although the park which is contiguous to the subject property on three sides [***2]  is within the City limits, the common barrier is technical rather than real because the park is owned by the United States and is under the jurisdiction of the National Park Service.  The City collects no taxes from the owner of the park, the United States, and exercises no police power in it.  No citizen of the City lives in it.  The Court cited the general rule that a municipality has the same right to appeal as any other litigant.  However, in the present case the City of Greenbelt neither claimed nor showed any fact or circumstance which made it aggrieved except as a representative of its citizens and residents. The Court went on to state that even if it were assumed that there were citizens or residents of Greenbelt who were aggrieved by the rezoning, an association or corporate body representing only the viewpoint of its members is not itself aggrieved merely because its members are.  Further, the fact that a large number of apartments, which might suffer from competition offered by the apartments planned to be built on the rezoned land, were being built within the corporate limits of Greenbelt would not give the owner of the apartments in Greenbelt, much less the City of Greenbelt,  [***3]  standing as an aggrieved party. 

SYLLABUS:

The County Commissioners of Prince George's County sitting as a District Council divided two to two when the rezoning application by Carl J. Jaeger, Jr. came before it.  On appeal to the Circuit Court the trial judge treated the application for rezoning as having been denied and ordered the rezoning be put into effect.  From this order, the City of Greenbelt and Avrutis, an individual, appeal.  

COUNSEL:
Thomas R. Brooks for City of Greenbelt, one of appellants, and William J. Avrutis, in proper person, other appellant.
Jerrold V. Powers, with whom were Sasscer, Clagett & Powers on the brief, for appellee.
Brief Amicus Curiae filed by Robert W. Kernan, Gerald F. Kozlowski, Richard Becker, Dennis Webb, Allan York, William Mothersole, Edward Bowen, Leo C. Rudegeair, Eric D. Smith, Arthur Miller, William Derry and Robert Olds -- Movants, on the brief.
Brief Amicus Curiae filed by The United States of America, Ramsey Clark, Assistant Attorney General, Roger P. Maquis and Edmund B. Clark, Attorneys, Department of Justice, on the brief.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Keating, J.,  [***4]  Associate Judge of the Second Judicial Circuit, specially assigned.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*458]   [**695]  The Prince George's County Planning Board of the Maryland-National Capital Park and Planning Commission, declining to follow the report of its technical staff which had suggested five detailed reasons why the rezoning sought should not be granted, including a finding (which the record would appear to make at the least fairly debatable) that there had been no significant change in the area involved, recommended to the County Commissioners, sitting as a District Council, that some seventy-six and a half acres on the "*** easterly side of Kenilworth Avenue opposite its intersection with Pontiac Street and approximately 1500 feet south of Greenbelt Road," be largely rezoned. The property on three sides is contiguous to Greenbelt Park, an area of some eleven hundred acres which is within the corporate limits of the City of Greenbelt but is owned by the United States and is within the domain of the Department of the Interior.  Eight acres were to be reserved as a site for a school.  The remaining sixty-eight or sixty-nine acres [***5]  were to be divided into three zones -- some thirty-eight or thirty-nine acres for high rise apartments (R. H.), some nine acres for R.30 zoning, and some nineteen acres for R.10 housing.  The District Council, four of the five members sitting, divided two to two when the matter came before it.
Judge Bowie, on appeal to the Circuit Court, treating the application for rezoning as having been denied, found the action to be arbitrary, capricious and unsupported by the evidence before the Council, and by an order passed January 7, 1964, directed that the rezoning recommended by the 

 [*459]  Planning Board be put into effect.  The individual appellant Avrutis and the corporate appellant, the City of Greenbelt, both of whom had appeared before the District Council in opposition to the rezoning, were thereafter allowed to intervene when they pleaded ignorance of the order ordering the rezoning, and, on their respective motions, the operation of the order was suspended on February 5, 1964.  After a further hearing, Judge Bowie, on April 7, reinstated or repassed his order of January 7.  The City of Greenbelt filed its notice of appeal on April 28 and the individual appellant Avrutis filed [***6]  a similar notice on May 4.
Appeals to this Court from a final judgment of the Circuit Court on appeal to it from the District Council in cases of the rezoning of individual properties may be taken only by "an aggrieved party" under Prince George's County Code (1963 Ed. Everstine), Art. 59, Sec. 85 (J).
 [**696]  The appellee moved to dismiss the appeals because neither the individual appellant Avrutis nor the corporate appellant, the City of Greenbelt, was an "aggrieved party" (the lower court had assumed without deciding that they were) and because the appeals had not been taken within thirty days of the order of January 7, 1964, after deducting the number of days that order was in a state of suspension under the order of February 5, 1964, although they had been taken within thirty days of the reinstating order of April 7, 1964.
We do not reach the second ground relied on to justify the dismissal of the appeals since we think they must be dismissed for the reason that neither appellant was aggrieved. Avrutis owned and lived in a home seven and a half miles from the subject property. He disliked the idea of high rise luxury apartment houses and five or six-story elevator apartments [***7]  being near Greenbelt Park, because the residents of these buildings would flood the park with uses more sophisticated -- such as horseback riding -- than those presently availed of in the park by the ordinary citizens and residents of the region of the County served by the park, such as picnicking, camping and hiking.  He also feared that if and when in the indefinite future he desired to sell his home, the hypothetical purchaser might find the park -- seven and a half miles away -- less attractive 

 [*460]  than it presently is and not be willing to pay as much for the house as he presumably presently would.
In Pattison v. Corby, 226 Md. 97, Pattison, a homeowner who lived "*** a considerable distance to the west, and out of sight of the property of the applicants * * *," contended that the planned use of the property, if the rezoning was granted, posed an "immediate and dangerous threat" to the stability and continued orderly development of the neighborhood and would make for the discomfort, depreciation and devaluation of surrounding areas, including that in which he lived. We said (p. 101):
"This Court, in the absence of a statute creating a private right as a taxpayer [***8]  or otherwise, has long adhered to the rule of law that an owner of zoned property has no right to enforce zoning regulations in a court of equity (even in a taxpayers' suit) unless he is able to allege and prove that he has or will suffer a private and special wrong different in character and kind from that suffered by the public generally."

and concluded (p. 103):
"In the instant case, where the appellant, other than predicting that the present reclassification was but the first step in a planned non-residential development of adjacent acreage (to that presently rezoned) which will in time adversely affect his property along with other properties in the neighboring subdivisions in the same planning district, assigned no other reason why he was aggrieved, we think that the position of his property in a residentially zoned area -- remotely located as it is at a considerable distance from and out of sight of the area rezoned for apartment use -- was not enough to show that the appellant had such an interest in the subject matter as bestowed on him standing to attack the validity of the decision of the council."

Avrutis is in no better position to appeal than was Pattison.  [***9]  See also Marcus v. Montgomery County, 235 Md. 535; 

 [*461]  Loughborough v. Rivermass, 213 Md. 239, and compare Toomey v. Gomeringer, 235 Md. 456.
The City of Greenbelt has no sounder standing.  The subject property is not within its corporate limits and although the park which is contiguous to the subject property on three sides is within the city  [**697]  limits the common barrier is technical rather than real because the park is owned by the United States and is under the jurisdiction of the National Park Service.  The City collects no taxes from the owner of the park, the United States, and exercises no police power in it.  No citizen of the City of Greenbelt lives in it.
The Mayor of Greenbelt testified that he brought to the District Council an appeal to deny the rezoning on behalf of the citizens of Greenbelt and said that the City Council of Greenbelt urged denial because the proposed uses would be incompatible with the uses of the surrounding area.  He also said that within the corporate limits of Greenbelt the building of an extensive garden type apartment development was under way, which would consist of five thousand units housing some twelve thousand [***10]  five hundred people, which in the opinion of the City Council and the "citizens of Greenbelt" would amply provide for apartment needs, present and prospective, in and around the City of Greenbelt.
We may assume that a municipality of Prince George's County has a right to appeal in a case of the rezoning of property in the Maryland-Washington Regional Planning District if it is a party aggrieved in its own right.  In Zoning Appeals Board v. McKinney, 174 Md. 551, 562, Judge Offutt for the Court said (by way of dictum, it is true): "Moreover, apart from statute, the general rule is that a municipality has the same right to appeal as any other litigant.  4 C. J. S. Appeal and Error 386, Sec. 205." n1 See also Mayor & C. C. 

 [*462]  of Balto. v. Shapiro, 187 Md. 623. In the complete revision of Appeal and Error, published in 1957, 4 C. J. S., Sec. 205, p. 605, it is said:
"Appeals and writs of error may usually be maintained by cities, counties, and other municipal corporations, or quasi corporations to the same extent and in the same manner as by other litigants, if they are interested parties and are aggrieved by the judgment, order, or decree complained of,  [***11]   but not otherwise." (Emphasis supplied)

The cases support the text.  See for example, Boudakian v. Town of Westport (Mass.), 181 N. E. 2d 336, and Carlson v. West River Oil Co. (S. D.), 64 N. W. 2d 294.  [**698]  In Town of Somerset v. Montgomery County, 229 Md. 42, because the town was the record owner of a lot of ground which if owned 

 [*463]  by an individual would have made him a person aggrieved by the rezoning of nearby land entitled to appeal, we held (p. 52): "Without reaching the question of whether the Town would be a proper appellant if it did not own the lot, we think that under the circumstances it had standing to appeal."

n1 The Legislature has indicated that a municipality is an interested party who may be aggrieved by the zoning of property within its borders.  Code (1964 Supp.), Art. 66B, Sec. 7 (j) (applicable to the Mayor and City Council of Baltimore and to cities and incorporated towns of more than 10,000 inhabitants) provides:
"Appeal from board to court.  -- Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may appeal to a court of record on the ground that such decision is illegal in whole or in part."
and Code (1957), Art. 66B, Sec. 7 (o), gives an appeal to the Court of Appeals.  Code (1964 Supp.), Art. 66B, Sec. 22 (i) (applicable generally to counties, cities and other incorporated areas) has the same provision as to appeals to the circuit court as Sec. 7 (j), and Sec. 22 (o) is like Sec. 7 (o) as to appeals to the Court of Appeals.  Prince George's County Code (1963 Ed. Everstine), Art. 59, Sec. 93, provides:
"Before the District Council of Regional District in Montgomery and Prince George's Counties may amend the zoning ordinance of either county by changing the zoning classification of property within any incorporated municipality, the application for such change shall be referred to the governing body of the incorporated city or town for its recommendation."
In the only cases we have found where a municipality has been allowed to appeal on its own behalf in a zoning matter, under statutes somewhat similar to those cited in this footnote, the property has been within the boundaries of the municipality. See for example, Perelman v. Board of Adjustment (Pa.), 18 A. 2d 438; Fox v. Adams (N. Y.), 132 N. Y. S. 2d 560, and compare David v. Board of Appeals of Reading (Mass.), 132 N. E. 2d 386.

 [***12]  
In the present case the City of Greenbelt neither claimed nor showed any fact or circumstance which made it aggrieved except as a representative of its citizens and residents. Even if it be further assumed that there were citizens or residents of Greenbelt who were aggrieved by the rezoning ordered by Judge Bowie, it is clear that an association or corporate body representing only the viewpoint of its members is not itself aggrieved merely because its members are.  Judge Markell for the Court said in Windsor Hills Imp. Ass'n v. Baltimore, 195 Md. 383, 394: "A corporation is not sufficiently 'interested' to sue, or 'aggrieved' to appeal, merely because its members are 'interested' or 'aggrieved'." See also Norwood Hts. Imp. Ass'n v. Baltimore, 195 Md. 1; Southland Hills Improvement Ass'n v. Raine, 220 Md. 213; Bar Association v. District Title Co., 224 Md. 474, 476; and Village of Bensenville v. County of DuPage (App. Ct. Ill.), 174 N. E. 2d 403.
The fact that a large number of apartments, which might suffer from competition offered by the apartments planned to be built on the rezoned land, were being built within the corporate limits of Greenbelt would not give [***13]  the owner of the apartments in Greenbelt, much less the City of Greenbelt, standing as an aggrieved party. Kreatchman v. Ramsburg, 224 Md. 209.
No appellant with standing to appeal is before this Court and necessarily, therefore, the motion of the appellee for dismissal of the appeals must be granted.  Southland Hills Improvement Ass'n v. Raine, supra. This forced dismissal is not to be taken as approval of the determination and actions of the lower court which were appealed from.
Appeals dismissed, with costs.  

118 of 138 DOCUMENTS 

SIEMIESZ v. AMEND, et al.  

No. 166, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 438; 206 A.2d 723; 1965 Md. LEXIS 741 

February 5, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed March 9, 1965, Denied March 10, 1965.  

PRIOR HISTORY:
Appeal from the Circuit Court of Baltimore City; Barnes, J.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Trusts -- Real Property -- Resulting And Constructive -- Defined -- Evidence Did Not Warrant Imposition Of Either One In This Case.  In the instant case the appellant contended that he was the sole owner of the property in question and that the appellee's name was put on the deed as joint tenant by mistake or fraud.  Thus, he claimed, appellee held title to an interest in the property as trustee for him, and there was a resulting or constructive trust in his favor.  The Court noted that the burden of proof rests heavily on one challenging the accuracy of an instrument of title to land. If this were not so, the reliance which the public necessarily puts upon land title instruments would be seriously disturbed.  They went on to state that a resulting trust arises upon the presumed intention of the parties where the terms of the disposition or accompanying facts establish that beneficial interest is not to go with legal title. A constructive trust, on the other hand, will be created by equity where a person [***2]  holding title to a property is subject to an equitable duty to convey it to another person on the ground that he would be unjustly enriched if he were permitted to retain it.  Such a trust may arise because the property was acquired through duress, fraud, undue influence or mistake, or through a breach of fiduciary duty, or through wrongful disposition of another's property.  After reviewing the record in the case at bar, the Court held that the evidence did not warrant the imposition of a resulting or constructive trust. 

SYLLABUS:

Bill in equity by Zofia Siemierz Amend, a joint tenant of a residential property, and her husband, for the sale of the property in lieu of partition against Feliks Siemiesz, the other joint tenant.  Feliks Siemiesz filed a cross bill alleging sole ownership and seeking appropriate relief.  From the chancellor's decree dismissing the cross bill with prejudice and ordering sale of the property, Feliks Siemiesz appeals.  

COUNSEL:
Marion A. Figinski for appellant.
B. Conway Taylor, Jr., with whom were Due, Whiteford, Taylor & Preston on the brief, for appellees.  

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

OPINIONBY:
MARBURY 

OPINION:

 [*439]   [**724]  Zofia Siemierz Amend, one of the appellees, was a joint tenant with her uncle, Feliks Siemiesz, appellant, of a residential fee simple property in Baltimore City at 3518 Frankford Avenue.  Mrs. Amend and her husband, the other appellee, filed a bill in equity for sale of the property in lieu of partition, to which an answer and cross bill was filed by her uncle alleging his sole ownership of the property and seeking appropriate relief.  An answer was filed to the cross bill.  On June 2, 1964, after testimony had been taken in open court, the chancellor signed a decree dismissing the cross bill with prejudice and ordering sale of the property.
Mrs. Amend and appellant are Polish by birth, and she is the daughter of his brother.  Mr. Siemiesz has been in this country since 1907, and has never married.  Apparently, he has from time to time financially assisted members of his family abroad, and in 1958 he sent funds to enable his niece to come to this country.  She arrived in February 1958.  At this time, her uncle furnished additional funds and purchased clothes for his niece which she considered as gifts.  In July [***4]  of that year she obtained employment.  It is to be noted that the niece understood no English when she arrived. However, the appellant spoke some English but an interpreter was used in the trial below for his testimony.
In August 1958, a contract to purchase the property in question 

 [*440]  was entered into by Mrs. Amend and her uncle. The testimony shows that appellant relied upon the advice and counsel of an acquaintance, Mr. Pietruszewski, who is now deceased.  The uncle wanted to purchase the house, but to  [**725]  accomplish this, it was necessary that another responsible and younger individual's obligation appear on the purchase money mortgage. In September, settlement for the house was made, when Mr. Pietruszewski discussed in Polish the details of the transaction.  The record shows that appellant knew and understood that Mrs. Amend was a co-tenant of the property.  The attorney for the Hamilton Federal Savings and Loan Association, mortgagee, testified as to his regular office practice of discussing the nature of tenancies with purchasers, and had noted in his file the presence of Mr. Pietruszewski.  The purchase price was $ 14,500 which included the purchase mortgage [***5]  of $ 9,600; the difference and settlement expenses, a little less than $ 5,500, were paid by appellant.  Title was placed in their names as joint tenants, and both he and his niece executed the mortgage. The niece and appellant moved into the house.  In December 1958 she married Charles Amend, and the three parties lived in the house as a family.  The uncle made three lump sum payments on the mortgage totaling $ 4000, and the first five or six monthly payments of $ 100 each.  The record indicates that regular monthly payments were also made by appellees as well as payments for maintenance, fuel, alterations and the like.  The parties lived together in reasonable harmony until the latter part of 1963 or early 1964, when differences arose leading to this litigation.
On this appeal, the uncle claims that the lower court erred in ordering the property sold and holding that the niece was a joint tenant since her name was put in the deed by mistake or fraud.  Thus, he contends that she holds title to an interest in the property as trustee for him, and there was a resulting or constructive trust in his favor.  The court below found that no resulting or constructive trust existed.  We agree.  [***6]  
The burden of proof rests heavily on one challenging the accuracy of an instrument of title to land. If this were not so, the reliance which the public necessarily puts upon land title instruments would be seriously disturbed.  Fasman v. Pottashnick, 

 [*441]  188 Md. 105, 51 A. 2d 664; Kelley v. Kelley, 178 Md. 389, 13 A. 2d 529. Implied trusts may be either resulting or constructive trusts.  A resulting trust arises upon the presumed intention of the parties where the terms of the disposition or accompanying facts establish that beneficial interest is not to go with legal title. In a suit to establish a resulting trust in real estate, the complainant has the burden of proof to establish the trust by plain, unequivocal and convincing evidence.  Fasman v. Pottashnick, supra; Sands v. Church, etc., 181 Md. 536, 30 A. 2d 771. Parol evidence may be sufficient to establish such a trust but the court should view it with great caution.  Fitch v. Double "U" Sales Corp., 212 Md. 324, 129 A. 2d 93.
In the case now before us, there is little evidence of any consistent nature which would justify the imposition of a resulting trust. The testimony shows that appellant could [***7]  not get a mortgage to finance the acquisition of the property without the personal obligation of his niece. Further, appellant knew from the beginning that his niece was on the deed to the property.  The attorney consummating the transaction testified that his regular office practice was to confer with the parties as to the manner in which title would be taken.  His file disclosed the presence of Mr. Pietruszewski, whose advice appellant relied upon, and who was known to the uncle for a number of years before the niece arrived in the United States.  The niece testified that the nature of title holding was explained in Polish by Mr. Pietruszewski at the settlement, which was never denied by the uncle; nor did he contest the testimony of Mr. Amend that the uncle told him around the time of his marriage to the niece that the house was in her name.  With respect to the financial aspects of the mortgage payments, it is clear that the uncle made the initial down payment, some lump sum payments, and several monthly payments. However, the niece also made monthly payments  [**726]  on the mortgage, made improvements to the property, and provided meals and other household requirements for [***8]  her uncle. We find that the evidence presented was not strong and convincing enough to establish a resulting trust.
Finally, we hold that the evidence was not sufficient to establish a constructive trust. Equity creates such a trust where a person holding title to a property is subject to an equitable 

 [*442]  duty to convey it to another person on the ground that he would be unjustly enriched if he were permitted to retain it.  Such a trust may arise because the property was acquired through duress, fraud, undue influence or mistake, or through a breach of fiduciary duty, or through wrongful disposition of another's property.  Carter v. Abramo, 201 Md. 339, 93 A. 2d 546; Fasman v. Pottashnick, supra; O'Connor v. Estevez, 182 Md. 541, 35 A. 2d 148; Lipp v. Lipp, 158 Md. 207, 148 Atl. 531. There is no evidence here of any misrepresentation by the niece. The appellant suggests that Mrs. Amend had some sort of control or domination over her uncle. However, we find no evidence in support of this contention and we must not overlook the court's finding below.  It specifically found no evidence of any misrepresentation made by the niece. The court went on to say:

"She [***9]  no doubt was not in [a] very good position to make any representation because she could not speak very good English at the time this transaction occurred, whereas I think the weight of the evidence indicates that the Cross Complainant can understand English, and perhaps even speak it reasonably well, and I would think a man who has been here since 1907 to the present time, and who was able to accumulate and save $ 15,000, would very likely be able to have some acquaintance with the English language.  It is hard for the Court to believe otherwise.  The Court did notice in several instances the witness was able to answer without the assistance of the Interpreter, so that I think on the whole matter the Cross Complainant was in much better position to understand the situation and protect himself than was Mrs. Amend at the time."

We have held in the past that in matters of this sort, the fact findings of the chancellor, who had the opportunity of viewing the witnesses and forming opinions of their credibility, are entitled to great weight.  Tiemann v. Welsh, 191 Md. 1, 59 A. 2d 628.
As we have reached the conclusion that the evidence did not warrant the imposition of either [***10]  a resulting or constructive 

 [*443]  trust, we must affirm the decree dismissing the cross bill of complaint and ordering the property sold in lieu of partition.
Decree affirmed, with costs.  

119 of 138 DOCUMENTS 

BESHORE, et al. v. TOWN OF BEL AIR, et al.  

No. 114, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 398; 206 A.2d 678; 1965 Md. LEXIS 736 

February 4, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed March 1, 1965, Denied March 2, 1965.  

PRIOR HISTORY:
Appeal from the Circuit Court for Harford County; Dyer, J. 

DISPOSITION:
Decree affirmed; appellants to pay the costs.  

HEADNOTES:

Public Policy -- Existence Of A Conflicting Private, Pecuniary Interest On The Part Of A Person Involved In Passing An Ordinance In Town Of Bel Air Held Not Supported By The Evidence Here.  In the instant case the appellants contended that "as a matter of public policy" Ordinance No. 157, adopted by the Town Commissioners of Bel Air was void because of the participation of a person in its passage who had a conflicting private pecuniary interest. However, it was held that this contention was not supported by the evidence.  The Court stated that there was no intimation in the evidence that the person in question influenced the proceedings or the result with respect to the ordinance. Rather, the passage of the ordinance seems to have been dictated by the necessities of the situation then facing the town, and the form of the enactment was suggested by independent counsel.  "Whether, in a particular case, a disqualifying interest exists, is a factual question and is governed by the circumstances [***2]  of that case, and the enunciation of a definitive rule is not possible."
Zoning -- Was Properly Includable In A Resolution Providing For Annexation Here.  In the case at bar the Court stated that they saw no logical reason to hold that zoning was not a proper "condition and circumstance" of annexation within the meaning of Code (1957), Art. 23A, sec. 19(b), and, thus, they held that the fixing of zoning classifications for newly annexed property is properly includable in a resolution providing for annexation by a municipality which has an authorized planning and zoning commission and where, as here, such municipality has otherwise complied with the requirements of Articles 23A and 66B of the 1957 Code.
Statutes -- Rule Against Enlargement By Implication Was Not Violated By Bel Air Ordinance Providing For Both The Annexation And Zoning Of Land.  The appellants in the instant case contended that Resolution No. 20 adopted by the Town Commissioners of Bel Air, which provided for both the annexation and zoning of four tracts of land, was invalid because it violated the "rules against enlarging by implication statutes in derogation of common law and requiring strict application [***3]  of all delegated powers." They argued that since neither Art. 23A nor Art. 66B of the 1957 Code provides for the combining of annexation and zoning in one proceeding, Resolution No. 20 is void.  The Court thought otherwise.  They stated that basically, no enlargement of the powers delegated by the two statutes is effected by exercising the powers together.  Although it is true that neither statute specifically provides for such a combination, the manner in which the Court interpreted Art. 23A, sec. 19(b), earlier in the opinion in regard to "conditions and circumstances" makes the combination permissible.
Constitutional Law -- Statutes -- To Embrace But One Subject, Described In Title -- Rules As To Sufficiency Of Title -- Bel Air Resolution No. 20 Properly Included Zoning Although Zoning Not Specifically Referred To In Title.  The appellants contended that Resolution No. 20, adopted by the Town Commissioners of Bel Air, violated Art. III, sec. 29, of the Maryland Constitution, made applicable to municipal charter amendments by Code (1964 Supp.), Art. 23A, sec. 13(c), on the grounds that it embraces more than one subject (annexation and zoning) and its title does not mention zoning.  [***4]  The Court noted that Maryland has given a liberal interpretation to the constitutional requirement.  They then stated the basic principle that "if several sections of the law refer to and are germane to the same subject matter, which is described in its title, it is considered as embracing but a single subject, and as satisfying the requirements of the Constitution in this respect.  * * *" It was held earlier in the opinion that the fixing of zoning classifications for newly annexed land is a proper condition and circumstance of annexation, and thus it is germane to the subject.  Therefore, the Court held that its inclusion in Resolution No. 20, without specific reference to it in the title, was proper.
Public Policy -- Resolutions -- Proper Public Notice -- Claim Of Lack Of, Held Without Merit.  In the instant case the appellant's contention that Resolution No. 20 was invalid because no proper public notice of the R-2 zoning classification of a particular tract of land was contained in the resolution, was held to be without merit.
Zoning -- Within Town Of Bel Air Not Regulated By Harford County Master Plan -- Zoning Classification Of Land Here Held Not Unreasonable  [***5]   Considering Character Of Adjoining Land.  It was held in the instant case that the Harford County Master Plan does not "regulate" zoning within the town of Bel Air, so that construction of a shopping center which was prohibited while the land remained in Harford County under the county's Master Plan, would not necessarily be prohibited once the town of Bel Air annexed the land.  The Court further held that as the situation stands today, they did not think that the zoning of the land in question as B-3 by the town was unreasonable considering the character of the land adjoining it in the county.
Zoning -- By Contract -- Rule Against, Not Violated Here -- No Showing Of Special Interest Legislation -- Right of Property Owners To Withdraw Consent To Annexation Prior To Completion.  The appellants in the instant case contended that both Ordinance No. 157 and Resolution No. 20, adopted by the Town Commissioners of Bel Air, were invalid because they were based on contracts and were special interest legislation, and further, because the property owners reserved the right to withdraw their consent to annexation during the pendency of the proceedings.  The Court held that [***6]  assuming without deciding that the rule against zoning by contract is applicable to initial zoning of newly annexed property, they did not feel that the circumstances in this case demonstrated such an illegality.  There was no evidence that the property owners and the town of Bel Air entered into any agreement in regard to the zoning of their respective properties.  Ordinance No. 157 makes no reference to any agreement and cannot be termed special interest legislation since it applies to any property which is proposed to be annexed. Nor does Resolution No. 20 make any reference to any agreement, or state any conditions to the annexation or zoning. The Court stated that there was no problem of zoning by contract here, since the legislative body of Bel Air has made no provision in Ordinance No. 157 or Resolution No. 20 conditioning their action in zoning on annexation upon any acts of the property owners.  In addition, although the petition for annexation did contain a provision that the property owners could withdraw their consent to annexation prior to its completion, the Court stated that it would seem that this right would be theirs regardless of such a provision.  

SYLLABUS:

Suit to [***7]  declare two ordinances adopted by the Town Commissioners of Bel Air invalid and for an injunction by Linwood L. Beshore, and others, citizens and taxpayers of Harford County and of Bel Air, against the Town of Bel Air, and others.  From a decree upholding the validity of the ordinances and denying the injunction, the complainants appeal.  

COUNSEL:
Michael P. Crocker, with whom were Morton P. Fisher, Jr. and Piper & Marbury on the brief, for appellants.
Albert P. Close and William H. Gorman, II, for appellees.  

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

OPINIONBY:
SYBERT 

OPINION:

 [*402]   [**680]  In this suit the appellants, who are citizens and taxpayers of Harford County and of Bel Air, its county seat, challenged the validity of two ordinances adopted by the Town Commissioners of Bel Air -- Resolution No. 20, which annexed and zoned four properties adjacent to the perimeter of the town, and Ordinance No. 157, passed earlier, which amended the town's zoning ordinance so as to permit the fixing of zoning classifications for newly annexed property in the annexation proceedings.  The appellees, who were [***8]  defendants below, are the Town of Bel Air, its five Town Commissioners, and its Superintendent of Public Works.  After a hearing, Judge Dyer in the Circuit Court for Harford County passed a decree upholding the validity of the two legislative enactments and denying an injunction to prohibit the issuance of building permits for the annexed property.  The complainants then appealed.
The four tracts annexed to the town by Ordinance No. 20 are contiguous and aggregate nearly 68 acres. They front on the east side of U.S. Route No. 1, on the south edge of Bel Air.  The 

 [*403]  largest, known as the Durham-Julio tract, consists of 44.76 acres, unimproved, zoned in the county as B-3 (General Business District), except for a small portion zoned A-1 (Agricultural District).  The next largest tract, known as the Pons-Kunkel property, also unimproved, contains 20.35 acres and was zoned in the county as R-2 (Urban Residence District, permitting single family dwellings).  The two remaining parcels, one containing 1.48 acres owned by one Tucker, and the other containing 1.33 acres owned by one Smith, are improved business properties and each was zoned in the county as B-3 (General Business [***9]  District).
Ordinance No. 157 and Resolution No. 20 were adopted by the Town Commissioners after the owners of the Durham-Julio tract, which was then outside the Bel Air town limits, failed early in 1961 to obtain from Harford County a permit for the construction of a shopping center. Their application, which was awaiting a public hearing before the County Commissioners after it had been approved by the Harford County Planning and Zoning Commission, was "checkmated" by a decision of the Circuit Court for Harford County in an unrelated case involving a property known as the "Worthington Farm", several blocks distant from the Durham-Julio tract but also adjacent to and outside the town limits.  The court held that no shopping center could be erected in the county near Bel Air, but only "at or near" one of the six areas designated for business service centers on the Harford County Land Use (or Master) Plan adopted by the County Commissioners in 1957.  The nearest of such areas is approximately three miles distant from Bel Air.  After the court's decision, no further steps were taken on the Julio's application to the county.
The Durham-Julio tract was part of a farm owned by W. Edgar [***10]  Durham, who had contracted to sell the 44.76 acres in question to Grove Point, Inc., a family corporation owned by three real estate developers named Julio.  Before the circuit court ruling just mentioned, the Julios had approached  [**681]  the Bel Air Town Commissioners relative to the furnishing of sewer service to the proposed shopping center, since no such county service was available.  The Town Commissioners, following their established policy, had replied that the shopping center could 

 [*404]  be connected with the town sewer system if the property were annexed to the town and arrangements were made for a suitable division of the costs.
Several days after the circuit court decision in the Worthington case, the Town Commissioners of Bel Air, a representative of Whitman, Requardt and Associates, the town's consulting engineers, and officials of the State and County Health Departments held a meeting on April 6, 1961, at which it was reported that the Town had several requests for the sewering of properties outside the corporate limits, and expected more, and that the town's boundaries would expand.  It was suggested that the Worthington and Durham properties could be sewered [***11]  without overloading the town's facilities.
In view of the fact that all previous annexations to the town had involved areas zoned non-commercial in the county (as pointed out by the appellees in their brief and argument), and of the further fact that some of the properties now considered for possible annexation held commercial classifications in the county, the Town Planning Commission at a meeting held on May 3, 1961, decided that sec. 4.6 of the Town Zoning Ordinance (No. 149), which provided that annexed territory should automatically be classified as R-1 (permitting single-family residences) until otherwise classified, should be revised and that independent legal opinion be sought to determine how this could be accomplished.  At a special meeting of the Planning Commission held on May 10, 1961, a legal opinion of a Baltimore law firm was submitted which suggested that sec. 4.6 be amended to read as follows:
"4.6 In all cases where territory has not been specifically included within a district, such territory shall automatically be classified as R-1 District until otherwise classified, but in cases of annexation of territory where the annexation proceeding provides a zoning [***12]  classification for the territory to be annexed, such territory shall be so classified upon incorporation into the Town of Bel Air."

Adoption of the amendment in the language of the legal opinion was recommended to the Town Commissioners who, at a 

 [*405]  meeting on the same day, discussed and approved the recommendation as submitted.  After two notices by publication, a public hearing was held on June 14, 1961, and on August 14, 1961, the Town Commissioners adopted Ordinance No. 157, embodying the amendment.  Apparently all requirements of Article 17 of the town's Zoning Ordinance (relating to amendments) and of Code (1957), Art. 66B (Zoning and Planning), were complied with in adopting the amendment.  On August 14 the Town Commissioners requested the Planning Commission to study adjoining areas and to make recommendations as to the proper zoning thereof, "with particular reference to the Worthington and Durham properties".
On August 17, 1961, W. Edgar Durham filed a petition with the town of Bel Air requesting the annexation of the 44.76 acre Durham-Julio tract. The petition was referred to the Planning Commission for its recommendations as to zoning in conjunction with [***13]  the proposed annexation. The Commission held a public hearing on the recommendation of its planning consultant, Julian Tarrant, that the property be zoned B-3 (General Business), except for a small strip suggested for a residential classification, and then recommended to the Town Commissioners that, if annexed, the Durham-Julio property be zoned as suggested by Mr. Tarrant.  The Town Commissioners introduced a resolution for the annexation of the tract, including the zoning as recommended, and published a notice of a public hearing for December 4, 1961.  Before that  [**682]  date, the public hearing and the annexation proceeding were cancelled because of (according to the appellants) certain procedural imperfections.
Then the owners of the Durham-Julio, Pons-Kunkel, Tucker and Smith properties filed with the Town Commissioners a joint petition, dated January 13, 1962, requesting that their properties be annexed by the town and that they retain the zoning classifications which they had in Harford County or be assigned similar zoning classifications under the town's Zoning Ordinance. The Town Commissioners requested the Bel Air Planning Commission to study the petition and make [***14]  recommendations in regard to zoning classifications. In turn, the Planning Commission directed Mr. Tarrant, the planning consultant, to recommend zoning classifications for the area to be 

 [*406]  annexed. Mr. Tarrant later recommended that upon annexation the Durham-Julio tract should be classified as B-3 (General Business) except for a small portion which he suggested for R-1 (Single-Family Residence).  As mentioned earlier, these two parts of the Durham-Julio property were zoned B-3 (General Business) and A-1 (Agricultural) in Harford County.  Tarrant recommended that the Pons-Kunkel property be classified R-1 (Single-Family Residence).  In the county this property was zoned R-2 (which permitted single-family dwellings).  As to the Tucker and Smith properties he recommended that they be zoned B-3, the same classification as they had in the County.
The Town Planning Commission on February 21, 1962, approved the new zoning classifications as suggested by Tarrant and, after the publication of notices on March 1 and 8, a public hearing on zoning was held by the Planning Commission on March 14, 1962.  At the hearing counsel for the owners of the Pons-Kunkel property stated that [***15]  the owners desired their property to be classified as R-2 (General Residence) upon annexation rather than R-1 as advertised in the notices of the hearing.  On March 20 the Planning Commission recommended to the Town Commissioners that the zoning classifications for the properties to be annexed be as Tarrant recommended except that the Pons-Kunkel property should be zoned R-2 rather than R-1.  On June 18 a charter amendment, Resolution No. 20, providing for the annexation and zoning of the land in question (with the classifications recommended by the Planning Commission) was introduced at a meeting of the Town Commissioners.  After the publication of four weekly notices, a public hearing was held on July 31, 1962, and on August 20, Resolution No. 20 was adopted by the Town Commissioners.
On November 3, 1962, the appellants filed a bill of complaint in the Circuit Court for Harford County seeking a declaratory judgment.  However, on March 22, 1963, an amended bill based on the general equity jurisdiction of the circuit court was filed praying that Ordinance No. 157 and Resolution No. 20 be declared invalid, that the Town, the Town Commissioners and the town's Superintendent of Public [***16]  Works be enjoined from 

 [*407]  issuing permits to any person for the erection of a shopping center on the Durham-Julio tract, and for general relief.  On January 31, 1964, the circuit court decreed, after a trial on the merits, that the Ordinance and the Resolution were valid and denied the relief prayed.
I
The appellants' first contention is that "as a matter of public policy" Ordinance No. 157, permitting annexation and zoning to be effected in one proceeding, is void because of the participation of a person in its passage who had a conflicting private pecuniary interest. The person referred to is Adolph A. Pons, Jr., who at the time of the enactment of Ordinance No. 157 was one of the Town Commissioners of Bel Air and the Commissioners' representative as a member of the town's Planning Commission. At the time in question, Pons' wife and two of her relatives were the owners of the 20.35 acre tract referred to as the Pons-Kunkel property.  Pons participated in deliberations and votes of the two  [**683]  town bodies leading to the adoption of the ordinance.
In an effort to show that Pons had a private pecuniary interest in the passage of Ordinance No. 157, the appellants [***17]  assert that at least since 1960 the owners of the unimproved Pons-Kunkel property desired to build apartments thereon but were prevented by two obstacles -- the use was not permitted under the property's zoning classification in the county, and the tract lacked sewer service, which would be available only if it were annexed to Bel Air.  They claim that the amendment of sec. 4.6 of the town's Zoning Ordinance was the first step in a scheme on Pons' part to bring his wife's property into the town with a zoning classification permitting apartments and to induce the Julios to consent to annexation of their larger tract with the same business classification it bore in the county, thereby rendering the extension of the town's sewer system to both properties economically feasible.
The difficulty with the appellants' argument is that it is not supported by the evidence.  A diligent search of the record has failed to reveal any clear evidence that the owners of the Pons-Kunkel tract desired or intended, at the time of the adoption of Ordinance No. 157, to build apartments on their property.  

 [*408]  When the ordinance was adopted on August 14, 1961, no petition for annexation had been [***18]  presented to the Town Commissioners, and there is nothing in the record to show that Pons had ever had any contact with the Julios before the ordinance was passed.  We think it is significant that when the original petition for annexation of the Durham-Julio tract was filed on August 17, 1961, the owners of the Pons-Kunkel property did not join in.  The first mention to any official agency of possible annexation of the latter parcel appears to have been made orally at a Planning Commission meeting on September 6, 1961, as is indicated in a subsequent letter from Mr. Tarrant to the chairman of the commission.  This date was more than three weeks after the passage of Ordinance No. 157.
While Pons participated in some or all of the action in the original Durham-Julio application, the proceedings proved abortive and were cancelled in December, 1961.  We think the inference is permissible from the evidence that the Pons-Kunkel interests did not positively decide to request annexation until the joint petition was filed by the owners of the four properties on January 13, 1962.  It was conceded that Pons did not attend meetings of either the Planning Commission or the Town Commissioners at [***19]  which this petition was discussed or voted upon.  There is no intimation in the evidence that Pons influenced the proceedings or the result with respect either to Ordinance No. 157 or Resolution No. 20.  Rather, the passage of the ordinance seems to have been dictated by the necessities of the situation then facing the town, and the form of the enactment was suggested by independent counsel.  The evidence fails to bear out the Machiavellian role attributed to Pons by the appellants, and the cases which they cite are distinguishable on the facts.
While it is true that most, if not all, courts apply a strict rule in striking down enactments where one who participated is shown to have a conflicting interest, we said in the recent case of Montgomery County v. Walker, 228 Md. 574, 580, 180 A. 2d 865 (1962): "Whether, in a particular case, a disqualifying interest exists, is a factual question and is governed by the circumstances of that case, and the enunciation of a definitive rule is not possible." On the record presented here, we cannot 

 [*409]  hold Judge Dyer clearly wrong in finding no conflict of interest on the part of Pons when he participated in the passage of Ordinance [***20]  No. 157, Maryland Rule 886 a, and thus the validity of the ordinance was properly sustained.  For similar holdings in cases involving more or less comparable facts, see Wilson v. Long Branch,  [**684]  142 A. 2d 837 (N. J. 1958); Van Itallie v. Borough of Franklin Lakes, 146 A. 2d 111 (N. J. 1958); Benincasa v. Incorporated Vill. of Rockville Centre, 215 N. Y. S. 2d 575 (1961); and see annotation, 133 A.L.R. 1257.
II
The appellants next contend that Resolution No. 20, providing for both annexation and zoning of the four tracts mentioned, is invalid for four specific reasons.  We shall discuss the issues in a sequence different from that appearing in the briefs.  The appellants argue that "zoning changes and classifications for which there is a special statute [Code (1957), Art. 66B] are not intended to be included in an annexation resolution under the guise of the 'conditions and circumstances' provision of the annexation statute [Code (1957), Art. 23A, sec. 19(b)]."
Section 19(b) of the annexation law, supra, provides:
"*** The resolution shall describe by a survey of courses and distances, and may also describe by landmarks and other well-known terms,  [***21]  the exact area proposed to be included in the change, and shall contain complete and detailed provisions as to the conditions and circumstances applicable to the change in boundaries and to the residents and property within the area to be annexed."
Resolution No. 20 in the case before us adequately describes the four tracts and provides for their annexation, and then fixes their zoning classifications (as hereinbefore mentioned) and makes other provisions expressly as "conditions and circumstances applicable to the change in said corporate boundaries and to the residents of property in the areas so annexed * * *".  Thus we must determine whether the assignment of zoning classifications is a proper "condition" or "circumstance" of annexation so that it may be accomplished in the annexation resolution.

 [*410]  The appellants do not cite (nor have we found) a single case supporting their argument, but rather base their contention on a survey of the annexation statutes of most of the States.  They point out that not one state annexation statute expressly provides for zoning as a proper condition and circumstance of annexation, even though many provide for a wide variety of other [***22]  subjects which are proper conditions and circumstances.  The only case raising the identical question was Tanner v. City of Boulder, 377 P. 2d 945 (Colo. 1962), but that case went off on a jurisdictional point and the issue presented here was not decided, as the appellants note in their brief.
We see no logical reason to hold that zoning is not a proper condition and circumstance of annexation. It does not seem to us that sec. 19(m) of Art. 23A, requiring the inclusion of certain provisions in an annexation resolution, and making permissive the inclusion of certain other provisions as to special treatment with respect to taxation and municipal services and facilities, was intended by the Legislature to limit the broad language of sec. 19(b) requiring the inclusion of "complete and detailed provisions as to the conditions and circumstances" which shall affect the "residents and property within the area to be annexed".  Not being blessed with prescience as to all situations which might arise, the Legislature chose not to define the types of conditions and circumstances which might properly be cognizable in future annexation proceedings.  The maxim "expressio unius est exclusio  [***23]   alterius", meaning that the expression of one thing implies the exclusion of another thing not mentioned (which is not a rule of law but merely an auxiliary rule of statutory construction), is not applicable to sec. 19(m) in view of the language of sec. 19(b), for the maxim should not be applied to override the manifest intention of the Legislature or a provision of the Constitution.  Kirkwood  [**685]  v. Provident Savings Bank, 205 Md. 48, 55, 106 A. 2d 103 (1954).
A municipality having an authorized planning and zoning authority has exclusive jurisdiction to zone annexed property, Code (1957), Art. 23A, sec. 19(p).  To require such a municipality to annex and then later zone, in separate proceedings, would appear to be illogical and wasteful when the requirements 

 [*411]  of both Art. 23A and Art. 66B can be satisfied in one proceeding, as happened in the instant case.  The realities of modern annexation are such that the owners of the properties to be annexed are vitally interested in the zoning classification which their properties will receive upon annexation. Delay in classifying could often result in considerable financial loss.
Although the precise question [***24]  as to the propriety of combining annexation and zoning classification in one proceeding does not appear to have been decided in any reported case, we did have occasion to comment on the problem in the recent case of City of Annapolis v. Kramer, 235 Md. 231, 201 A. 2d 333 (1964). That case involved an application for rezoning some years after the subject property had been annexed and zoned by one resolution.  While it was not necessary there to decide the question now before us, Judge Hammond, for the Court, reviewed certain provisions of Articles 23A and 66B and then stated (at p. 234 of 235 Md.): "It would appear that the provisions on the same subject matter of Articles 23A and 66B of the Code must be read together and be applied when a municipality zones for the first time in the course of annexing land.  * * *" In the case before us the requirements of both statutes were satisfied.  In one other case, Westwood Development Company v. City of Abilene, 273 S. W. 2d 652 (Tex. Civ. App. 1954), annexation and zoning were carried out in the same proceeding, but the validity of so doing was not at issue.
Judge Dyer concluded that zoning is a condition applicable to property.  We [***25]  agree, and hold that the fixing of zoning classifications for newly annexed property is properly includable in a resolution providing for annexation by a municipality which has an authorized planning and zoning commission and where, as here, such municipality has otherwise complied with the requirements of Articles 23A and 66B of the Code.
The appellants next argue that Resolution No. 20 is invalid because it "violates the rules against enlarging by implication statutes in derogation of common law and requiring strict application of all delegated powers".  They contend that since neither Art. 23A nor Art. 66B provides for the combining of annexation and zoning in one proceeding, Resolution No. 20 is void.  We think otherwise.  Basically, no enlargement of the 

 [*412]  powers delegated by the two statutes is effected by exercising the powers together.  Although it is true that neither statute specifically provides for such a combination, the manner in which we have interpreted Art. 23A, sec. 19(b), above in regard to "conditions and circumstances" makes the combination permissible.
It is further urged that Resolution No. 20 violates Art. III, sec. 29, of the Maryland Constitution,  [***26]  made applicable to municipal charter amendments by Code (1964 Supp.), Art. 23A, sec. 13(c), on the grounds that it embraces more than one subject (annexation and zoning) and its title does not mention zoning.
Maryland has given a liberal interpretation to the constitutional requirement.  Balto. Transit Co. v. M.T.A., 232 Md. 509, 194 A. 2d 643 (1963); Everstine, Titles of Legislative Acts, 9 Md. Law Rev. 197. In the M.T.A. case, the title of the Act creating the Metropolitan Transit Authority was challenged because the title did not refer to the seat-tax fee described in the Act.  We rejected the  [**686]  contention, holding that the seat-tax fee was one of the means of effectuating the purpose of the Act and that it need not be mentioned in the title.  To the same effect see Allied American Co. v. Comm'r., 219 Md. 607, 150 A. 2d 421 (1959); Leonardo v. County Comm., 214 Md. 287, 134 A. 2d 284 (1957).
In Baltimore City v. Reitz, 50 Md. 574 (1879), quoted with approval in Hitchins v. Cumberland, 177 Md. 72, 80, 8 A. 2d 626 (1939), the basic principle was stated (50 Md. at p. 579): "*** If several sections of the law refer to and are germane to [***27]  the same subject-matter, which is described in its title, it is considered as embracing but a single subject, and as satisfying the requirements of the Constitution in this respect.  * * *" And, in reply to an argument that one section of the law was discordant and dissimilar to another, the Court further said (at p. 581): "*** Had it been enacted as a separate law, its validity could not be denied.  If the two sections are not so discordant, that they would be effective and valid as separate laws, why can they not be embraced in the same Act * * *".
Sutherland, in his treatise on statutory construction, states that: "Where numerous provisions are necessary to effectuate 

 [*413]  the main purpose of legislation, it may not be urged against the statute's validity that other ends also are served, if all the provisions are germane to the general subject." 1 Sutherland, Statutory Construction (3rd ed.), sec. 1713.  See, idem, secs. 1707, 1710, 1711 and 1712.  See also Rhyne, Municipal Law, pp. 227-228.
As we have seen, the fixing of zoning classifications for newly annexed land is a proper condition and circumstance of annexation, and thus it is germane to the subject.  [***28]  This being so, its inclusion in Resolution No. 20, without specific reference to it in the title, was proper.
The appellants claim as their final reason for the invalidity of Resolution No. 20 that no proper public notice of the R-2 zoning classification of the Pons-Kunkel property was contained in the resolution.  This contention is without merit.  As noted above, the public notice of the hearing before the Town Planning Commission stated that the Pons-Kunkel tract would be zoned R-1, but at the public hearing the owners of the property requested the Planning Commission to recommend an R-2 classification to the Town Commissioners.  The Planning Commission did recommend an R-2 classification and the Town Commissioners accepted the recommendation. In the notices of the public hearing before the Town Commissioners on Resolution No. 20 an R-2 classification of the Pons-Kunkel property was proposed upon annexation.
It was the function of the Planning Commission (and not of their consultant) to advise the Town Commissioners in regard to zoning. St. Mark's, etc. Church v. Doub, 219 Md. 387, 149 A. 2d 779 (1959); Hewitt v. Baltimore County, 220 Md. 48, 151 A. 2d 144 (1959). We [***29]  stated in the Doub case that a zoning commissioner could properly change his recommendation, after public notice and a hearing, before the recommendation was made to the county commissioners, and that a further public notice and hearing were not required.  In the case before us the Planning Commission did not "change" its recommendation after the public hearing, since it had not yet made a recommendation to the Town Commissioners.  Since the Town Commissioners accepted the recommendation when made and their notices of the hearing before them did contain mention of 

 [*414]  the R-2 classification proposed for the Pons-Kunkel property, the public was adequately notified as to the Commissioners' intention.  Cf. Bishop v. Bd. of Co. Commissioners, 230 Md. 494, 187 A. 2d 851 (1963); Cassidy v. Board of Appeals, 218 Md. 418, 146 A. 2d 896 (1958).
 [**687]  III
The next contention of the appellants is that comity and the Maryland planning statute prohibit evasion of the Harford County Master Plan as interpreted by the Circuit Court for Harford County in the Worthington case by the device of annexing the Durham-Julio property to Bel Air.  They argue that Code (1957), Art.  [***30]  66B, sec. 16, makes "it obligatory that towns and counties honor and respect the development and land use of their neighbors." Although we do not agree with the appellants' interpretation of sec. 16, since it relates only to the preparation of a master plan by a municipal planning commission, we do agree with the general proposition that a municipality when it zones its territory should take into consideration the character of the areas immediately surrounding its borders. However, the appellants would have this Court adopt a much more demanding rule.  It is their contention that since the effect of the decision in the Worthington case was to prohibit the construction of a shopping center on the Durham-Julio tract while it remained in Harford County under the county's Master Plan, the town of Bel Air after annexation of the land could not allow such construction.  This theory would require a municipality not only to take account of the character of the area surrounding its borders but would require a municipality to abide by a zoning ordinance (as judicially interpreted) of another jurisdiction.  As we have seen, a municipality with an authorized planning commission has exclusive [***31]  authority to zone newly annexed areas, but the theory of the appellants would render this authority nugatory in many cases.  The short answer to appellants' contention is that the Harford County Master Plan does not "regulate" zoning within the town of Bel Air.
Considering the character of the area annexed, the Durham-Julio property and the two small properties annexed were zoned commercial in the county, and they were assigned this classification upon annexation. The question as to whether a shopping 

 [*415]  center is a permitted use under the town's zoning classification must await the application for a permit to build such.  At the time of the decision of the court below no such application had been made and the court rightfully declined to make a ruling prematurely.  Therefore that question is not properly before this Court.  We are simply holding that the mere existence of the Harford County Master Plan and the mere circumstance of its interpretation by the Circuit Court for Harford County does not prevent the town of Bel Air, after considering the character of the land surrounding its borders, from deciding that a shopping center is a proper use of the area annexed.
As [***32]  to the cases relied on by the appellants, such as Borough of Cresskill v. Borough of Dumont, 104 A. 2d 441 (N. J. 1954), we do not read them as standing for the proposition advanced by the appellants.  The Cresskill case involved four adjoining boroughs in a highly industrialized section of New Jersey where one built up area merged into another.  The Court gave some indication that its decision might have been different in a case "where there are large undeveloped areas at the borders of two contiguous towns." (p. 445).
As the situation stands today, we do not think the zoning of the Durham-Julio tract as B-3 by the town was unreasonable considering the character of the land adjoining it in the county.
IV
The final contention of the appellants is that both Ordinance No. 157 and Resolution No. 20 are invalid because, they claim, they are based on contracts and are special interest legislation, and further, because the property owners reserved the right to withdraw their consent to annexation during the pendency of the proceedings.
Assuming without deciding that the rule against zoning by contract is applicable to  [**688]  initial zoning of newly annexed property, we do [***33]  not believe that the circumstances before us demonstrate such an illegality.  The appellants base their argument here on speculation, not fact.  There is no evidence supporting the appellants' assertion that the property owners and the town of Bel Air entered into any agreement in regard to the zoning 

 [*416]  of their respective properties.  The most that can be extracted from the record is that the property owners let their desires in regard to zoning be known and that the town fulfilled these desires.  Ordinance No. 157 makes no reference to any agreement and cannot be termed special interest legislation since it applies to any property which is proposed to be annexed. Nor does Resolution No. 20 make any reference to any agreement, or state any conditions to the annexation or zoning.
Although the petition for annexation did contain a provision that the property owners could withdraw their consent to annexation prior to its completion, it would seem that this right would be theirs regardless of such a provision.  Resolution No. 20 contained no reference to this "condition".  The appellants assert that "the basic deal appears to have been that the Julios would get the otherwise [***34]  unavailable but essential sewerage for their complex of stores, while the town hoped to get expanded borders, taxable base and someone to help pay for the very expensive Area 6 sewerage facilities." But there is no indication in Resolution No. 20 that annexation or zoning is conditioned on such sharing of costs.  As previously noted, the town, by a resolution passed in 1957, has required that a property owner consent to annexation in order to receive sewer service from the town.
We think the case before us presents no problem of zoning by contract, since the legislative body of Bel Air has made no provision in Ordinance No. 157 or Resolution No. 20 conditioning their action in zoning on annexation upon any acts of the property owners.  Pressman v. Baltimore, 222 Md. 330, 160 A. 2d 379 (1960).
We think the decree appealed from must be affirmed.  In view of our disposition of the case, we need not consider the appellees' contention that the appellants did not have standing to bring this suit.
Decree affirmed; appellants to pay the costs.  

120 of 138 DOCUMENTS 

TUCKER v. STATE 

No. 146, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 422; 206 A.2d 691; 1965 Md. LEXIS 738 

February 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment under the fifth count of Indictment No. 332 reversed; judgments under the first and third counts affirmed. 

HEADNOTES:

Criminal Law -- Where Witness Originally Was Non-Committal On Appellant's Complicity In Crimes Charged, But After Another Witness' Testimony Established True Facts He Was Recalled At His Own Request And Unequivocally Testified That Appellant Was His Accomplice, His Corroborated Testimony Was Not So Contradictory Within The Meaning Of Kucharczyk v. State That It Had No Probative Force.
Criminal Law -- Evidence -- Appellant's Counsel, During Oral Argument Of Appeal, Sought To Present Accomplice's Petition For Writ Of Habeas Corpus -- Petition Was Not Part Of Record And Was Not Properly Before Court -- Even If Properly Included In Record, Confession Alleged To Be Involuntary In Petition Was Admitted Without Objection Below And Objection Cannot Be Made For First Time Upon Appeal.
Criminal Law -- Court Rejected Appellant's Contention That Prosecution Witness Had Guilty Knowledge Of Crime And Would Have Been Indictable As Co-Defendant For Receiving Stolen Goods, Therefore Appellant's Conviction  [***2]   Should Not Have Been Based On Her Testimony -- Appellant Was Acquitted Of Receiving Stolen Goods And Witness' Testimony Would Not Have Required Finding Her An Accomplice To Crimes Of Which Appellant Was Guilty -- Even If She Had Been An Accomplice, There Was Ample Physical Evidence Corroborating Her Testimony.
Criminal Law -- Conviction Under Two Counts, Breaking And Stealing And Common Law Larceny -- Both Counts Depended On Same Alleged Acts -- Conviction On Both Held Improper.  

SYLLABUS:

Charles Stanley Tucker was found guilty under three counts of a six count indictment, by the trial court, sitting without a jury, of storehouse breaking over one hundred dollars, storehouse breaking and stealing five dollars or more and common-law larceny, and from the judgments entered thereon, he appeals.  

COUNSEL:
Solomon Liss, with whom were Lee N. Sachs and Fred London on the brief, for appellant.
R. Randolph Victor, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Julius A. Romano, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

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

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*423]   [**692]  Judge Grady, sitting without a jury, in the Criminal Court of Baltimore, found the appellant guilty on three counts of a six count indictment. The three counts were: storehouse breaking over one hundred dollars; storehouse breaking and stealing five dollars or more, and common-law larceny. The appellant has appealed the judgments entered on those counts.  There were two State's witnesses, the co-defendant, Spencer, who had entered a plea of guilty, and Gloria Henry.  In Spencer's original testimony, he was vague and non-committal on the question of the appellant's complicity in the crimes, and named Charles Eugene Jackson as his accomplice. Spencer stated that fifths, pints and miniatures of whiskey, stolen on the night of the theft, were taken to the home of Gloria Henry.  Thereafter, Gloria Henry testified that the appellant accompanied Spencer when 

 [*424]  the whiskey was brought to her home.  After her  [**693]  testimony, Spencer, through his counsel, was recalled to the stand at his own request, and testified without [***4]  equivocation that the appellant was his accomplice. Spencer stated that his decision to name the appellant was largely due to the testimony of Gloria Henry which had established the true facts.
Appellant's first contention on this appeal is that the testimony of Spencer was so contradictory as not to be worthy of belief, and therefore, the trial judge could not properly rely upon such testimony in reaching his finding of guilty.  The appellant relies principally upon Kucharczyk v. State, 235 Md. 334, 201 A. 2d 683 (1964) and the cases cited therein.  In Kucharczyk there was only one witness produced by the State whose testimony, if believed, would have established the corpus delicti. That witness was the victim, a mentally deficient boy of 16, who denied that the defendant had committed unnatural and perverted sex acts upon him and then asserted that the defendant had in fact committed these acts.  The victim's testimony was contradictory in other respects relating to the details of the crime.
We are convinced that the testimony of Spencer was not so contradictory within the meaning of Kucharczyk that it had no probative force.  At no time did Spencer contradict himself [***5]  on the details of the crime as was the case in Kucharczyk.  In fact, Spencer's testimony, that the fruits of the crime were taken to the home of Gloria Henry, was corroborated by Gloria Henry when she was called to the stand.  It was Gloria Henry's corroboration of those details and her further testimony that at that time the appellant accompanied Spencer, which led to Spencer's subsequent testimony that appellant was his accomplice.
In Kucharczyk we said: "If there had been other witnesses whose testimony sufficiently established the corpus delicti, the contradictions in the prosecuting witness' testimony would not necessarily be cause for reversal." 235 Md. at 338. We think that principle is applicable here in respect of Gloria Henry's testimony.
A copy of a petition for writ of habeas corpus by Spencer, 

 [*425]  filed August 10, 1964, in the Criminal Court of Baltimore, was presented to this Court through appellant's counsel during oral argument. This petition is not a part of the record in this case and is not properly before this Court.  Maryland Rule 826 c.  In any event, the record does not show any action of the lower court on this petition.  Had it been denied,  [***6]  this Court would have no jurisdiction to hear an appeal.  Code (1964 Supp.) Article 27, Section 645A(b).  Krs v. Director, 230 Md. 646, 187 A. 2d 871 (1963); Cumberland v. Warden, 225 Md. 636, 171 A. 2d 709 (1961); Brady v. State, 222 Md. 442, 446-447, 160 A. 2d 912 (1960). Even had the contents of Spencer's petition been properly included in the record before us, both the appellant and Spencer were represented by counsel at the trial below, and the confession which Spencer alleges in his petition was involuntary, was admitted without objection.  An objection can not be made for the first time upon appeal.  Rule 885.  See also Capparella v. State, 235 Md. 204, 207, 201 A. 2d 362 (1964).
Appellant's third contention is that Gloria Henry's testimony showed that she had some guilty knowledge of the crime and therefore would have been indictable as a co-defendant for receiving stolen goods, in which case her testimony should not have formed the basis of appellant's conviction in this case.  The appellant has not pointed to any part of Gloria Henry's testimony which would have required the trial court to find that she was an accomplice to the crimes of which the appellant [***7]  was found guilty.  The appellant was acquitted of the count charging the receipt of stolen goods. While a defendant may not be convicted solely upon the uncorroborated testimony of an accomplice,  [**694]  Gregoire v. State, 211 Md. 514, 521, 128 A. 2d 243 (1957), even had Gloria Henry been an accomplice, there was ample other evidence, physical in nature, to corroborate her testimony.
The appellant was convicted of breaking and stealing under one count and common law larceny under another.  Both counts depended upon the same alleged acts and, as we have held, a conviction on both is improper.  Fabian v. State, 235 Md. 306, 313-14, 201 A. 2d 511 (1964); Young v. State, 220 Md. 95, 151 A. 2d 140 (1959). Since appellant was given a general sentence 

 [*426]  of four years which is less than the maximum under any of the three counts upon which he was found guilty, (a permissible, although not the better procedure, Vandegrift v. State, 226 Md. 38, 42, 171 A. 2d 713 (1961)) the judgment as to the larceny count will be reversed.  Fabian v. State, supra; Young v. State, supra.
Judgment under the fifth count of Indictment No. 332 reversed; judgments under the first  [***8]   and third counts affirmed.  

121 of 138 DOCUMENTS 

WALLER v. STATE 

No. 165, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 426; 206 A.2d 701; 1965 Md. LEXIS 739 

February 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Appeal from judgment entered on first assault and battery conviction dismissed; judgment entered on second assault and battery conviction affirmed.  

HEADNOTES:

Criminal Law -- Assault And Battery Conviction In Municipal Court Of Baltimore City -- None Of Situations Involved Which Would Permit Review By This Court, On Appeal From Criminal Court Of Baltimore, Of Case Tried There On Appeal From Municipal Court -- Appeal Dismissed -- No Reason Found To Treat Appeal As Application For Certiorari.
Assault and Battery -- Evidence Held Legally Sufficient To Permit Jury To Properly Return Verdict Of Guilty -- Positive Identification.  

SYLLABUS:

Melvin Douglas Waller was convicted of assault and battery in the Municipal Court of Baltimore City.  On appeal to the Criminal Court of Baltimore, the charge was tried de novo jointly with a similar offense under an indictment, and from the judgments entered upon jury verdicts of guilty, the defendant appeals.  

COUNSEL:
Submitted on brief by W. Emerson Brown, Jr., Llewellyn W. Woolford and Brown, Allen, Murphy & Russell for the appellant.
Submitted on brief by Thomas B.  [***2]   Finan, Attorney General, Loring E. Hawes, Assistant Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Edward G. Wyatt, Assistant State's Attorney, for the appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Keating, J., Associate Judge of the Second Judicial Circuit, specially assigned.  Horney, J., delivered the opinion of the Court.  

OPINIONBY:
HORNEY 

OPINION:

 [*427]   [**702]  The appellant was convicted by the Municipal Court of Baltimore City of an assault and battery (herein called "first") on a sleeping female patient after he had entered a hospital at an early morning hour under the pretense of locating the accident room and was sentenced to a term of three years.  On appeal to the Criminal Court of Baltimore, this charge was tried de novo jointly with a similar offense under an indictment charging the appellant with assault and battery (herein called "second") on another female patient.  The appeal to this Court is from the judgment entered on a verdict of guilty in each case.  Concurrent sentences of not more than three years in the Institution for Men were imposed by the lower court.
All of the questions presented [***3]  by appellate counsel on behalf of the appellant as well as those he incorrectly undertook to raise himself by way of "questions [he] would like the Court of Appeals to consider for [him]" relate to the sufficiency of the evidence to sustain the convictions.
Since the first assault and battery conviction does not involve any of the situations specifically set forth in Code (1964 Cum. Supp.), Art. 5, § §  12 and 12A(1)-(6), permitting review by us of appeals from the Criminal Court of Baltimore tried there on appeal from the Municipal Court of Baltimore City, this 

 [*428]  appeal insofar as it relates to the conviction for the first assault and battery must be dismissed.  Moreover, since it is apparent that the questions raised here do not render it desirable and in the public interest that the first assault and battery conviction should be reviewed, the appeal from that conviction will not be treated as an application for certiorari pursuant to the provisions of Code (1964 Cum. Supp.), Art. 5, §  21.  But cf. Moulden v. State, 217 Md. 351, 142 A. 2d 595 (1958). Even if a review of the first assault and battery conviction were permissible, the result would not be different [***4]  in light of the evidence presented by the State.
As to the second assault and battery conviction, there was also legally sufficient  [**703]  evidence on which the jury could have properly based a verdict of guilty beyond a reasonable doubt.  Wright v. State, 222 Md. 242, 159 A. 2d 636 (1960), cert. den. 364 U.S. 920 (1960). The appellant, having been found under a bed by a hospital employee, was positively identified by an eyewitness, who shared the same room with the victim, as the person who committed the assault and battery.  This was enough to support the verdict of the jury.  Coates v. State, 232 Md. 72, 191 A. 2d 579 (1963).
Appeal from judgment entered on first assault and battery conviction dismissed; judgment entered on second assault and battery conviction affirmed.  

122 of 138 DOCUMENTS 

MYERS v. STATE 

No. 140, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 632; 206 A.2d 704; 1965 Md. LEXIS 773 

February 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Claim Of Self Defense Not Asserted Below.
Evidence -- Inconsistencies In Testimony Of Witnesses Only Go To Weight.
Deadly Weapons -- Fully Loaded Gun Incapable Of Firing Is Still One.
Robbery with a Dangerous or Deadly Weapon -- Evidence Was Sufficient -- Secret Intention Of Appellant Not To Perform The Threatened Act Or Even His Undisclosed Inability To Perform Would Be Immaterial.  

SYLLABUS:

Melvin Albert Myers was convicted of common law assault, larceny, and robbery with a dangerous and deadly weapon and from the judgment entered thereon, he appeals.  

COUNSEL:
Melvin Rankin and Robert Eugene Smith, with whom was Burton W. Sandler on the brief, for appellant.
John W. Sause, Jr., Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Stanley S. Cohen, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Marbury, Sybert and Oppenheimer, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*633]   [**705]  Melvin [***2]  Albert Myers, appellant, was found guilty by Judge Grady in the Criminal Court of Baltimore of common law assault, larceny, and robbery with a dangerous and deadly weapon. He was sentenced to the Maryland Penitentiary for fourteen years.
On January 11, 1964, at 10:00 a.m., Concetta Butler opened Cicero's Tavern.  A half hour later, Myers came in and ordered some drinks.  At 11:30 that morning Mrs. Butler left the bar and walked to her car parked on the street.  As she started for the driver's side of the car, Myers walked up to her and she felt a jab in her ribs.  She looked down to see a pistol in his hand, and tried to attract some attention when appellant told her to give him her purse or he would shoot.  She heard a click whereupon she gave him the purse, and he ran.  Meanwhile, Paul Marzullo was looking out the window of his nearby bar observing the above happenings.  When he saw the gun, he alerted Officer Dignazio, a plainclothes policeman. The officer shouted for Myers to stop, firing one shot over his head.  The appellant stopped, turned, pointed the gun at the officer and again started running.  He slipped and fell rounding a corner, where the officer apprehended him.  [***3]  
On appeal, Myers claims that the evidence was insufficient to convict him of the crimes of assault and robbery with a dangerous weapon. This argument is based upon the premise that his conduct which gave rise to his convictions of assaulting the prosecutrix and the police officer could be viewed as a matter of self defense on his part to stop being shot by the officer.  The appellant's testimony categorically denied that he had pointed a gun at anyone or that he had any connection with the gun introduced in evidence.  There was no testimony whatsoever of self defense, which is an affirmative defense.  Furthermore, the officer had verbally identified himself as a policeman and had ordered the appellant to halt before firing the shot over his head.  Guerriero v. State, 213 Md. 545, 132 A. 2d 466; Nixon v. State, 204 Md. 475, 105 A. 2d 243.
In appellant's contention that there was insufficient evidence to convict him, he cites inconsistencies which he says should 

 [*634]  have created a reasonable doubt in the mind of the trier of the facts.  We have held in the past that inconsistencies in the testimony of witnesses go only to the weight of the evidence.  Curry v. State [***4]  , 235 Md. 378, 201 A. 2d 792; Wiggins v. State, 235 Md. 97, 200 A. 2d 683.
The ballistics report as testified to by Officer Dignazio showed that the gun was incapable of firing because the firing pin was sheared off and it would not hit the primer.  Thus, for this reason, the appellant claimed that it could not be a dangerous and deadly weapon. We do not agree.  A gun fully loaded, as shown by the uncontradicted testimony, but not firable is a deadly weapon. Here, there was the intent to rob by means of intimidation produced by the use of a weapon, coupled with the apparent ability to execute the implied threat to use the weapon if resistance was offered.  A secret intention of the appellant not to perform the threatened act or even his undisclosed inability to perform it would be immaterial.  Jackson v. State, 231 Md. 591, 191 A. 2d 432; Hayes v. State, 211 Md. 111, 126 A. 2d 576.
Judgment affirmed.  

123 of 138 DOCUMENTS 

WILSON v. STATE 

No. 176, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 634; 206 A.2d 698; 1965 Md. LEXIS 774 

February 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Evidence -- Burglary Case -- Was Sufficient -- Credibility Of Witnesses Was For Trier Of Facts.  

SYLLABUS:

Percy Wilson was convicted of burglary and from the judgment entered thereon, he appeals.  

COUNSEL:
Howard M. Heneson, with whom was Roland Walker on the brief, for appellant.
Robert J. Martineau, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, William J. O'Donnell and Charles E. Moylan, Jr., State's Attorney and Assistant State's Attorney, respectively, for Baltimore City on the brief, for appellee.  

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

OPINIONBY:
PER CURIAM 

OPINION:

 [*635]   [**699]  The sole question raised on this appeal is whether the defendant was sufficiently identified to prove that he had participated in the burglary of which he was convicted.  The contention is that the testimony of the eyewitnesses (two teen-age girls) was so uncertain and contradictory as to be unworthy of belief.
Both eyewitnesses had seen two men -- one was white and the other colored -- enter the burglarized premises, but they differed [***2]  as to which one entered first.  A neighbor had seen a colored man and two white men drive up in a red and white truck.  The police, who had been alerted, subsequently stopped a vehicle (answering the description of the one they were looking for) occupied by a white man and a colored man and arrested both of them.  One of them was the defendant.
One of the teen-age witnesses, although she could not recognize the defendant at a police lineup, positively identified him at the trial, when for the first time she had a "good look at his face." The other teen-age witness, after identifying the defendant at an earlier lineup, was undecided at a second lineup between the defendant and another man who was wearing a hat similar to the one worn by one of the burglars. At the trial, however, the witness positively identified the defendant and expressed certainty that the man in the second lineup (wearing the hat that caught her attention) was not involved in the burglary.
At the close of the trial a statement of the codefendant was accepted as evidence.  Therein he admitted stealing a red and white vehicle and committing the burglary, but stated that he 

 [*636]  abandoned the vehicle and [***3]  was subsequently picked up by the defendant while hitchhiking shortly before they were apprehended.
Even if there was some inconsistency in the testimony of the eyewitnesses as to which of the two burglars first entered the house, it was more apparent than real.  The credibility of the witnesses was for the trier of facts to determine.  Wiggins v. State, 235 Md. 97. And we cannot say that the trial judge was clearly wrong in choosing to believe the testimony of the eyewitnesses and to disbelieve the statement of the admitted burglar which sought to exonerate the defendant.  Spencer v. State, 235 Md. 129.
Judgment affirmed.  

124 of 138 DOCUMENTS 

MATTHEWS v. STATE 

No. 141, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 384; 206 A.2d 714; 1965 Md. LEXIS 733 

February 3, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments under Indictment No. 1 charging grand larceny of Walter Hall check, and under Indictment No. 2 charging petty larceny of Clara Hall check reversed and new trial ordered.  Judgment under Indictment No. 3 charging petty larceny of Blumberg check affirmed.  

HEADNOTES:

Arrest -- Sole Fact That It May Have Been Unlawful Does Not Affect Court's Jurisdiction, Is No Ground For Quashing Indictment And Does Not Preclude Trial And Conviction.
Arrest -- Even Assuming To Be Illegal, No Fruits Of Arrest Were Obtained From Defendant And Used At His Trial.  In the present criminal case the Court held that even if it assumed the defendant's arrest to be illegal, this would not have entitled him to a directed verdict because there were no fruits of the arrest obtained from the defendant and used at his trial.  He made no incriminating statement, and the only tangible property offered or received into evidence was three brown envelopes containing checks which had been thrown away and abandoned, and not obtained as a result of the arrest. There is nothing unlawful in a police officer's retrieving abandoned property and [***2]  the State's making use of this abandoned property at the trial.
Accomplices -- Defined -- Evidence Permitted Determination That Defendant Was Accomplice In This Larceny Case.  To be an accomplice a person must participate in the commission of a crime knowingly, voluntarily and with common criminal intent with the principal offender, or he must in some way advocate or encourage the commission of the crime.  In the present case, where there was testimony that the defendant and a codefendant had entered an apartment lobby together, that the defendant acted as a "lookout" to prevent detection while the codefendant broke into a mail box and removed a check therefrom and that together they walked rapidly out of the lobby, the evidence was held clearly sufficient to permit a determination beyond a reasonable doubt that the defendant had participated in the larceny to an extent necessary to meet the above test.
Criminal Law -- Thefts From Mail Box -- No Evidence Linking Defendant With These Particular Thefts -- Guilt Ordinarily Cannot Be Imputed To Companion Of Unexplained Possessor Of Recently Stolen Goods Without Other Supporting Evidence, Even Though Both May Be Observed Committing  [***3]   Similar Crime At Different Time Or Place.
Preliminary Hearings -- Not A Crucial Stage Requiring Advice Of Counsel When Pleas Of Not Guilty Are Entered And No Incriminating Statements Are Made Or Used At Subsequent Trial -- Point Not Raised Below -- Record Here Did Not Support Claim Of Lack Of Counsel At Time Of Arraignment.
Criminal Law -- Contradictory Statements Of Witnesses -- For Trier Of Facts To Determine Which To Believe -- Trivial Detail In Present Case.
Criminal Law -- State Not Required To Call All Possible Witnesses With Some Relevant Knowledge -- Existence Of Witness Here Well Known To Defendant -- Point Not Raised Below.  

SYLLABUS:

Clifton Charles Matthews was convicted of two charges of petty larceny, and one charge of grand larceny, by the trial court, sitting without a jury, and from the judgments entered thereon, he appeals.  

COUNSEL:
Tucker R. Dearing for the appellant.
David T. Mason, 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:
Hammond, Horney, Marbury and Barnes,  [***4]  JJ., and Digges, J., Chief Judge of the Seventh Judicial Circuit, specially assigned.  Digges, J., by special assignment, delivered the opinion of the Court.  

OPINIONBY:
DIGGES 

OPINION:

 [*386]   [**715]  The defendant-appellant Matthews was convicted by Judge Grady sitting without a jury under three separate indictments, two of petty larceny and one of grand larceny. On appeal Matthews argues that his motion for judgment of acquittal should have been granted because (i) his arrest was illegal; (ii) there was no legally sufficient evidence to support a finding of guilt; and (iii) additional contentions are submitted pro se.
The testimony shows that at about 10:00 a.m. on January 3, 1964, Martin Carrington, an employee of the Baltimore Housing Authority, was "staked out" or took a position in an apartment where he could observe through louvers in the door the mail boxes in the lobby of the apartment building located in a public housing project at 26 South Exeter Street, Baltimore.  While Mr. Carrington had the mailboxes under surveillance he observed appellant Matthews and a codefendant, Solomon, enter the apartment building lobby by way of its Watson Street entrance, cross the lobby [***5]  to the Lombard Street entrance, and look out.  Matthews continued to look out the Lombard Street entrance while Solomon went to the locked mailboxes and using an instrument forced one of them open.  The contents of the box were taken out and both men then hurriedly left the lobby by way of the Watson Street entrance. Mr. Carrington, after observing that mailbox 8-H had been forced open, followed Matthews and Solomon until he met police officer Cordwell and informed him of his observations concerning the two men and the broken mailbox.
Upon the police officer approaching the two men, Solomon, who had a screwdriver in his hand, ran.  After arresting the appellant and placing him in the custody of Mr. Carrington the officer pursued Solomon.  During the chase the officer observed Solomon throw some brown envelopes under a parked automobile.  These envelopes were recovered and found to contain United States Treasury Social Security checks in the amounts of $ 103.00 and $ 51.50 payable to Walter L. Hall and Clara M. Hall, respectively, residents of an apartment located at 127 South Exeter Street, and whose mailbox 9-K had been forcibly 

 [*387]  opened.  Another envelope recovered contained [***6]  a United States Treasury Social Security check in the amount of $ 68.30 payable to William Blumberg which had been taken from his mailbox 8-H located in the lobby of the apartment house at 26 South Exeter Street.
Both appellant and Solomon denied to the police any knowledge of or their involvement in the larceny of these checks.
 [**716]  (i) The Arrest
Relying on the contention that his arrest was illegal because neither was a misdemeanor committed in the presence of the police officer, nor were there reasonable grounds for the police officer to suspect a felony had been committed by him (Mason v. Wrightson, 205 Md. 481, 486, 109 A. 2d 128), appellant argues that his motion for a directed verdict of acquittal should have been granted.
The simple answer to this result contended for is that the sole fact that an arrest may have been unlawful does not affect the jurisdiction of the court, is not a ground for quashing the indictment and does not preclude trial and conviction for the offense.  Jackson v. Warden, 235 Md. 689, 690, 202 A. 2d 757; Ledbetter v. Warden, 234 Md. 643, 644, 645, 200 A. 2d 81; Piles v. State, 233 Md. 487, 489, 197 A. 2d 238; Oden v. State [***7]  , 222 Md. 325, 328, 159 A. 2d 867; Wright v. State, 222 Md. 242, 245, 159 A. 2d 636.
Appellant made no incriminating statement and the only tangible property offered or received in evidence was not taken from appellant and was not obtained as a result of his arrest. The sole tangible evidence received was the three brown envelopes containing the three United States Treasury checks recovered from under the automobile not owned by either Matthews or Solomon parked on a public street after the officer observed the envelopes being thrown there and abandoned by Solomon during the chase.
Even assuming the checks while physically in the possession of Solomon were constructively in the possession of Matthews, there was no seizure of them from either appellant or codefendant Solomon.  This is so because in a very real sense the checks were thrown away and therefore abandoned. There is 

 [*388]  nothing unlawful in the police officer's retrieving abandoned property and the State's making use of this abandoned property at the trial.  Abel v. United States, 362 U.S. 217, 241 (1960), Hester v. United States, 265 U.S. 57, 58 (1924).
Therefore, assuming an illegal arrest, this fact [***8]  can give appellant neither comfort nor aid in his contention, since there were no fruits of the arrest, obtained from appellant used at his trial.  The use of such evidence at the trial is a prerequisite to a complaint successfully attacking a conviction resulting from a prosecution initiated by an illegal arrest. Carter and Gray v. State, 236 Md. 450, 455, 204 A. 2d 322; Jackson v. Warden, supra; Curry v. State, 235 Md. 378, 381, 201 A. 2d 792; Young v. Warden, 233 Md. 596, 601, 195 A. 2d 713; Piles v. State, supra.
(ii) Sufficiency of the Evidence
(a) The Blumberg Theft:
Appellant contends that under the evidence produced the State failed in its efforts to show that he was an accomplice to the criminal acts of Solomon but at most there was only a showing that he had knowledge of the commission of the crime.
It is true that "to be an accomplice a person must participate in the commission of a crime knowingly, voluntarily, and with common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime." Watson v. State, 208 Md. 210, 219, 117 A. 2d 549. See also Anello v. State, 201 Md. 164, 168, 93 A. 2d [***9]  71.
Mr. Carrington's testimony that Matthews and Solomon entered the apartment lobby together, and, with Matthews acting as "lookout" to prevent detection, Solomon broke the mail box, removed the check and together they walked rapidly out of the apartment lobby was clearly sufficient to permit a determination beyond a reasonable doubt that Matthews participated in the larceny from the mail boxes to an extent necessary to meet this test required by Watson v. State, supra. Appellant's  [**717]  motion for judgment of acquittal based on lack of sufficient evidence was properly denied.
(b) The Hall Thefts:
Assuming that the evidence would justify an inference that 

 [*389]  there had been thefts of property from mail box 9-K belonging to Walter and Clara Hall (though we express no opinion as to whether the looting of a single mail box containing the separate property of two individuals constitutes one or two criminal offenses) the record is nonetheless devoid of any facts linking this appellant with those thefts. The only testimony shedding any light on when the Hall checks were taken is that of Mr. Hall when he testified that his Social Security checks usually arrived in his [***10]  mail box "anywhere between the 1st and 3rd" of each month.  But there is no evidence that Matthews was in the company of the codefendant Solomon (who was found to have the Hall checks in his possession on the morning of January 3rd) prior to his being observed by the witness Carrington when the Blumberg theft took place at 26 South Exeter Street.  In fact, there is no evidence that they even knew each other prior to that time; nor that Matthews was in the vicinity of the apartment building where the Hall mail box was located at any time when the thefts of the Hall checks could have taken place.  Guilt inferred only from the fact of the unexplained possession of recently stolen goods -- Stapf v. State, 230 Md. 106, 108, 185 A. 2d 496; Byrd v. State, 229 Md. 148, 150, 182 A. 2d 47; Dyson v. State, 226 Md. 18, 21, 171 A. 2d 505; Lewis v. State, 225 Md. 474, 475, 171 A. 2d 244; Booker v. State, 225 Md. 183, 186, 170 A. 2d 203 -- ordinarily cannot be imputed to a companion of the possessor without other supporting evidence; even though both may be observed committing a similar crime at a different time or place.  Appellant's motions for judgment of acquittal on the grounds [***11]  that there was no legally sufficient evidence to sustain the two convictions should have been granted.
(iii) Pro Se Contentions of Appellant
Appellant -- not by his counsel -- presents the following additional arguments as to why the judgments should be reversed: (a) Appellant was not represented by counsel at the preliminary hearing or at the arraignment; (b) Contradictory statements were made by two state witnesses while testifying; (c) Evidence was suppressed by the State.
(a) Appellant says he did not have counsel at the preliminary 

 [*390]  hearing.  The record is silent on this point, and the question was not raised in the trial court.  Maryland Rule 885.  Ordinarily under the Maryland practice this is not a crucial stage of the prosecution requiring the advice of counsel when pleas of not guilty are entered and no incriminating statements are made or used at the subequent trial of the case.  Thus, on the record before us, this allegation would appear to fall within the pattern of Arrington v. Warden, 232 Md. 672, 195 A. 2d 38. Appellant's complaint that he did not have counsel at the time of arraignment is not supported by the record, which plainly shows that his counsel [***12]  who had previously been appointed was present and answered for the appellant when he first pleaded to the indictment.
(b) Appellant next contends that contradictory estimates of the distance between the appellant and two witnesses at the time he was first observed by the police officer were made during the trial by the police officer and Mr. Carrington.  Under our procedure the trier of the facts determines which of two contradictory statements of witnesses was to be believed, if it became necessary to accurately determine this apparently trivial detail as to distance.
(c) Lastly, appellant says that since there was another witness on the scene when he and Solomon were apprehended by the police officer, this witness should have been called to testify.  The State's Attorney is not required to call all possible witnesses  [**718]  having some relevant knowledge about the occurrence, and the existence of this witness was well known to appellant.  In any event the question was not raised in the trial court.  Maryland Rule 885.
Judgments under Indictment No. 1 charging grand larceny of Walter Hall check, and under Indictment No. 2 charging petty larceny of Clara Hall check reversed  [***13]   and new trial ordered.
Judgment under Indictment No. 3 charging petty larceny of Blumberg check affirmed.  

125 of 138 DOCUMENTS 

HAWKINS v. STATE 

No. 154, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 395; 206 A.2d 557; 1965 Md. LEXIS 735 

February 3, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Arrest -- Legality Of -- Resisting Arrest -- Arrest Was Valid Here Where Officer Had Reasonable Cause To Believe A Felony Had Been Committed And That The Fleeing Appellant Committed It.  In the instant criminal case the appellant contended that he had a right to resist arrest by the police officer inasmuch as the officer had no valid cause to arrest him.  The Court held that the contention was unsound.  The arresting officer, who had been told by a motorist at three o'clock in the morning that a man was being robbed at the shoe store and had seen a man lying in the doorway of the store with his pockets turned inside out, had reasonable cause to believe a robbery -- a felony -- had been committed and, when appellant ran away when asked to come talk to the officer who was kneeling by the victim, he had reasonable cause to believe that the evasive one had committed the felony, and lawfully could have arrested him.  "Flight though not conclusive, is usually evidence of guilt."
Evidence -- Criminal Case -- Was Sufficient Here -- Identification Versus Alibi Testimony -- Credibility Of  [***2]   Witnesses Was For The Jury.  In the instant case the appellant, who was convicted of larceny of a pistol from a policeman and of assault with intent to murder the officer with the pistol, challenged the sufficiency of the evidence.  However, it was held that the evidence was sufficient to permit the conclusions the jury reached.  The policeman identified the appellant in a line-up and at the trial and there was corroborating testimony as to identity.  Appellant's mother offered the alibi that he was sleeping at her house when the crimes occurred but the credibility of the policeman's positive identification and of the corroborating witness, as compared to the alibi testimony of the mother, was for the jury to weigh and determine, and the appellant cannot justly complain that the jury did not believe his mother.  

SYLLABUS:

Vernon W. Hawkins was convicted by a jury of larceny of a pistol from a policeman and of assault with intent to murder the officer with the pistol, and from the judgment entered thereon, he appeals.  

COUNSEL:
William O. Goldstein, with whom was Roland Walker on the brief, for appellant.
Loring E. Hawes, Assistant Attorney General, with whom were Thomas  [***3]   B. Finan, Attorney General, Charles E. Moylan, Jr. and Donald Needle, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Carter, C. J., of the Second Judicial Circuit, specially assigned.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*396]   [**558]  Appellant was convicted by a jury of larceny of a pistol from 

 [*397]  a policeman and of assault with intent to murder the officer with the pistol. He challenges the legality of his arrest and the sufficiency of the evidence.
Officer Rowzee was at a call box on West Baltimore Street about three o'clock in the morning when the driver of a blue and white Mercury automobile shouted to him that a man was being robbed in the doorway of the shoe shop up the street. The officer went to the doorway and saw a man lying in it with his pockets turned inside out.  Another man, later identified as the appellant, was walking away from him and "had gone ten or fifteen feet" when the officer called to him to return.  Instead, the man "took off running." The officer with drawn revolver [***4]  pursued him and soon collared him.  A tussle ensued during which the appellant said, "You ain't taking me *** I have got three children," wrenched the revolver from the officer's hand and started to run.  After he had gone ten or fifteen feet, he turned and fired at the pursuing policeman and, soon thereafter, fired twice more.  Several other policemen had taken up the chase and they shot several times at the appellant.
The owner of a restaurant which the appellant frequented told the police that a man who was of the appellant's build and who had on clothing like that appellant was wearing and who "appeared to be Vernon Hawkins" had run around the corner and into the house, in which Hawkins lived, across the street from the restaurant. The police searched the house but could not find the appellant.  His father, his brother, and his wife told them he was not in the house.  A warrant was issued for the arrest of Hawkins for larceny and assault with intent to murder and he was arrested at his place of work the next day.
Ordinarily, the validity of the convictions would not be affected by whether the initial chase and seizure or the subsequent arrest were or were not legal, since [***5]  no evidence was seized or used against Hawkins as a result.  Here, however, the essence of appellant's first claim of error is that he had a right to resist seizure by Officer Rowzee inasmuch as the officer had no valid cause to arrest him.  We think the contention unsound.  Officer Rowzee, who had been told by the motorist at three o'clock in the morning that a man was being robbed at the shoe store and had seen a man lying in the doorway of the store with 

 [*398]  his pockets turned inside out, had reasonable cause to believe a robbery -- a felony, Hollohan v. State, 32 Md. 399, 400 -- had been committed and, when appellant ran away when asked to come talk to the officer who was kneeling by the victim, he had reasonable cause to believe that the evasive one had committed the felony, and lawfully could have arrested him.  "Flight, though not conclusive, is usually evidence of guilt." Price v. State, 227 Md. 28, 33; Tasco v. State, 223 Md. 503,  [**559]  cert. den. 365 U.S. 885.
There can be no real doubt that the evidence was sufficient to permit the conclusions the jury reached.  Officer Rowzee identified the appellant in a line-up and at the trial as the man [***6]  who had stolen his pistol and fired it at him at almost point-blank range.  There was corroboration as to identity in the testimony of the restaurant owner.  Appellant's mother offered the alibi that he was sleeping at her house when the crimes occurred but the credibility of Officer Rowzee's positive identification and of the restaurant owner's corroboration, as compared to the alibi testimony of the mother, was for the jury to weigh and determine, and the appellant cannot justly complain that the jury did not believe his mother.  Hursey, Jr. v. State, 233 Md. 243; Booker v. State, 225 Md. 183; Booth v. State, 225 Md. 71; Daniels v. State, 213 Md. 90.
Judgments affirmed.  

126 of 138 DOCUMENTS 

HILL v. STATE 

No. 144, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 630; 206 A.2d 677; 1965 Md. LEXIS 772 

February 3, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Narcotic Drugs -- Evidence Was Sufficient To Support Conviction Of Felonious Possession And Control -- Credibility Of Witnesses Was For Trier Of Fact.  

SYLLABUS:

Shirley E. Hill was convicted in a non-jury trial of felonious possession and control of a narcotic drug and from the judgment entered thereon, she appeals.  

COUNSEL:
Submitted by Michael F. Freedman and Stanley J. Schapiro for appellant.
Submitted by Thomas B. Finan, Attorney General, Franklin Goldstein, Assistant Attorney General, Charles E. Moylan, Jr. and George J. Helinski, State's Attorney and Deputy State's Attorney, respectively, for Baltimore City, for appellee.  

JUDGES:
Hammond, Horney, Marbury and Barnes, JJ., and Digges, C. J., of the Seventh Judicial Circuit, specially assigned.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*630]   [**677]  The appellant was indicted in two counts for felonious possession and control of a narcotic drug (heroin), was convicted in the Criminal Court of Baltimore by Judge Harris without a jury, and was duly sentenced.  The appellant contends before us that there was not sufficient evidence [***2]  to support her conviction.
Officer Bishop L. Robinson of the Baltimore City Police Department, 

 [*631]  after having received a telephone call that certain known users of drugs were then using drugs in an apartment, 1521 Edmondson Avenue, Baltimore, Maryland, proceeded to that address with two other officers.  They entered the apartment with the consent of the three occupants, including the appellant and, also with the consent of the occupants, searched the apartment. The search resulted in the discovery of a burnt bottom teaspoon and a bottle cap containing heroin. A hypodermic needle, two eye droppers and two needle holders were also found.  Officer Robinson testified that the spoon and bottle cap were significant because used as "cookers in the preparation of heroin".  After receiving permission from the appellant, Officer Robinson examined the arms of the appellant for needle marks and counted four fresh needle marks in the bend of her left arm.
The appellant denied that she was using dope herself but indicated that one of the other women had used it in her presence.  She testified that she had used narcotics several days before for the first time and that all four needle [***3]  marks on her arm were four days old.  She admitted that she knew where the narcotics paraphernalia were kept in the apartment.
 [**678]  The trial judge, in weighing the testimony accepted the testimony of Officer Robinson that the needle marks were "fresh" marks and the inferences legitimately drawn from this testimony.  He did not accept the testimony of the appellant to the contrary.  As the trier of fact he was entitled to do this.  The credibility of the witnesses was for his determination.
Judgment affirmed.  

127 of 138 DOCUMENTS 

MANNING v. STATE 

No. 352, September Term, 1963 

Court of Appeals of Maryland 

237 Md. 349; 206 A.2d 563; 1965 Md. LEXIS 728 

February 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order reversed, and case remanded for the entry of an order vacating the judgments and sentences of the Municipal Court of Baltimore City and the ordering of a new trial on the charges on which those judgments and sentences were based. 

HEADNOTES:

Criminal Law -- Counsel -- Waiver Of -- Rule As To -- No Waiver Here -- Lack Of Indigency Not Shown.  Presuming waiver from a silent record is impermissible.  The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.  Anything less is not waiver.  In the present criminal case the Court stated that the State had properly conceded that the right to counsel was not "completely and intelligently waived", and that the finding in a post conviction hearing of a lack of indigency at the time of the original trial could not be relied upon under the circumstances of this case.
Criminal Law -- Counsel -- Whether Charges Serious Enough To Require Representation As Constitutional Requisite -- Maryland Rule 719.  If the ruling in Gideon v. Wainwright, 372 U.S. 335, is [***2]  controlling to impose upon the State the federal constitutional requirement of representation by a lawyer, as the Court held that it was in this case, and if there is no affirmative and knowing waiver of the right, an accused must be represented by counsel, either privately secured or furnished by the State, in any case in which the possible punishment equals or exceeds, as in this case, the punishments specified in Maryland Rule 719, which are "*** death or imprisonment for a period of six months or more, or a fine of $ 500.00 or more, or both * * *".
Criminal Law -- Rule Of Gideon v. Wainwright, 372 U.S. 335, Making Absolute Right Of Accused In Serious State Prosecution To Have Counsel For His Defense -- Rule Held To Apply Retrospectively.  

SYLLABUS:

Albert Manning instituted a proceeding under the Post Conviction Procedure Act, and from an order denying relief, he applied for, and was granted, leave to appeal.  

COUNSEL:
Joseph S. Kaufman and Abraham L. Adler for the appellant.
Loring E. Hawes, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, William J. O'Donnell, State's Attorney for Baltimore City, and William T. S. Bricker, Assistant  [***3]   State's Attorney, on the brief, for the appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Carter, J., Chief Judge of the Second Judicial Circuit, specially assigned.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*350]   [**564]  At his trial on October 29, 1962, in the Municipal Court of Baltimore City (formerly a Magistrate's Court) the appellant Manning, neither having been advised of his right to counsel nor given the assistance of counsel, was convicted of various offenses and given terms of imprisonment totalling five years.  At the time of his trial the law, under Betts v. Brady, 316 U.S. 455, 86 L. Ed. 1595, was that the Sixth Amendment to the Constitution of the United States was not as such made binding on the states by the Fourteenth Amendment and that one accused by a state of serious crime had not necessarily been denied due process of law because he had not been represented at his trial by a lawyer.  Rather, held Betts, the test was whether the trial without counsel would have been "*** offensive to the common and fundamental ideas of fairness and right * * *."
On March 18, 1963, some five months after [***4]  the appellant had 

 [*351]  been convicted and had begun serving his sentences, the Supreme Court decided Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, in which it in terms overruled Betts v. Brady and, in effect, made absolute the right of an accused in a serious state prosecution to have counsel for his defense.  Because of the great probability that Gideon would control the contention of Manning, that for lack of counsel he had been denied due process at his trial, we granted his application for leave to appeal from the order of the Criminal Court of Baltimore passed April 30, 1963, refusing post conviction relief, and appointed counsel to prosecute the appeal.
Manning was tried in the Municipal Court of Baltimore City on charges of assault by stabbing one Gloria Tucker with a meat cleaver, assault upon each of two police officers, having on his person a dangerous and deadly weapon, and disorderly conduct.  He pleaded not guilty, but was found guilty by Judge Albert Blum on all charges and sentenced to two years on the stabbing charge, one year on each of the assault charges, one year on the concealed weapon charge, and sixty days for disorderly conduct.  The [***5]  sentences were imposed to run consecutively except for the sentence of sixty days which was suspended.
As is customary, no transcript was made of proceedings in the Municipal Court but both appellant's mother and Judge Blum testified before Judge Jones at the post conviction hearing in the Criminal Court of Baltimore that there was no discussion of counsel at the trial in the Municipal Court.  Judge Blum also said that he did not advise Manning of his right to counsel but did advise him of his right to elect to be tried before a jury in the Criminal Court of Baltimore, and that Manning waived a jury trial and elected to be tried by Judge Blum.
After his convictions Manning did not appeal to the Criminal Court of Baltimore, as the law gave him a right to do, and immediately began to serve the sentences he had received.
Judge Jones held that Maryland Rule 719, which requires that the accused shall be advised of his right to counsel and that the record must affirmatively show that he was so advised, does not apply to the Municipal Court and that under Maryland law there is no requirement that an accused must be furnished 

 [*352]  counsel in a criminal proceeding before a magistrate.  [***6]  She held further that there was nothing in the holding of Gideon to indicate that an accused cannot waive his right to counsel and "*** while Petitioner's formal education is limited his education in criminal  [**565]  procedure is broad," and by his elections to waive a jury trial and not to appeal, he waived his right to counsel which his previous experiences had taught him would be provided in the Criminal Court.  Judge Jones also found that Manning, who made forty dollars a week and had in his possession twenty-two dollars when he was arrested, had not shown he was an indigent person entitled to the appointment of counsel at state expense.
The State concedes, properly we think, that "*** the right to counsel here was not 'completely and intelligently waived' in accordance with the criteria of waiver set forth in the recent Supreme Court case of Carnley v. Cochran, 369 U.S. 506." In that case the Court said (p. 516 of 369 U.S.):

"Presuming waiver from a silent record is impermissible.  The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.  [***7]  Anything less is not waiver."
The State also agrees with our view that in light of the complete lack of discussion of counsel or of indigency before Judge Blum and the paucity of evidence on the point before Judge Jones at the post conviction hearing, the finding in that hearing of lack of indigency at the time of the original trial cannot be relied on, particularly in view of Manning's testimony that after he was arrested he called his grandmother to see about getting money to pay a lawyer but found she had no money.
There is no merit in the contention of the State that Gideon would not apply, in any event, because the charges against Manning were petty offenses not serious enough to require representation by counsel as a constitutional requisite.  The State relies on the distinction between petty offenses which do not constitutionally require trial by jury and traditionally more serious offenses which do.  State v. Glenn, 54 Md. 572; District of Columbia v. Clawans, 300 U.S. 617, 81 L. Ed. 843.

 [*353]  Wherever the line finally will be drawn, we have no doubt that the crimes with which Manning was charged would, if Gideon is applicable, constitutionally [***8]  require representation by a lawyer.  Upon request to the Judge in the Municipal Court, Manning would have been entitled to have his case sent to the Criminal Court of Baltimore for trial before a jury.  Following a similar provision in the federal criminal system, this Court, on August 7, 1963, promulgated Maryland Rule 719, effective three days thereafter, binding on the Circuit Courts of the Counties and the Supreme Bench and other Courts of Baltimore City, to provide that "if at any stage of the proceeding, the accused appears in court without counsel, the court shall advise him of his right to counsel" and unless he elects to proceed without counsel or is financially unable to obtain counsel "the court shall assign counsel to represent him if the offense charged is one for which the maximum punishment is death or imprisonment for a period of six months or more, or a fine of $ 500.00 or more, or both * * *" (with specified exceptions as to charges of desertion or non-support) and with the further proviso that the court may assign counsel in other cases if "*** the complexity of the case, the youth, inexperience and mental ability of the accused and any other relevant consideration"  [***9]  indicate that representation fairly is required.  In Taylor v. State, 230 Md. 1, we held the requirements of Rule 719 to be mandatory and, therefore, required to be complied with irrespective of the type of plea entered or the lack of an affirmative showing of prejudice to the accused.  We have no doubt that if Gideon controls to impose on the State the federal constitutional requirement of representation by a lawyer, the accused, unless he affirmatively and knowingly waives the right, must be represented by counsel, either privately secured or furnished by the State, in any case in which  [**566]  the possible punishment equals or exceeds, as in the charges here involved, the punishments specified in Rule 719.  Cf. White v. Maryland, 373 U.S. 59, 10 L. Ed. 2d 193.
We turn to the question of whether the rule of Gideon applies to this case, in which the accused was tried and sentenced at a time when, under Betts, there was not a constitutional requirement that in the absence of waiver he be represented by 

 [*354]  counsel.  We can see no good purpose in attempting a discussion, pragmatic, theoretical or philosophic, as to the merits, standing or place in the [***10]  present legal system of the Blackstonian theory of the inevitability of the retroactivity of an overruling decision, or as to judicial legislation, either covert or overt -- that is, the extent to which "the potter, and not the pot, is responsible for the shape of the pot" n1 -- or as to the advantages and disadvantages of prospective overruling of prior decisions (for interesting discussion of these matters see Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale Law Journal 907, and Levy, Realist Jurisprudence and Prospective Overruling, 109 Pa. L. Rev. 1) because we are persuaded that the Supreme Court has made it plain that the rule of Gideon must always now be applied whether the conviction of the accused occurred before or after that decision was handed down.

n1 Whitehead, Symbolism: Its Meaning and Effect, pp. 8-9 (1927).

Gideon was convicted by a jury in a Florida court on August 4, 1961, of breaking and entering, and sentenced to five years.  His petition [***11]  for habeas corpus was denied by the Supreme Court of Florida and his petition for certiorari was granted by the Supreme Court of the United States on June 4, 1962; that Court, after hearing argument of counsel on January 15, 1963, decided the case and overruled Betts v. Brady, on March 18, 1963.  Gideon's efforts to obtain his freedom were by way of collateral attack on his conviction, both in the Florida court and the Supreme Court, and not by way of direct appeal.  Thus the Supreme Court applied the law it proclaimed on March 18, 1963, to Gideon's trial in August 1961, although after Betts that trial almost certainly would have been beyond attack on constitutional grounds at any time up to March 18, 1963.  Twenty-two States in an amicus brief in Gideon asked for the overruling of Betts v. Brady but urged that the decision not be applied retroactively. Significantly, not only is there not the slightest hint of an answer to the States' requests for prospective application only in the Court's opinion in Gideon, but the Court said (p. 344 of 372 U.S.): "*** the Court in Betts v. 

 [*355]  Brady made an abrupt break with its own well-considered precedents.  [***12]  In returning to these older precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice."
Doughty v. Maxwell, 376 U.S. 202, 11 L. Ed. 2d 650, confirms the conclusion that Gideon was intended to apply retrospectively. Doughty had been indicted for rape in 1958 and pleaded guilty without the assistance of counsel. The Supreme Court of Ohio rejected his petition for habeas corpus on the ground that he had waived his right to counsel by pleading guilty.  Doughty v. Sacks (Ohio), 183 N. E. 2d 368. Doughty's petition for certiorari reached the Supreme Court after the decision in Gideon.  In a per curiam opinion the Supreme Court remanded for "further consideration in light of Gideon v. Wainwright." On remand, the Ohio Court adhered to its first decision, and the Supreme Court thereafter summarily reversed in a per curiam order on the authority of Gideon and Carnley v. Cochran, 369 U.S. 506, 8 L. Ed. 2d 70, supra.
Since announcing its decision in Gideon, the Supreme Court has remanded to state courts for further consideration in light  [**567]  of Gideon over forty [***13]  cases, most of which were pre-Gideon convictions.  See for example, Pickelsimer v. Wainwright and related cases, 375 U.S. 2, 11 L. Ed. 2d 41. There, in ten cases of convictions antedating Gideon the judgments were vacated by per curiam orders and the cases remanded for further consideration "in the light of Gideon v. Wainwright." Justice Harlan, in solitary dissent, was the only Justice to articulate his views; he stated his belief that the federal question presented in common by the ten cases should not be summarily dealt with because it was "deserving of full-dress consideration." Justice Harlan continued (p. 3 of 375 U.S.):
"When this Court is constrained to change well-established constitutional rules governing state criminal proceedings, as has been done here and in other recent cases, see, e.g., Mapp v. Ohio, 367 U.S. 643; Ker v. California, 374 U.S. 23; Douglas v. California, 372 U.S. 353, it seems to me that the question 

 [*356]  whether the States are constitutionally required to apply the new rule retrospectively, which may well require the reopening of cases long since finally adjudicated in accordance with then applicable decisions [***14]  of this Court, is one that should be decided only after informed and deliberate consideration.  Surely no general answer is to be found in 'the fiction that the law now announced has always been the law.' Griffin v. Illinois, 351 U.S. 12, 26 (Frankfurter, J., concurring).  Nor do I believe that the circumstance that Gideon was decided in the context of a state collateral proceeding rather than upon direct review, as were the new constitutional doctrines enunciated in Mapp and Ker, forecloses consideration of the retroactivity issue in this instance."
It would appear to be a fair inference from the language of the dissent that Justice Harlan's colleagues had no doubt that Gideon applied retrospectively and buttressed their opinion by the fact that the Gideon decision itself had applied its holding in that fashion since it was proclaimed in a collateral proceeding rather than on direct review.
The decisions which have dealt with the problem before us in lower federal courts and in state courts have, save in one instance, agreed that Gideon applies retrospectively. See United States v. LaVallee (2d Cir.), 330 F. 2d 303, cert. den. 377 U.S. 998, 12 L. Ed.  [***15]  2d 1048 (Justice Harlan again dissented saying, inter alia, that the question of the retroactivity of Gideon "deserves plenary consideration by this Court"); United States v. Reincke (2d Cir.), 333 F. 2d 608; Palumbo v. State of New Jersey (3rd Cir.), 334 F. 2d 524; Geather v. State (Fla.), 165 So. 2d 229; and State v. Boles (W. Va.), 139 S. E. 2d 177. In Commonwealth of Pennsylvania, ex rel.  Craig v. Banmiller (Pa.), 189 A. 2d 875, the Pennsylvania court held Gideon to operate prospectively only.  The Federal District Court for the Eastern District of Pennsylvania took a contrary view in United States ex rel. Craig v. Myers, 220 F. Supp. 762, and granted Craig the writ of habeas corpus. This action was affirmed by the Court of Appeals for the Third Circuit in United States 

 [*357]  v. Myers, 329 F. 2d 856. The Supreme Court of Pennsylvania in Commonwealth ex rel. McCray v. Rundle, 202 A. 2d 303, 305, acknowledged that decisions of the Supreme Court of the United States, subsequent to Gideon, had convinced it that Gideon applied retroactively and that its ruling in Craig had been wrong.
We are persuaded that the Gideon holding [***16]  controls the case at bar and that Manning's convictions must be vacated. We hold no more, and particularly do not  [**568]  rule on the retroactivity, vel non, of any Supreme Court decision except Gideon.
Order reversed, and case remanded for the entry of an order vacating the judgments and sentences of the Municipal Court of Baltimore City and the ordering of a new trial on the charges on which those judgments and sentences were based.  

128 of 138 DOCUMENTS 

WATKINS v. STATE 

No. 71, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 357; 206 A.2d 568; 1965 Md. LEXIS 729 

February 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Robbery -- Evidence Was Sufficient To Convict -- Courtroom Identification -- Weight Of, For Trial Court To Determine.  The defendant in the instant robbery case contended that the evidence was so inadequate that the trial Court erred in not granting his motions for judgment of acquittal. The Court stated that while the record did not show whether or not the motion for judgment of acquittal was renewed at the conclusion of the whole case, it was clear that had it been renewed, it was properly denied each time it was offered.  It was held that the evidence produced in the trial court and the inferences deducible therefrom were such that the court could have been fairly convinced beyond a reasonable doubt that the defendant was guilty.  The Court went on to state that they could not say that the lower court was clearly wrong in believing the testimony produced by the State rather than that offered by the defendant.  Further, the weight to be given to the courtroom identification of the defendant by the victim, in the light of his failure to identify him prior to trial and [***2]  in the light of the testimony of a witness to the effect that the defendant was not at the scene of the holdup, was for the trial court to determine.  The identification of an accused by a single eyewitness has often been held sufficient to sustain a conviction.  And it was held that even without the courtroom identification, the evidence was sufficient to support the verdict.  

SYLLABUS:

James E. Watkins was convicted in a non-jury trial of armed robbery and from the judgment entered thereon, he appeals. 

COUNSEL:
William O. Goldstein, with whom was Roland Walker on the brief, for appellant.
Fred Oken, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and John D. Hackett, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City on the brief, for appellee.  

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

OPINIONBY:
HORNEY 

OPINION:

 [*358]   [**568]  The Criminal Court of Baltimore in a nonjury case convicted the defendant (James E. Watkins) of armed robbery and he appealed.  In this Court, the only questions raised relate to the [***3]  quality of the evidence produced in the trial court, that is, whether the evidence was so inadequate as to require granting 

 [*359]  the motions for judgment of acquittal, or whether the evidence was legally sufficient to warrant the conviction.
Shortly after 9:00 p.m. in the evening of November 1, 1963, a man entered a service station on Reisterstown Road and asked the attendant for an automobile battery.  When the attendant started to get one from a rear room, the man drew a revolver and demanded money.  A second man, carrying a plastic bag, then entered the station and ordered the attendant to place the money (between $ 130 and $ 140)  [**569]  into the bag. The attendant complied.  A customer, who was waiting outside for service on his automobile but who did not see the holdup, became suspicious when, upon seeing one man enter the station, he saw two leave, join a third waiting at a parked automobile and drive off.  After jotting down the license number, the customer entered the station, learned of the holdup and promptly notified the police and gave them a description of the automobile and the license number. About an hour later, a police officer, while halting an automobile [***4]  fitting the description and license number of the one to which he had been alerted, saw the driver and sole occupant attempt to conceal something over the sun visor.  After the arrest of the driver, a search of the vehicle disclosed a plastic bag containing several dollars in coin.  On being taken to a police station, the driver denied any knowledge of or participation in the holdup, but a search of his person revealed $ 89 in currency having an odor of gasoline and oil.
At the trial, the station attendant, although unable to recognize the defendant at the preliminary hearing, positively identified him as the man who had ordered him to put the money into the plastic bag. The attendant also identified the bag taken from the automobile as the one used in the holdup. Although it was dark and raining on the night of the robbery, the attendant also testified that he had seen the automobile drive in and out of the service station several times before parking.  He had previously identified the automobile on the police impounding lot soon after the arrest of the defendant.  He identified it again from a photograph at the trial.
The customer, who had written down the license number of the [***5]  parked automobile, was unable to identify the defendant as 

 [*360]  a participant in the robbery either at several police lineups or at the trial.  In fact, he excluded the defendant as one of the men he saw leave the service station after the holdup. He did, however, identify the automobile at the impounding lot as the one used in the robbery. The license number which he had written on a vending machine inside the station was also identified by the customer as the same one he had recorded.
The defendant, in testifying for himself, denied, as he had done while being interrogated at the police station, that he participated in the robbery. Although he could not explain how his automobile came to be used in the robbery, the defendant claimed that at the time of the holdup he was in a tavern in Catonsville where he had gone in the early evening in search of a tavern employee whom he knew only as Mary.  He left the tavern in his automobile after spending several hours there, and it was after he had left that the arrest took place.  He explained the presence of the plastic bag in his automobile by testifying that he was a "numbers" collector for an employer he knew as Cleo.  He attempted [***6]  to conceal the bag because of his illegal activity.  He attributed the odors emanating from the currency found on his person to the fact that he had been working on his automobile.  And he accounted for the large sum of money he was carrying at the time of his arrest by explaining that he had received fifty dollars from a friend.  His testimony as to having worked on his automobile and as to having received the money was corroborated by the only witness he called.  But the State, in an effort to refute his alleged presence at the Catonsville tavern at the time of the robbery, called a Mary Thorne in rebuttal.  This witness, who was employed at the tavern during the evening of the holdup, not only testified that she neither knew the defendant nor saw him in the tavern on that occasion, but, according to her, no other employee named Mary was working at the tavern on the date of the robbery.
Since both questions concern the sufficiency of the evidence, we shall consider them as posing a single contention.  The defendant, relying primarily on the fact that the station attendant was unable to identify him at the preliminary hearing and the further  [**570]  fact that the customer excluded [***7]  him as one of the men he saw at the scene of the crime, contends that the trial court 

 [*361]  erred in refusing to grant his motions for judgment of acquittal and that the evidence was legally insufficient to support the conviction.  We do not agree.
While the record before us does not show whether or not the motion for judgment of acquittal was renewed at the conclusion of the whole case -- the defendant claims it was: the State insists it was not -- it is clear that had it been renewed, it was properly denied each time it was offered.  In performing the only function of this Court in reviewing the sufficiency of the evidence in a nonjury criminal case, we think it is apparent that the evidence produced in the trial court and the inferences deducible therefrom were such that the court could have been fairly convinced beyond a reasonable doubt that the defendant was guilty of the offense charged.  Maryland Rules 772 and 886 a.  See Graczyk v. State, 233 Md. 245, 196 A. 2d 469 (1964); Bird v. State, 231 Md. 432, 190 A. 2d 804 (1963).
The sole eyewitness, the station attendant, besides identifying the defendant at the trial, identified his automobile as the one parked at [***8]  the service station and identified the plastic bag as the one in which the money, smelling of gasoline and oil, was carried away.  Furthermore, the customer, who had recorded the license number of the automobile, identified the same vehicle on the impounding lot.  This evidence, if believed, was sufficient to warrant the finding that the defendant was guilty.  We cannot say therefore that the lower court was clearly wrong in believing the testimony produced by the State rather than that offered by the defendant.  Spencer v. State, 235 Md. 129, 200 A. 2d 643 (1964). See also Ponder v. State, 227 Md. 570, 177 A. 2d 839 (1962).
The weight to be given to the courtroom identification of the defendant by the victim, in the light of his failure to identify him prior to trial and in the light of the testimony of the customer to the effect that the defendant was not at the scene of the hold-up, was for the trial court to determine.  Hicks v. State, 225 Md. 560, 171 A. 2d 722 (1961). See also Hursey v. State, 233 Md. 243, 196 A. 2d 472 (1964); Dyson v. State, 226 Md. 18, 171 A. 2d 505 (1961), cert. den. 368 U.S. 968 (1962). The identification of an accused by a single [***9]  eyewitness has often been held sufficient to sustain a conviction.  Coates v. State, 232 Md. 72, 

 [*362]  191 A. 2d 579 (1963); Booth v. State, 225 Md. 71, 169 A. 2d 388 (1961). Even without the courtroom identification, the evidence was sufficient to support the verdict.
Judgment affirmed.  

129 of 138 DOCUMENTS 

BEY v. STATE 

No. 151, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 627; 206 A.2d 559; 1965 Md. LEXIS 770 

February 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Larceny -- Of Two Tape Recorders -- Evidence Was Sufficient To Convict.
Witnesses -- Credibility Of -- For Trier Of Facts To Determine.  

SYLLABUS:

Paul H. Bey, Jr., was convicted in a non-jury trial of larceny and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted by Alan Edgar Harris for appellant.
Submitted by Thomas B. Finan, Attorney General, Carville M. Downes, Assistant Attorney General, Charles E. Moylan, Jr. and Frank Cannizzaro, Jr., State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Marbury, Sybert and Oppenheimer, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*627]   [**559]  Convicted in a non-jury trial of the larceny of two tape recorders valued at over $ 100, the appellant, Paul H. Bey, Jr., contends on this appeal that the evidence was insufficient to support his conviction.
Police investigating the theft from an office building in Baltimore learned that the appellant had previously worked for the maintenance company which cleaned the office building at night.  Several [***2]  days later the appellant pawned one of the missing tape recorders and when apprehended he  [**560]  had the pawn ticket in his 

 [*628]  possession and admitted that he had pawned the recorder. An acquaintance of the appellant testified for the State that he had purchased the recorder from the appellant and later lent it back to him before it was pawned.
The appellant concedes that ordinarily recent possession of stolen goods raises a presumption that the possessor is the thief and casts on him the burden of giving a reasonable explanation of his possession.  Byrd v. State, 229 Md. 148. But he contends he rebutted the presumption by denying in his testimony that he had sold the recorder to the acquaintance and claiming that he had borrowed it from him in the first instance.  However, the credibility of witnesses was for the trier of facts to determine, and we cannot say the trial judge was clearly in error when he stated he did not believe the explanation of the appellant.  The evidence produced by the State was sufficient, if believed (as the judge said it was), to support the conviction.
Judgment affirmed.  

130 of 138 DOCUMENTS 

JONES v. STATE 

No. 164, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 628; 206 A.2d 553; 1965 Md. LEXIS 771 

February 2, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Arson -- Evidence Was Sufficient To Convict.  

SYLLABUS:

Remus Lee Jones was convicted in a non-jury trial of arson and from the judgment entered thereon, he appealed.  

COUNSEL:
Submitted by Harvey N. Zimmerman for appellant.
Submitted by Thomas B. Finan, Attorney General, Fred Oken, Assistant Attorney General, Charles E. Moylan, Jr. and Richard O. Motsay, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Keating, J., Associate Judge of the Second Judicial Circuit, specially assigned.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*629]   [**553]  Insufficiency of the evidence is the only issue raised by the appellant, Remus Lee Jones, in this appeal following his conviction of arson by Judge Prendergast sitting in the Criminal Court of Baltimore without a jury.
Evidence produced by the State showed that appellant and Virginia Pinchback separated after having lived together for several years.  On the same day the woman resumed a prior cohabitation with one Willie Robinson in an [***2]  apartment some distance away.  The appellant went there the next morning but was refused admittance by the woman. Late that night the occupants of the apartment saw a liquid flowing under their door which "smelled like gasoline", and then it exploded and the door burst into flames. A tenant who had known the appellant a long time testified that he saw Jones running down the stairs of the building just after he heard the explosion and saw the flames. To be sure of identification, he went to a window and saw the appellant running from the building and across the street.  A captain of the Baltimore Fire Department's fire investigation bureau testified that, based on his experience and training, the fire had been caused by the use of a "flammable agent".  Obviously, the evidence was sufficient to support the conviction.
Judgment affirmed. 

131 of 138 DOCUMENTS 

STATE DEPARTMENT OF ASSESSMENTS AND TAXATION et al. v. ELLICOTT-BRANDT, INC.  

No. 143, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 328; 206 A.2d 131; 1965 Md. LEXIS 726 

January 11, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Carter, J.  

DISPOSITION:
Order appealed from reversed, with costs, and order of June 10, 1963, of the Maryland Tax Court reinstated.  

HEADNOTES:

Statutes -- Object Of Judicial Interpretation Of Legislative Enactments -- To Find Legislative Intent -- Harmonizing All Parts Of Statute.  The object of judicial interpretation of legislative enactments is to find and give effect to the intention of the legislative body as expressed in the act as a whole, and since the plainest words in a statute may be controlled by the context, that construction is to be reached which will, if possible, harmonize all parts of the statute, one with the other, and make them all, as nearly as may be, consistent with the general scope and purposes of the legislation.
Statutes -- General Language Of One Part May Be Controlled By More Specific Words Of Another -- Enlarging Or Restricting Meaning To Express Legislative Intent Where Words Are Ambiguous.  The general language of one part of a statute may be controlled by the more specific phraseology of another, and if words are of doubtful or ambiguous meaning, their signification may be enlarged or restricted to make them [***2]  expressive of the intention of the Legislature, if that intention is clearly ascertainable.  In such a case aid to the true meaning of the statute may be found in the history of the adoption of the law and the objects sought to be attained.
Taxation -- Exempting Manufacturers In Baltimore City From Certain Tangible Personal Property Taxes -- Exception Where Manufacturer Holds Manufactured Products For Sale At Retail -- Manufacturer Here Was Subject To Assessment Upon Finished Products Made To Specifications Of Customers.  Under Baltimore City Ordinance No. 1340 (1957-1958), manufacturers are exempted from certain taxes upon tangible personal property used "in connection with manufacturing", including "*** manufactured products in the hands of the manufacturers * * *".  However, the exemption does not extend to manufactured products "held in the hands of said manufacturer for sale at retail".  "Retail sale" and "sale at retail", as used in the Ordinance, refer to the meaning of these terms in the Maryland Sales Tax Act. The appellee here did not maintain a stock or shelf inventory of finished products held out for sale at retail to the public, but produced finished metal products [***3]  to the specifications of its customers, and sold at retail within the meaning of the Maryland Sales Tax Act. The appellee contended that the tax imposed by removing the exemptions in the manner set forth above was a retail inventory tax, and that it maintained no such inventory because it manufactured for retail sale only in response to prior orders.  The Court held that this gave too restricted a meaning to the Ordinance, and rejected it as being contrary to a clearly ascertainable different legislative intent.  The Ordinance did not mean that only a stock or shelf inventory, uncontracted for and maintained for retail sale to the public, was meant to be taxed.  There is a formula inserted in the Ordinance to determine the fair average value of products of the manufacturer in his hands for sale at retail, and this formula is applicable unless "clear evidence to the contrary" is furnished.  The taxing authorities contended that the use of the words "entire inventory" in the formula meant that raw materials and goods-in-process, as well as finished products, were to be included in the figures presented by the manufacturer if he wished the formula not to apply.  However, the Court [***4]  decided that the manufacturer was exempt as to raw materials while acting as such.  He is taxable only in his role as a retailer, and a retailer deals only in finished products.  The Court further held that the Maryland Tax Court was justified in finding that the manufacturer had produced the clear evidence required if the formula was not to be applicable, in that it had submitted compilations by its cost accountant and a certified public accountant.  

SYLLABUS:

Petition of appeal by the State Department of Assessments and Taxation and the Mayor and City Council of Baltimore from the final order of the Maryland Tax Court determining the 1962 tangible personal property tax assessment upon certain property of Ellicott-Brandt, Inc., to be $ 2,940.  From an order determining that the respondent was not subject to assessment for any such taxes, the petitioners appeal.  

COUNSEL:
Martin B. Greenfeld, Assistant City Solicitor of Baltimore, with whom were Thomas B. Finan, Attorney General, Stuart H. Rome, Assistant Attorney General, and Joseph Allen, City Solicitor, on the brief, for the appellants.
David Ross, with whom were Ober, Williams & Grimes on the brief, for the appellee.  

JUDGES:
 [***5]  
Hammond, Horney, Marbury and Barnes, JJ., and Digges, J., Chief Judge of the Seventh Judicial Circuit, specially assigned.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*330]   [**132]  State and city tax gatherers are appealing from a determination by Judge Carter in the Baltimore City Court that, under Ordinance 1340 of Baltimore City (1957-58), exempting manufacturers from certain tangible personal property taxes, Ellicott-Brandt, Inc., the appellee, was not subject to assessment for any such taxes for 1962 on metal products which it had custom-made or fabricated to the specifications of its customers, sold at retail within the meaning of the Maryland Sales Tax Act and delivered from its factory.
By Ordinance 462 (1918-19), codified as Sec. 84 of Art. 46 

 [*331]  of the Baltimore City Code (1927), the city "in order to encourage the growth and development of manufacturing industries in Baltimore City * * *" exempted from ordinary municipal taxation "raw material on hand" and "manufactured products in the hands of the manufacturer," as well as machinery and equipment used in manufacturing which had theretofore  [**133]  long been exempted. The [***6]  fifth paragraph of Sec. 84 provided as follows:
"In case any person, firm or corporation engaged in manufacturing in Baltimore City shall also be engaged in the business of a jobber, or wholesaler or retail merchant, in Baltimore City, nothing, in this section, shall be construed to exempt the personal property, other than goods of his own manufacture, used in connection with said business of jobber, or wholesale or retail merchant."
Sec. 84 was repealed by Ordinance 52, approved March 6, 1944, and the essence of its provisions, including the reference to a retail merchant, was reordained in a new Sec. 80 of Art. 46 of the Baltimore City Code.  By Ordinance 111, effective December 17, 1947 (some five and a half months after the State Sales Tax Act first became effective), Sec. 80, as passed in 1944, was amended to include a proviso "*** that manufactured products in the hands of the manufacturer [except milk and bread] *** and held in the hands of said manufacturer as a retail merchant * * *" were not to be exempt.
Sec. 80, as passed in 1944 and amended in 1947, was repealed and reordained by Ordinance 1503 effective December 20, 1950, which was codified as Sec. 50 of [***7]  Art. 37 of the Baltimore City Code (1950).  The first paragraph of Sec. 50, for the same reasons and purposes declared in the earlier ordinance, exempted from ordinary municipal taxation all personal property of every description used chiefly or entirely in connection with manufacturing, including manufactured products in the hands of the manufacturer, and contained the 1947 proviso that the products of the manufacturer in his hands and destined for sale at retail should not be exempt, although the words "*** held in the hands of said manufacturer as a retail merchant * * *" were 

 [*332]  changed to "*** held in the hands of said manufacturer for sale at retail by such manufacturer * * *." In the third paragraph of Ordinance 1503, dealing with the personal property of jobbers and wholesalers, the reference to retail merchants was omitted.
Paragraph 2 of Sec. 50, new in content, was designed to furnish a way to measure the taxability of products of the manufacturer which were not included in the exemptions granted by Sec. 50.  It said that in order to determine the "*** fair average value of the inventory for sale at retail for the twelve months preceding the date [***8]  of finality, it shall be presumed in the absence of clear evidence to the contrary that a ratio of the entire inventory held by the taxpayer during said period shall be subject to assessment equal to the ratio that the total retail sales bear to the total sales for such period," and then added the following:

"The terms 'retail sale' and 'sale at retail' as used in this section shall be construed to be a sale in any quantity or quantities of any tangible personal property to any person or persons, association or corporation, as said terms are defined in Section 259 of Article 81 of the Annotated Code of Maryland (1947 Supplement) and any amendments thereof, when the sale is for any purpose other than those in which the purpose of the purchaser is (1) to resell the property so transferred in the form in which it is received by him or it, or (2) to use or incorporate the property so transferred as a material or part of other tangible personal property to be produced for sale by manufacturing, assembling, processing or refining."
The city, much to the resentment of some, perhaps all manufacturers, repealed the manufacturers' tax exemption by Ordinance 643, effective December [***9]  5, 1956, in order to avoid, as far as possible, an increase in the tax rate.  See Kimball-Tyler v. Baltimore City, 214 Md. 86, 89. By Ordinance 1340, effective December 31, 1958, the city, fearing that most manufacturers  [**134]  would flee the city as some had already done, and that new ones would be discouraged from beginning operations in 

 [*333]  the city, repealed Ordinance 643 and reinstated the manufacturers' tax exemption by stages (for 1959 twenty-five per cent, for 1960 fifty per cent, for 1961 seventy-five per cent, and for 1962 and thereafter "the entire amount of the total assessed valuation of personal property used in manufacturing").
Ordinance 1340 does not differ in any material respect here pertinent from Ordinance 1503, in effect prior to 1956.  Like its predecessor it was to be codified as Sec. 50 of Art. 37 of the Baltimore City Code.  Its stated purposes were the same as those of the earlier exempting ordinances. Sec. 50 (a) of the revived law, as had its ancestor, exempted "*** personal property of every description used entirely or chiefly in connection with manufacturing in Baltimore City * * *" including "*** manufactured products in the hands [***10]  of the manufacturers * * *." Sec. 50 (b) provided, as did its immediate forbear, that "*** manufactured products in the hands of the manufacturer [with exceptions as to milk, bread, food and food products] *** and held in the hands of said manufacturer for sale at retail by such manufacturer, shall not be exempt from taxation under the terms and provisions of this section." Sec. 50 (c) spells out exactly, as did the similar ordinance repealed in 1956, how the fair average value "*** of the inventory for sale at retail for the twelve months preceding the date of finality * * *" is to be determined "in the absence of clear evidence to the contrary." It again relates the meaning of the terms "retail sale" and "sale at retail" as used in the ordinance to the meaning of those terms in the Maryland Sales Tax Act, as defined in the Code (the reference in the 1958 ordinance is to Sec. 324 of Art. 81 of the Code (1957)), whereas in the ordinance repealed in 1956, the reference was to the similar then existing provisions numbered Sec. 259 of Art. 81 of the Code (1947 Supp.), and repeats the provisions that the manufacturers' exemption is applicable if the purpose of the buyer is to resell [***11]  the property or to use or incorporate it in manufacturing, assembling, processing or refining.
Sec. 50 (d) provides, as did the corresponding paragraph of Ordinance 1503, that if a manufacturer is also a jobber or wholesaler -- with no mention of a retail merchant -- his personal property "other than goods of his own manufacture," used in connection with his business, shall not be exempt.

 [*334]  The parties have stipulated all the pertinent facts.  Ellicott's business is the manufacture and fabrication of metal products.  It does not maintain a stock or shelf inventory of finished products which it holds out for sale at retail to the public but instead produces finished metal products to the specifications of a customer. It is a manufacturer within the meaning of Ordinance 1340.  The only manufactured products on its premises from time to time are those awaiting delivery to the customer. During 1961 it had on its premises a total of one hundred eighty manufactured products "*** which were sold at retail within the meaning of Ordinance 1340, 1957-1958" and which, variously, remained at the factory from less than one working day (as to sixty-six items) to from eleven to thirty [***12]  days (as to thirty items), for example.
Ellicott maintains records showing the monthly value of its inventory of raw materials and of its inventory of goods-in-process but no inventory of finished goods. The value of undelivered finished goods is reflected in its goods-in-process inventory until actual delivery is made.
The fair average value of Ellicott's total inventory for the twelve months preceding January 1, 1962, was $ 506,810; the fair average value of finished goods sold at retail during 1961 was $ 4,906.  Total gross sales for 1961 were $ 2,013,116 of which 13% or  [**135]  $ 256,014 were subject of the Maryland Retail Sales Tax.
The stipulation recites that it is Ellicott's contention that it is not taxable because the tax which Sec. 50 (b) imposes on a retailing manufacturer -- by removing the exemption on products which are "*** held in the hands of said manufacturer for sale at retail by such manufacturer * * *" -- is a retail inventory tax and it maintains no such inventory because it manufactures for retail sale only in response to prior orders.  If it is taxable at all, Ellicott says, all of its inventory is exempt from Baltimore City personal property taxation [***13]  except finished goods which are sold at retail within the meaning of Ordinance 1340 (1957-58) and the assessment, on this theory, would be $ 2,940.
The position of the tax gatherers is that Ordinance 1340, read as a whole, makes the provisions of the Maryland Sales 

 [*335]  Tax Act the measure of whether a manufacturer holds goods for sale at retail and that Ellicott, under that test, clearly does so.  The harvesters of tax tribute to the governments go on to say that not only finished goods sold at retail but also "*** raw materials and goods-in-process which ultimately go into finished goods which are sold at retail within the meaning of Ordinance 1340, 1957-58, are subject to assessment for Baltimore City personal property taxation * * *." They contend further that the formula in Sec. 50 (c) of Ordinance 1340 must be applied "*** because the taxpayer offers no clear evidence of the fair average value of such raw materials and goods-in-process." The amount of the assessment on this theory would be $ 39,530.
The Maryland Tax Court held that Ellicott was taxable on an assessment equal to the fair average value in 1961 of products in the factory which were later delivered to [***14]  customers in sales at retail as defined in Code (1957), Art. 81, Sec. 324 (because of the incorporation of that section by reference into Sec. 50 of Art. 37 of the Baltimore City Code).  That court further held that Ellicott had offered clear evidence of the fair average value of the finished products on hand for delivery to customers pursuant to a sale at retail and, therefore, the statutory formula did not come into play, and found that the assessment should be $ 2,940, rather than $ 39,530.
We think the Tax Court reached the right results.  The object of judicial interpretation of legislative enactments is to find and give effect to the intention of the legislative body as expressed in the act as a whole and, since the plainest words in a statute may be controlled by the context, that construction is to be reached which will, if possible, harmonize all parts of the statute, one with the other and make them all, as nearly as may be, consistent with the general scope and purposes of the legislation.  Associated Acceptance v. Bailey, 226 Md. 550, 556. Within this framework courts also recognize that the general language of one part of a statute may be controlled by the more specific [***15]  phraseology of another, Rafferty v. Comptroller, 228 Md. 153, 158, and that if words are of a doubtful or ambiguous meaning their signification may be enlarged or restricted to make them expressive of the intention of the Legislature, if that intention 

 [*336]  is clearly ascertainable.  In such case, aid to the true meaning of the statute may be found in the history of the adoption of the law and the objects sought to be attained.  Pressman v. Barnes, 209 Md. 544.
The rule of construction last mentioned was found applicable to a tax exemption statute in Armco Steel v. State Tax Commission, 221 Md. 33, and to a tax statute in Compt. of Treasury v. Crofton Co., 198 Md. 398. In Armco Chief Judge Brune for the Court said of the word "refining" (at p. 41 of 221 Md.):

"The appellees argue that because this definition is that listed first in Webster, it is the fundamental definition which  [**136]  expresses the usual and ordinary meaning of the word.  The error in this reasoning is that it attempts to place the use of the word 'refine' in a vacuum without regard to the subject to which the Ordinance is directed.  The exemption was directed at refiners and [***16]  processors of ores and other unrefined metals. In construing the language of a statute, the court must consider not only the literal or usual meaning of words, but their meaning and effect considered in the light of the nature of the subject matter and the purposes to be accomplished.  [citing cases] *** This rule applies to exemption enactments as well as to other laws."

In Crofton Judge Markell, for the Court, said (at p. 403 of 198 Md.): "'Manufacture', 'product' and like words are words of broad scope.  Like other words, they must be construed, broadly or narrowly, in the light of their context and the legislative purpose."
Pressman v. State Tax Comm., 204 Md. 78, 90, went to the length of suggesting that if the intention of the legislative body, gathered from the entire enactment is clear, it should be given effect even though it may be necessary to strike out or insert certain words in the law to do so.
Reading Ordinance 1340 as a whole, in light of the history of its adoption and of the objects sought to obtained, we find the legislative intent to be clear.  A manufacturer was again to be exempt from ordinary municipal taxation except when he 

 [*337]   [***17]  acted as a retail merchant of his output; that is to say, he was to be exempt from taxation on "manufactured products in the hands of the manufacturer" except as to that part of his output in his hands held for "sale at retail" as Sec. 50 (b) puts it.  Sec. 50 (c) makes it plain that whenever and wherever the phrases "retail sale" or "sale at retail" are used in Sec. 50, they are to be construed to be "*** a sale in any quantity *** to any person *** as said terms are defined in Sec. 324 of Art. 81 of the Annotated Code of Maryland (1957 Edition) and any amendments thereof * * *" unless the sale is to a purchaser who is to resell the article in the form received or to use or incorporate the item as part of other tangible personal property to be produced for sale.  Sec. 324 (f) of Art. 81 provides that "*** the term 'sale at retail' shall include but shall not be limited to the following: *** (2) Any production, fabrication or printing of tangible personal property on special order for a consideration."
The history of the ordinance as to the treatment of a manufacturer who also acted as a retail merchant of his products and the mechanics employed by the City Council of incorporating [***18]  the definitions of the sales tax law into the ordinance to indicate that portion of the products of the manufacturer which were taxable, makes manifest the legislative purpose to exempt as an integral part of the manufacturing process manufactured products which are not sold to the ultimate consumer and to impose as part of the retailing process ordinary personal property taxes on the average value of products of the manufacturer in his hands which he sells to the ultimate consumer (and which, therefore, would be subject to the sales tax).  The interpretation Ellicott seeks to give the phrase in Sec. 50 (b) "*** and held in the hands of said manufacturer for sale at retail by such manufacturer shall not be exempt * * *," namely, that it means that only a stock or shelf inventory, uncontracted for and maintained for retail sale to the public was meant to be taxed, gives too restricted a meaning to the ordinance, and must be rejected as being contrary to a clearly ascertainable different legislative intent.  The whole phrase used -- "*** manufactured products in the hands of the manufacturer, *** and held in the hands of said manufacturer for sale at retail by such 

 [*338]   [***19]  manufacturer shall not be exempt from taxation under the terms and provisions of this section" -- is not, it fairly  [**137]  may be said, a model of grace and clarity, but we think, in the context of the history of the ordinance and of what precedes and follows the phrase in the ordinance, it was intended to mean no more than that products in the possession of the maker thereof which were intended to be sold at retail (and when they were, were subject to sales taxes) were subject to assessment for ordinary personal property taxes.
Ellicott's one hundred eighty items sold at retail came within the ambit of the taxing provisions of the ordinance and the fair average value of those items in the hands of the manufacturer in 1961 was subject to assessment.
The state and city contend that the formula inserted in Sec. 50 (c) to determine the fair average value of the products of the manufacturer in his hands for sale at retail -- that, in the absence of clear evidence to the contrary, there shall be subject to assessment that percentage of the entire inventory of the taxpayer during the measuring period which the total retail sales bear to the total sales during such period -- means that [***20]  the "entire inventory" includes raw materials, goods-in-process, and finished goods and the statutory ratio, therefore, must include not only finished goods but also some raw materials and goods-in-process. On these premises it is argued that if a taxpayer wishes the formula not to apply, he must present clear evidence not only of the actual figures as to the finished products (as Ellicott concededly did) but also as to "the amount of raw materials and goods-in-process on hand that will go into the finished goods that will be held for sale at retail."
Our reading of the ordinance precludes the interpretation sought by the tax gatherers.  The manufacturer is exempt as to raw materials while he acts as such.  He is taxable only in his role of retailer, and a retailer deals only in finished products.  The ordinance intended, as we see it, to continue the exemption on the products of the manufacturer until they become finished products ready for sale at retail and, only from then on, to subject them to taxation. The ordinance seeks to have ascertained the fair average value of "the inventory for sale at retail" during the twelve months before the date of finality.  An "inventory 

 [*339]   [***21]  for sale at retail" can only mean personal property ready for sale -- that is, finished products.
The formula seeks to reach an approximately accurate appraisal of the value of the finished products of the manufacturer which he sells at retail. The value of the raw materials incorporated into the finished product will be reflected in that value but the finished product ordinarily will have a substantially greater value than the cost of the material in it since the cost of skill and labor will also be reflected, and this will be true of the finished products sold for resale or further use in manufacturing, and so not subject to the sales tax, as well as to such products sold by the maker to the ultimate consumer which are subject to sales tax.  Thus the formula would not seem to be an unreasonable method of reaching a result which in general well might not be too different from that the taxpayer could show by actual records and figures as to the fair average value of finished products held for retail sale.
Ellicott's cost accountant submitted to the Tax Court a compilation of sales in 1961 which were subject to sales tax, supported by job numbers, completion dates, shipment and billing [***22]  dates and direct labor and material costs.  A certified public accountant submitted another compilation showing the fair average value on cost of Ellicott's manufactured products held for sale at retail in 1961.  From the testimony, the Tax Court found that Ellicott had produced the clear evidence that Sec. 50 (c) requires if the formula is not to be applicable, and we think the finding was justified.
The order of the Baltimore City Court of May 8, 1964, which reversed the order of the Maryland Tax Court dated June 10, 1963, must be reversed and the said order  [**138]  of the Tax Court finding an inventory of finished products held for sale at retail subject to an assessment of $ 2,940 reinstated.
Order appealed from reversed, with costs, and order of June 10, 1963, of the Maryland Tax Court reinstated.  

132 of 138 DOCUMENTS 

JOHNSON, BRADFORD and BURKE v. STATE 

No. 116, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 283; 206 A.2d 138; 1965 Md. LEXIS 719 

January 7, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Continuance -- No Abuse Of Discretion In Trial Court's Refusal To Grant -- Ample Time To Prepare For Trial -- Indictee Had Counsel From Time Of Arraignment Thirty Days Before Trial -- Was Notified Of Trial Date Two Weeks In Advance -- State's Attorney Offered To Turn File Over To Counsel -- Trial Judge Was Willing To Grant Postponement At Time Of Defense Presentation If Time Was Then Needed To Procure Witnesses.
Evidence -- Testimony Of Police Officer As To Extrajudicial Identifications Held Admissible Where Identifying Eyewitnesses Were Present And Subject To Cross-Examination -- Such Testimony Admitted Both With And Without Corroboration Or Courtroom Identification By Identifying Witnesses.
Evidence -- Testimony As To Extrajudicial Identification Without Corroboration Or Courtroom Identification By The Identifying Witness Is Admissible Over Objection That It Is Not The Best Evidence -- First Identification Is Usually Best Identification.
Evidence -- On Record Composition Of Lineup Of Suspects Was Proper, Precluding Question Of Unreliability Of Extrajudicial Identification  [***2]   -- Fairness, Reliability, Sufficiency And Weight To Be Given Such Identifications Were For Trial Court To Determine.
Criminal Law -- Robberies -- Sufficient Evidence To Convict Of Crimes Charged -- Credibility Of Witnesses, Weight Of Evidence And Sufficiency Of Identifications Were For Trier Of Facts To Determine -- In One Of Robberies Charged, Return Of Wallet Did Not Negate Commission Of Crime -- Requisite Intent To Permanently Deprive Owner Of Property Was Evident From Circumstances Surrounding Taking At Gun Point.
Attorneys -- Fact That Same Attorney Represented More Than One Defendant Would Not Constitute Error Absent Showing Of Actual Or Potential Conflict Of Interest -- Refusal To Discharge Court Appointed Counsel Would Not Constitute Error Where Record Does Not Show Lack Of Competent Representation.
Appeal -- Claims Of Ineffective Assistance Of Counsel, Illegal Arrest, Denial Of Separate Trial, Denial Of Fair And Impartial Trial And Inadequate Presentation Of Appeal, Never Raised Below, Were Mere Allegations Presenting No Basis For Appellate Review -- However, Court Disposed Of These Questions As They Might Be Raised In A Post Conviction Proceeding.  

SYLLABUS:

 [***3]  
Collins L. Johnson, Crawford S. Bradford and Carroll M. Burke were convicted, under a series of indictments, of armed robbery, by the trial court, sitting without a jury, and from the judgments entered thereon, they appeal.  

COUNSEL:
Paul Wartzman for appellants.
Mathias J. DeVito, 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:
Hammond, Horney, Marbury, Sybert and Oppenheimer, JJ.  Horney, J., delivered the opinion of the Court.  

OPINIONBY:
HORNEY 

OPINION:

 [*285]   [**139]  Collins L. Johnson, Crawford S. Bradford and Carroll M. Burke, having been convicted in the Criminal Court of Baltimore  [**140]  under a series of indictments for armed robbery, have appealed.
The appellants are three of six persons who were charged with and tried for sundry robberies committed in certain liquor dispensing establishments in Baltimore City during the first five months of 1963.  The convictions are but a part of more than thirty indictments under which the indictees were tried.  As a result of the robbery of Montford Liquors, on January 23, Burke was convicted [***4]  under indictments numbered 2861 and 2862.  As a result of the robbery of Dutch's Tavern, on April 29, Johnson and Burke were convicted under indictments numbered 2853, 2854, 2855, 2856, 2858 and 2859.  As a result of the robbery of Goerge's Tavern, on May 7, Bradford was convicted under indictments numbered 2841, 2843 and 2844, but he does not contest any of these convictions.  As a result of the robbery of Bower's Cafe, on May 16, Johnson, Bradford and Burke were convicted under indictments numbered 2836, 2840 and 2860.  And, as a result of the robbery of Darley Park Tavern, on May 28, Burke was convicted under indictments numbered 2845 and 2864, but he does not contest either of these convictions.
Since the facts and circumstances (particularly the extrajudicial 

 [*286]  identifications) concerning those convictions which are contested in this Court do not apply to all appellants in each case, we shall state the facts with respect to the robbery of Bower's Cafe, Dutch's Tavern and Montford Liquors separately.
Bower's Cafe Robbery
The indictments for this robbery (numbered 2836, 2840 and 2860) involve all three appellants.  Harry Morris was the owner-bartender and Violet [***5]  Lewis was a customer.  At the trial, both testified that four men were involved in the holdup.  The police lineup was composed of eight men dressed somewhat similarly, five were in their twenties and three were in their forties, and all were approximately of the same height and weight.  The bartender testified that he had identified one of the robbers at the lineup and the customer testified that she had identified two, but they were not asked to identify anyone in court or whether they were able to do so.  Walter Hall, another eyewitness, testified that he could not identify any of the robbers. Sergeant Nagle (who had made a record of the identifications the eyewitnesses made) testified, however, that Lewis had picked out Burke and Bradford at the lineup and that Morris had picked out Johnson.  The trial court overruled an objection that the testimony of the officer concerning the extrajudicial identifications was hearsay, but offered to permit the eyewitnesses to be recalled for cross-examination with respect to the identifications. This was not done.
Aside from the identifications, there were some inconsistencies in the testimony in that the bartender stated that Carroll Burke [***6]  was the one who took his ring, while Leroy Burke (a brother of Carroll) testified that the taker of the ring was Nelson Bradford (apparently a relative of Crawford Bradford).  The bartender also stated that all four robbers had guns, while Walter Hall stated only three were armed, as did Leroy Burke.  The mother and sister of Johnson also testified that he was helping them move furniture at the time the robbery was committed.
Violet Lewis further testified, with respect to the charge in indictment numbered 2840, that one of the four armed robbers 

 [*287]  took her wallet from her purse, looked inside, and, finding no money, put it on the bar where it was later found.
Dutch's Tavern Robbery
The indictments for this robbery (numbered 2853, 2854, 2855, 2856, 2858 and 2859) involve only Johnson and Burke.  Four of the eyewitnesses were unable to identify anyone.  When, however, Joseph Ervin and Ferdinand Rutkowski, two other eyewitnesses or victims, were called and asked whether they had made any identifications at the police lineups, both replied that they  [**141]  had.  But instead of asking them whom they had identified, the State again produced Sergeant Nagle for that [***7]  purpose.  After the police officer had testified as to the identifications made by Ervin and Rutkowski, both witnesses were recalled and positively identified Johnson and Burke in court as Sergeant Nagle said they had done at the lineup.
Again there were some inconsistencies in the testimony.  Although Rutkowski identified both Johnson and Burke, he was apparently confused as to which one of them he had identified in each of two lineups. While both Ervin and Rutkowski identified Burke as the one who held up Rutkowski, Ervin testified that the robber was wearing a white sweater while Rutkowski stated that it was blue.
Montford Liquors Robbery
The indictments for this robbery (numbered 2861 and 2862) involve only Burke.  Ralph Cullen was unable to identify anyone, but Max Rubenstein, another eyewitness, affirmatively identified Burke as one of the robbers at the trial.  While Rubenstein stated he had picked out the robber from twenty or twenty-five individual photographs, Sergeant Nagle indicated that the witness had identified Burke in a group photograph he had shown him rather than from the smaller photographs. The witness also stated that he had been to two or three police [***8]  lineups, when, according to the sergeant, he had been to only one lineup and was there unable to identify Burke.
A few days before trial and again on the day of trial, Johnson moved for a continuance or postponement on the ground that his counsel had not had time to prepare for trial.  There was a period of thirty days between arraignment and trial.  Although 

 [*288]  counsel had been given two weeks notice of the trial date, he had not petitioned for a continuance until four days before trial.  When the trial court refused to grant a continuance, the State's Attorney offered to make his files (including all statements taken) available to trial counsel but apparently the offer was declined.  The trial lasted for almost two weeks.  The trial court refused to continue the trial, and stated it would grant a postponement should it be necessary when the time came to present the defense in order to afford Johnson further opportunity to secure such witnesses as were still missing, but it refused to delay presentation of the State's case.
On appeal questions are presented as to: (i) the propriety of denying appellant Johnson's motion for a continuance or postponement; (ii) the admission [***9]  of the testimony of the police sergeant as to extrajudicial identifications of appellants made by victims or eyewitnesses of the robbery; and (iii) the sufficiency of the evidence to convict the several appellants of the robberies for which they were indicted.  Additional questions (iv) are raised by appellant Burke in a "supplementary brief" he filed in proper person.
(i)
Appellant Johnson contends that it was an abuse of discretion for the trial court to deny his motion for a continuance or postponement and that in so doing he was denied effective assistance of counsel in violation of his constitutional rights.  The claim is that due to the numerous indictments against him, the complexity of the issues, and the absence of witnesses material to his defense, he was unprepared for trial and that a postponement should have been granted.
The granting of a continuance, as the appellant recognizes, is within the sound discretion of the trial court.  Mazer v. State, 231 Md. 40, 188 A. 2d 552 (1963); McKenzie v. State, 236 Md. 507, 204 A. 2d 678 (1964). In this case, where the indictee was represented by counsel he had employed from the time of arraignment some thirty days before [***10]  trial and was notified of the date set for trial some two weeks before trial began, we cannot say that the trial court abused its discretion in refusing  [**142]  to grant the requested postponement. The States' Attorney, 

 [*289]  in order to aid counsel for the appellant in the preparation of his case, offered to make the whole file on the case available.  Furthermore, the trial judge, though denying a continuance, emphasized his willingness to grant a postponement if counsel found, when it was time to present the defense, that he needed additional time to procure witnesses.  Under the facts of this case, it is evident that Johnson had ample time to prepare for trial and, in the absence of a showing of extraordinary circumstances necessitating a delay, a postponement was not required.  Harmon v. State, 227 Md. 602, 177 A. 2d 902 (1962). See also Bryant v. State, 232 Md. 20, 191 A. 2d 566 (1963), and Pressley v. State, 220 Md. 558, 155 A. 2d 494 (1959).
(ii)
The admission of the testimony of the police sergeant as to the extrajudicial identifications of Johnson, Bradford and Burke made by two of the victims (Morris and Lewis) of the Bower's Cafe robbery was not [***11]  reversible error.  Nor was it error to admit the testimony of the officer as to the extrajudicial identifications of Johnson and Burke made by two of the eyewitnesses or victims (Ervin and Rutkowski) of the Dutch's Tavern robbery and thereafter allow them to identify Johnson and Burke from the witness stand.
The admissibility of this type of evidence as an exception to the hearsay rule was recognized by this Court in Basoff v. State, 208 Md. 643, 119 A. 2d 917 (1956). There it was held that testimony of an extrajudicial identification was admissible where the identification was such as to preclude any suspicion of unfairness or unreliability.  Evidence of this nature was, at first, admitted as corroborative of a judicial identification, but it was later held to be admissible, under some circumstances, as substantive evidence.  See Judy v. State, 218 Md. 168, 146 A. 2d 29 (1958). For a thorough discussion of the decisions of this Court with respect to the admissibility of extrajudicial identifications, see the opinion by Chief Judge Brune in Proctor v. State, 223 Md. 394, 164 A. 2d 708 (1960).
The appellants involved in the Bower's Cafe and Dutch's Tavern robberies do [***12]  not dispute the admissibility of extrajudicial identifications under such circumstances as were present 

 [*290]  in prior decisions.  They challenge, however, the admission of an extrajudicial identification when the identification is established by another witness, such as the police sergeant in this case, without any corroboration by the identifying witness.  Such evidence is deemed by these appellants to be unfair and unreliable in that it is not the best evidence. They assert that a courtroom identification by an eyewitness or a victim of a crime would be the best evidence, but concede that if such an identification cannot be made, then the testimony of a police officer as to whom the witness or victim had identified at the police lineup would be sufficient.  An additional factor of unreliability is said to exist because the composition of the lineup of suspects in connection with the Bower's Cafe robbery was improper.
With respect to the Dutch's Tavern robbery, it is also contended that it was error to allow the police sergeant to testify (as to the extrajudicial identifications made by two of the eyewitnesses or victims) and then to allow the identifying witnesses to make [***13]  a courtroom identification on redirect examination when they had not disclosed on direct examination whom they had identified at the lineup.
While the cases, which are collected in an annotation in 71 A.L.R. 2d 449, indicate that the primary objection to testimony of an extrajudicial identification is that it is hearsay, it is evident that the use of such identifications either as corroborative or substantive evidence is gaining recognition in the courts of other jurisdictions as well as this.  In Judy v. State, supra, we recognized (at p. 174 of 218 Md.) that "evidence is hearsay only  [**143]  when it derives its value, not solely from the credit given to the witness himself, but in part from the veracity and competency of another person." However, where the out-of-court declarant is available as a witness, the dangers sought to be avoided by the hearsay rule are not present.  See Commonwealth v. Johnson, 193 A. 2d 833 (Pa. 1963), where it is said that the testimony of a police officer as to an extrajudicial identification made at a voice lineup is admissible and not objectionable as hearsay when the identifying victims are witnesses at the trial and subject to cross-examination.  [***14]  Such a rule is in line with the A.L.I. Model Code of Evidence (Rule 503) and the Uniform Rules of Evidence (Rule 63[1]), which, in effect, 

 [*291]  provide that testimony as to an extrajudicial identification is admissible if the identifying person is available as a witness so as to afford the accused the rights of confrontation and cross-examination. We hold therefore that where, as here, the identifying victims or eyewitnesses were present and subject to cross-examination, the testimony of the police officer as to the extrajudicial identifications was admissible.
Even where witnesses do not make a courtroom identification of the indictees, an extrajudicial identification is admissible as evidence over an objection that it is not the best evidence. State v. Simmons, 385 P. 2d 389 (Wash. 1963). We note that the Simmons case cited Judy v. State, supra, for the proposition that the first identification is usually the best identification. For other cases that have admitted evidence of extrajudicial identifications even where no positive courtroom identification was made, see People v. Gould, 354 P. 2d 865 (Cal. 1960) and State v. Wilson, 231 P. 2d 288 (Wash.  [***15]  1951), cert. den. 342 U.S. 855 (1951) and 343 U.S. 950 (1952). See also Bulluck v. State, 219 Md. 67, 148 A. 2d 433 (1959), cert. den. 361 U.S. 847 (1959), where the victim testified that the accused resembled her attacker very closely but made no positive courtroom identification.
An examination of the record discloses that the lineup was so constituted as to preclude any question of the extrajudicial identification having been made under circumstances which were other than proper.  The fairness, reliability and sufficiency of the out-of-court identifications, as well as the weight to be given such identifications, were primarily for the trial court to determine, and we find no error.  See Sippio v. State, 227 Md. 449, 451, 177 A. 2d 261 (1962); Presley v. State, 224 Md. 550, 168 A. 2d 510 (1961), cert. den. 368 U.S. 957 (1962); and Proctor v. State, supra.
(iii)
We think the record shows that the trial court had before it sufficient evidence to fairly believe beyond a reasonable doubt that the appellants were guilty of the crimes charged in the indictments. Whatever minor inconsistencies existed in the testimony of the witnesses would only go to the [***16]  credibility of the 

 [*292]  witnesses and the weight to be given such testimony was in the first instance for the trier of facts to determine.
As to the indictments arising out of the Bower's Cafe robbery, the extrajudicial identifications of the robbers as well as the identification of the ring taken from one of the victims was sufficient evidence to convict Johnson, Bradford and Burke of these holdups.  This is equally true with respect to the indictment numbered 2840, despite the claim that the robbery charged therein had not been proved.  The mere fact that the wallet taken from another of the victims was subsequently discarded is of no consequence.  The requisite intent to permanently deprive the owner of her property was evident from the circumstances surrounding the taking at gunpoint.   [**144]  The subsequent return of the wallet did not negate the commission of the crime.  See Midgett v. State, 216 Md. 26, 41-42, 139 A. 2d 209 (1958).
With respect to the indictments returned as a result of the robbery of Dutch's Tavern, the extrajudicial as well as courtroom identifications of the robbers was more evidence than was required to sustain the convictions of Johnson [***17]  and Burke of this robbery. Even without the testimony of the police sergeant, the positive courtroom identification by an eyewitness was sufficient to support the convictions.  See Bean v. State, 234 Md. 432, 444, 199 A. 2d 773 (1964).
Finally, as to the indictments presented in connection with the holdup of Montford Liquors, the victim, in addition to pointing out the robber in a group photograph shown to him by the police, positively identified the accused at the trial.  This was sufficient evidence to convict Burke of this robbery. See Booker v. State, 225 Md. 183, 170 A. 2d 203 (1961).
As was said in Hursey v. State, 233 Md. 243, 244, 196 A. 2d 472 (1964), the "weight of the evidence and the credibility of witnesses as well as the sufficiency of the identification of an accused are matters primarily for the trial court as the trier of facts to determine."
(iv)
Expressing dissatisfaction with his court appointed appellate counsel, the appellant Burke "in proper person" contends that he was denied the effective assistance of counsel in that 

 [*293]  one attorney was appointed to represent all three appellants.  He also claims an illegal arrest, denial of a separate [***18]  trial, denial of a fair and impartial trial and an inadequate presentation of his appeal.  As these are questions that might be raised in a post conviction proceeding, we shall dispose of them now while the whole record is before us.  See Royal v. State, 236 Md. 443, 204 A. 2d 500 (1964).
The fact that the same attorney represented more than one defendant or appellant -- in the absence of a showing that an actual or imminently potential conflict of interest (and none was here shown) prevented the attorney from impartially and adequately representing his clients -- would not constitute error.  Pressley v. State, supra, (at p. 562 of 220 Md.).  Furthermore, the refusal to discharge court appointed counsel in accordance with the wishes of a defendant or appellant would not constitute error where, as here, there is nothing in the record to even suggest that the attorney had not competently represented his client.  Cf. Hines v. Warden, 236 Md. 406, 204 A. 2d 176 (1964), and see Hines v. State, 223 Md. 251, 164 A. 2d 268 (1960). See also Campbell v. State, 231 Md. 21, 188 A. 2d 282 (1963).
Not only does the record fail to show that the other questions were ever raised [***19]  below, but there is absolutely nothing in the record to show that his arrest was illegal, that he had been denied a separate trial or that he had not had a fair and impartial trial, and the mere allegations thereof, without more, presented no basis for appellate review.  Bauerlien v. Warden, 236 Md. 346, 203 A. 2d 880 (1964). Certainly his appeal was adequately presented in this Court.
Judgments affirmed.  

133 of 138 DOCUMENTS 

SWARTZ v. STATE 

No. 125, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 263; 205 A.2d 803; 1965 Md. LEXIS 715 

January 6, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Arrest -- Probable Cause Found To Believe That Defendant Had Committed And Was Committing Felony -- Goods Seized As Incident Of Arrest Properly Admitted Into Evidence, Even Though They Were Not Involved In Crime Which Police Were Investigating When Arrest Was Made.
Criminal Law -- No Merit To Claim That Oral Confession Was Adduced As Result Of Unlawful Arrest -- Arrest Legal -- No Request Made For Lawyer, And Escobedo Doctrine Not Controlling.
Larceny -- Testimony Held Sufficient To Permit Inference That Corporation Was Owner Of Stolen Articles, And That These Articles Had Been Taken Without Knowledge Or Permission Of Its Officials.  

SYLLABUS:

Rodney W. Swartz was convicted of two charges of larceny, by the trial court, sitting without a jury, and from the judgments entered thereon, he appeals.  

COUNSEL:
Bernard J. Sachs, with whom were Francis J. Meagher and Goodman, Meagher & Enoch on the brief, for the appellant.
Carville M. Downes, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and William J. O'Donnell, State's Attorney for Baltimore  [***2]   City, on the brief, for the appellee.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*264]   [**804]  The appellant was convicted by Judge Grady, sitting without a jury, of two charges of larceny. On appeal he argues that his arrest was illegal, that photographs of the stolen articles seized from his car at the time of his arrest and an oral confession were improperly admitted into evidence against him, and that the evidence did not establish the corpus delicti and was insufficient to sustain the trial court's finding of guilt.
The arresting officers had been summoned by radio to investigate a breaking into a warehouse at Paca and Pratt Streets in Baltimore.  They found two men in the building who fled and were arrested by other policemen outside the building.  Two other men escaped and a car was heard hastily leaving the warehouse which had been burglarized of a number of boxes. The police noted that some of the boxes apparently had been removed from a pile which had been systematically arranged outside the building.  They drove off in the squad car seeking to 

 [*265]  find the automobile [***3]  that had fled the scene.  Six blocks away they saw a car "turn out in front of us rather fast" and observing a box in the trunk (the trunk top being open) immediately thought it was the car for which they were looking, and stopped it.
The box in the trunk was partially open and in it could be seen an air conditioner. On the rear seat were a number of other boxes which contained plumbing fixtures.  Not satisfied with the story of the appellant that he was transporting the goods of his employer from one job site to another after midnight, the officers arrested him.
We think the officers had probable cause to believe that the appellant had committed and was in the process of committing a felony, that is, a prior wrongful taking and a present wrongful asportation of goods of a value of $ 100.00 or more.  Inasmuch as the arrest was legal, the use of the goods seized as an incident of that arrest properly were admitted as evidence against the appellant even though, as it turned out, they were not involved in the crime which the police were investigating when the arrest was made.  Braxton v. State, 234 Md. 1.
When the oral confession of the appellant was offered in evidence, after [***4]  its voluntariness had been testified to, counsel for the appellant said: "I object to the admission of the statement for the reason it was adduced as a result of an unlawful arrest, so I object on that basis."
The ground of the objection loses all effect since the arrest was legal.  It is now argued, although it was not below, that the confession was inadmissible under Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, because it was made when the suspect was not represented by counsel.  We have held that the Supreme Court limited the effect of Escobedo to the facts before it in that case and that one of those decisive facts was that the accused there had repeatedly and in terms asked to see a previously retained lawyer and had been refused.  Here no request for a lawyer whatever was made and Escobedo, in our view, does not control.  Bichell v. State, 235 Md. 395; Mefford and Blackburn v. State, 235 Md. 497.
 [**805]  The State's proof as to the ownership and wrongful taking of the air conditioner and plumbing supplies, the photographs 

 [*266]  of which were offered in evidence against the appellant as being in his possession when he was arrested, might [***5]  have been more technically precise than it was, but we find that the testimony was sufficient to have permitted the trier of fact properly to have inferred that the Ingleside Plumbing & Heating Co., a corporation, owned and had at a job site, at which it was a subcontractor, the air conditioner and the plumbing supplies, as well as that these articles had been taken from the site without the knowledge or permission of the officials of the corporation.
Judgments affirmed.  

134 of 138 DOCUMENTS 

FORD v. STATE 

No. 137, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 266; 205 A.2d 809; 1965 Md. LEXIS 716 

January 6, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Escape -- Crime Of, Committed By Appellant When He Broke Away From Guard And Fled Courtroom During Trial.  In the instant case the appellant was serving six months' sentence at Hagerstown for operating a motor vehicle without a license when he was indicted for burglary and larceny of an automobile.  When he was brought into the Criminal Court of Baltimore to stand trial by a "correctional officer" of the Maryland Correctional Institution he broke away from his guard and ran out of the courtroom. It was held that the appellant committed the crime of escape even though he was physically outside the prison area since he was still in legal custody.
Double Jeopardy -- Institutional Punishment Received By Inmate For Escape Did Not Cause Subsequent Trial And Conviction For Crime Of Escape To Amount To Double Jeopardy.  In the instant case the appellant was convicted of the crime of escape when he broke away from his guard and fled the courtroom while on trial for burglary and larceny of an automobile.  He contended that the two-year sentence imposed for the escape amounted to double jeopardy [***2]  because the prison authorities had already punished him by solitary confinement. The Court stated that the rule against double jeopardy in Maryland derives from the common law and a statute which is inconsistent with its common law scope and effect will prevail.  Code (1964 Supp.), Art. 27, Sec. 692 provides for the character and administration of intra-mural punishments "for violation of discipline in the institutions" of the Department of Correction, and Sec. 139 of Art. 27 makes an escape from a place of confinement by the State a crime, and authorizes, upon conviction, the imposition of a prison sentence. It was held that the two statutes can stand together and both, therefore, may be effectively utilized to punish the same escape, without double jeopardy coming into play.  In addition, it has consistently been held that double jeopardy attaches only when the first punishment is in a court of law empowered to impose punishment and the solitary confinement of the appellant by the prison authorities was not in this category.  

SYLLABUS:

Frank D. Ford was convicted of the crime of escape and from the judgment entered thereon, he appeals.  

COUNSEL:
Robert V. Lazzaro for appellant.  [***3]  
Mathias J. DeVito, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, William J. O'Donnell and Julius A. Romano, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City on the brief, for appellee.  

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

OPINIONBY:
HAMMOND 

OPINION:

 [*267]   [**810]  The appellant Ford is a young man who was serving a six months' sentence at Hagerstown for operating a motor vehicle without a license when he was indicted for burglary and larceny 

 [*268]  of an automobile.  He was brought into the Criminal Court of Baltimore to stand trial by a "correctional officer" of the Maryland Correctional Institution.  His handcuffs were removed and he asked and was granted permission to get a drink of water.  He broke away from his guard and ran out of the courtroom, but was recaptured on the street almost immediately and returned for trial on the pending indictments.  He was subsequently indicted for and convicted of escape. n1

n1 Ford explained that his reason and purpose for escaping were to marry his girl who was pregnant with his child and who he had learned just before being brought into the courtroom could not get Welfare Department payments because she was not married.  There is a hint, and perhaps a hope, of a happy ending to the story in the remarks of Judge Harlan to the appellant, after saying that he would be lenient in sentencing: "I understand your girl is going to wait for you.  I suggest that you do everything possible to behave yourself and perhaps you can get out and straighten yourself out."

 [***4]  
Judge Harlan imposed a two-year sentence for the escape, to begin at the expiration of the sentences he had imposed for burglary and larceny. Ford, evidently irked because the prison authorities had punished him by solitary confinement for a number of days before the trial (his gripe is that since he was not physically within the confines of the prison at the time of his escape he was not guilty of a breach of prison rules or discipline which would justify punishing him administratively at the prison), contends that the two-year sentence amounted to double jeopardy and was invalid. n2

n2 It may be inferred that Judge Harlan, in deciding the length of the sentence for escape, took into account the fact of the administrative punishment.

 [**811]  The reasons the appellant has used to convince himself he should not have been punished by the prison authorities and again by the court are understandable but not legally sound.  In Best v. Warden, 235 Md. 633, the prisoner who had been taken from the penal institution [***5]  to the University Hospital for medical treatment walked off after his guard went to telephone for transportation back to the penitentiary. In challenging his conviction for escape on post conviction, the prisoner argued he did not commit the crime of escape as defined in Code (1957), 

 [*269]  Art. 27, Sec. 139, "since he was left unguarded and the hospital was not a place of confinement," and that since he had received institutional punishment for his escape his subsequent conviction and the sentence therefor constituted double jeopardy. Both contentions were rejected by this Court.  We said (pp. 634-635):
"The argument that the applicant did not commit the crime of escape since he was left unguarded and the hospital was not a 'place of confinement', is answered in Johnson v. Warden, 196 Md. 672, 75 A. 2d 843 (1950). There this Court held that a prisoner was legally confined in the State Reformatory within the meaning of what is now Art. 27, sec. 139, even though he was allowed to work outside, unguarded, on a private farm, and that, when he escaped from the farm, he was subject to punishment for escape from the Reformatory.  The same reasoning applies in the instant case,  [***6]  and thus the applicant was properly convicted of escape under Art. 27, sec. 139.  Cf. Taylor v. State, 229 Md. 128, 182 A. 2d 52 (1962). The claim that the guard had abandoned 'jurisdiction' or custody (even if it were assumed that he could lawfully do so), is negated by the fact that the only reason the applicant was left alone was to permit the guard to arrange for transportation back to the penitentiary.
"In regard to the second contention, institutional punishment was not the equivalent of a trial and the applicant was not put in jeopardy thereby."
The rule against double jeopardy in Maryland is not established by the Constitution of the State but derives from the common law. The rule may be amended by the Legislature and a statute which is inconsistent with its common law scope and effect will prevail.  Wampler v. Warden, 231 Md. 639, 645; Ruckle v. State, 230 Md. 580, 583; Moquin v. State, 216 Md. 524; Eggleston v. State, 209 Md. 504; Johnson v. State, 191 Md. 447; Robb v. State, 190 Md. 641. Sec. 692 of Art. 27 of the Code (1964 Supp.) provides for the character and administration of intra-mural punishments "for violation of discipline 

 [*270]   [***7]  in the institutions" of the Department of Correction, and Sec. 139 of Art. 27 of the Code (1964 Supp.) makes an escape from a place of confinement by the State a crime, and authorizes, upon conviction, the imposition of a prison sentence up to ten years in most cases and up to three years in others.
The two statutes can stand together and both, therefore, may be effectively utilized to punish the same escape, without double jeopardy coming into play.
In addition, it has consistently been held that double jeopardy attaches only when the first punishment is in a court of law empowered to impose punishment, Moquin v. State, supra, and the solitary confinement of Ford by the prison authorities was not in this category.  The state and federal courts which have considered the question in cases where the facts were analogous to those here under review have held that administrative punishment for breach of prison discipline does not cause a fine, imprisonment or other punishment  [**812]  meted out by a court after trial for crime of escape to amount to double jeopardy. n3

n3 State v. Gonyer (N. H.), 162 A. 2d 172 (1960); People v. Elliott (Calif. D. C. of App.), 34 Cal. Rptr. 560 (1963); State v. Williams (Wash.), 356 P. 2d 99 (1960); State v. Gore (Tenn.), 175 S. W. 2d 317 (1943); State v. Cahill (Iowa), 194 N. W. 191 (1923); People v. Huntley (Mich.), 71 N. W. 178 (1897). The federal cases decided on the Fifth Amendment are in accord: Patterson v. United States, 183 F. 2d 327, 328 (4th Cir., 1950), cert. den. 340 U.S. 893 (1950); Mullican v. United States, 252 F. 2d 398, 400 (5th Cir., 1958).

 [***8]  
The appellant concedes the proposition just discussed but argues that the cases cited in the footnote which support it deal with escapes from within the confines of the prison walls.  As we have seen, Maryland draws no distinction between an escape from within the prison walls and one effected when the prisoner, while still in legal custody, was physically outside the prison area.
Judgment affirmed.  

135 of 138 DOCUMENTS 

DePAUL and DePAUL, TRUSTEES, et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY, et al.  

No. 103, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 221; 205 A.2d 805; 1965 Md. LEXIS 711 

January 5, 1965, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Order affirmed, with costs to the appellees.  

HEADNOTES:

Zoning -- Prince George's County -- Rezoning Application Denied -- Changes In The Character Of The Neighborhood -- Issue Was Fairly Debatable -- Evidence Was Sufficient To Support Denial -- Council's Action Was Not Arbitrary, Capricious Or Illegal.  In the instant case the appellants applied for the rezoning of a tract of land from the R-55 (single family dwelling) to R-10 (medium density apartment) but their application was denied by the District Council for the Maryland-Washington Regional District in Prince George's County.  The appellants contended that the record showed that there have been numerous changes in the character of the neighborhood sufficient to justify the rezoning. After reviewing the record, the Court held that in this case there was substantial evidence to support the Council's action.  The zoning map and aerial photographs showed that the area immediately adjoining the property involved was still residential and that residential development in the area had continued during the last year.  As the trial court pointed out, general [***2]  testimony as to the topographical and economic difficulties in using the property involved for residences is not enough, in itself, to require a change or reclassification. There is a strong presumption of the validity of classifications made when the comprehensive map was adopted.  Further, the Council, the Maryland Park and Planning Commission and its technical staff found that the proposed reclassification was inconsistent with the purposes of the Master Plan in effect and was not justified.  The Court stated that therefore, the issue was fairly debatable and consequently, the Council's action was not arbitrary, capricious or illegal.
Zoning -- Prince George's County -- Denial Of Rezoning Application Did Not Amount To An Unconstitutional Confiscation Of The Property -- Mere Loss Or Hardship Not Sufficient -- Appellants Failed To Meet Burden Of Showing That They Were Precluded From Using The Property For Any Purpose To Which It Is Reasonably Adapted.  In the instant case the appellant contended that the District Council's action of denying their application for a zoning reclassification amounted to an unconstitutional confiscation of their property.  The Court stated that to [***3]  prevail in this contention it must be shown that the denial of the reclassification precluded the property's use for any purpose to which it is reasonably adapted. It is not enough for the property owners to show that it resulted in substantial loss or hardship upon some individuals.  Here, two real estate experts testified for the appellants that, in their opinion, the Federal Housing Administration would not approve a home loan on the property.  However, there was no evidence that applications for loans to develop the property for residences had been made to and denied by the F.H.A., or that such loans had been applied for and rejected by banks or other lending institutions.  There was expert testimony as to the topographical difficulties involved in developing the property for residential purposes, but no figures were presented to show the costs which would be involved.  It was shown that the owners of the property would not live on it, because of the noise of the increased traffic which resulted from the widening of an adjoining road, and difficulty of access because of grade.  However, the Court stated that many homes front on duallane highways, and the opinions expressed that [***4]  grading and building of retaining walls would make the erection of homes financially impracticable were unsupported by figures.  Therefore, it was held that the appellants did not sustain the burden of showing that the Council's action precluded them from using their property for any purpose for which it is reasonably adapted. 

SYLLABUS:

Application by Joseph A. DePaul and Albert L. DePaul, Trustees, and others, for the rezoning of a tract of land in Prince George's County.  From an order of the Circuit Court sustaining the denial of their application by the District Council for the Maryland-Washington Regional District in Prince George's County, they appeal.  

COUNSEL:
James Magruder Rea and Russell W. Shipley for appellants.
Lionell M. Lockhart and Harry L. Durity, with whom were Robert B. Mathias and Joseph S. Casula on the brief, for appellees.  

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

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*223]   [**806]  This is an appeal from an order of the Circuit Court for Prince George's County sustaining the denial of a zoning reclassification by the District Council for [***5]  the Maryland-Washington Regional District in Prince George's County (the Council).  The property involved consists of two adjoining parcels comprising a total area of 2.14 acres; it is located on the north side of Landover Road, about one-half mile west of the John Hanson Expressway, and 700 or 800 feet east of the Baltimore-Washington Parkway.  The appellants asked for a change of zoning classification of this property from R-55 (single family dwelling) to R-10 (medium density apartment).  The Maryland Park and Planning Commission and its technical staff recthat there was not sufficient change in the area to justify reommended denial of the requested classification change, finding zoning and that its Master Plan for the area was for the property's 

 [*224]  inclusion in the R-55 Zone. The Council, after a hearing, denied the application, and, on appeal, the lower court affirmed the Council's action.
The appellants claim that the Council's action in denying the application was unsupported by competent, material and substantial evidence on the entire record and was therefore arbitrary, capricious and not fairly debatable. They make no other contention under the Prince George's [***6]  County Statute, Ch. 780 of the Laws of 1959.  They also contend that the Council's refusal to grant the rezoning amounted to an unconstitutional taking of the property.
I
The appellants concede that there was no evidence before the Council to show any error in the original zoning map adopted by the County Commissioners in November, 1949.  They contend, however, that the record shows there have been numerous changes in the character of the neighborhood sufficient to justify the rezoning they seek.
A portion of the original property owned by the appellants was taken when Landover Road was widened to a six-lane dual highway. One of the houses on the property was destroyed by the widening. While there was sufficient property remaining in this parcel on which to build a house, these owners decided to build elsewhere because of the increased traffic and topographical problems.  The other appellants are not occupying their property for the same reasons.  The zoning map, the aerial photographs taken for the appellants, and their witnesses show the zoning changes since the map's adoption.  These changes have been numerous on both sides of Landover Road, and include reclassifications for [***7]  apartments as well as commercial zones. None of these changes, however, is closer than approximately a half-mile to the property here involved, except for one lot which the aerial photographs show is undeveloped.  The area immediately surrounding the appellant's property is zoned R-55 for single family homes.
There are a number of single family residences on Otis Street immediately adjoining the appellant's property to the north, eight or nine of which are new.  There is a substantial rise in ground from the property of the appellants to these houses.  

 [*225]  Experts  [**807]  produced by the appellants testified that the property is no longer suitable for development in its present zoning classification and that it would be economically unsound to develop it for single family residences.
In his oral opinion, Judge Bowie said:

"[N]owhere did there appear to be any technical topographical map submitted to show the comparison in the topography between this land and that on the north side of Otis Street.  Other than a bald statement of fact by these men in behalf of the applicants below there didn't appear in the record any additional testimony which would back up [***8]  this statement regarding impracticability.  There were no statistical figures.  There was no one presented other than just to make this statement.  The fact that houses had been built on the other side of Otis Street within the last few years we think watered this down considerably.  There were no figures; just statements.  But there were no figures presented on costs.  No detailed study had been made, apparently."

He analyzed the zoning changes which had been made and concluded:
"So if we consider the principle of a small area involved where you have the density of the population, it just doesn't seem to the Court that the decision of the District Council was in any way arbitrary or capricious. The responsibility was upon the applicants in the first instance to prove that there had been a change.  It was determined by the District Council that there had not been sufficient change in the area, that it wouldn't be compatible with the neighborhood and, in effect, this was spot zoning. When we consider the principle of a small area because of the density of growth, it just is not, we feel, within the prerogative of this Court to substitute any thought we might have, or our [***9]  opinion for that of the District Council in this particular case."

We agree.

 [*226]  We have held in many cases that the court, in reviewing the actions of zoning authorities, "will not substitute its judgment for that of the authority unless the latter's action was arbitrary, capricious or illegal and that if the facts were sufficient to support the decision the question decided was fairly debatable and the decision must be upheld." Furnace Branch Co. v. Board, 232 Md. 536, 540, 194 A. 2d 640 (1963) and cases therein cited.  In Jobar Corp. v. Rodgers Forge, 236 Md. 106, 202 A. 2d 612 (1964), we said: "We have stated time after time that it is not the function of the courts to zone or rezone, and the courts will not substitute their judgments for that of the expertise of the zoning officials." 236 Md. at 120.
It is only where the record is devoid of supporting facts that the court may declare the administrative zoning action invalid.  In Board v. Oak Hill Farms, 232 Md. 274, 192 A. 2d 761 (1963), we affirmed the order of the lower court reversing the Council's action denying petitions for zoning classifications, because we found there was no evidence to support [***10]  the Council's order.  In Levitt and Sons v. Board, 233 Md. 186, 195 A. 2d 723 (1963) we reversed the order of the lower court in affirming an order of the Council granting a reclassification, again because we found no evidence to justify the order.
Unlike the situations in Oak Hill and Levitt, in this case there was substantial evidence to support the Council's action.  The zoning map and aerial photographs show that the area immediately adjoining the property involved is still residential.  There was testimony that the residential development north of Otis Street had continued during the last year.  As the trial court pointed out, general testimony as to  [**808]  the topographical and economic difficulties in using the property involved for residences is not enough, in itself, to require a change or reclassification. There is a strong presumption of the validity of classifications made when the comprehensive map was adopted.  Montgomery County v. Ertter, 233 Md. 414, 418, 197 A. 2d 135 (1964); Reese v. Mandel, 224 Md. 121, 128, 167 A. 2d 111 (1961). In Oak Hill, the Planning Commission rejected the staff's recommendations and findings that the proposed [***11]  rezoning would provide the best possible use of the property and stabilize the area and that the rezoning would adhere to the proposed master 

 [*227]  plan.  In this case, the Council, the Commission and the staff found the proposed reclassification was inconsistent with the purposes of the Master Plan in effect and was not justified.  We find the issue fairly debatable. As in Kaslow v. Rockville, 236 Md. 159, 202 A. 2d 638 (1964), the question of whether the Council, on the evidence before it, would have been justified in granting the application, is not before us.
II
To prevail in their contentions that the Council's action amounted to an unconstitutional confiscation of their property, the appellants must show that the denial of the reclassification precludes the property's use for any purpose to which it is reasonably adapted. Walker v. Talbot County, 208 Md. 72, 94-95, 116 A. 2d 393 (1955), cert. denied 350 U.S. 902 (1955). If an owner affirmatively demonstrates that the legislative or administrative action deprives him of all beneficial use of his property, the action will be held unconstitutional.  Frankel v. City of Baltimore, 223 Md. 97, 162 A. 2d 447 [***12]  (1960); City of Baltimore v. Cohn, 204 Md. 523, 105 A. 2d 482 (1954). However, it is not enough for the property owners to show that the exercise of the police power, which is an essential attribute of sovereignty, results in substantial loss or hardship upon some individuals.  Grant v. City of Baltimore, 212 Md. 301, 314, 129 A. 2d 363 (1957); Walker v. Talbot Co., supra, 208 Md. at 87. The restriction on the property imposed by the zoning action must be such that it can not be used for any reasonable purpose.  Marino v. City of Baltimore, 215 Md. 206, 218, 137 A. 2d 198 (1957); Serio v. City of Baltimore, 208 Md. 545, 552-55, 119 A. 2d 387 (1956).
Two real estate experts testified for the appellants (one expert was also one of the appellants) that, in their opinion, the Federal Housing Administration would not approve a home loan on the property.  However, there was no evidence that applications for loans to develop the property for residences had been made to and denied by the F.H.A., or that such loans had been applied for and rejected by banks or other lending institutions.  There was expert testimony as to the topographical difficulties involved in developing [***13]  the property for residential 

 [*228]  purposes, but, as Judge Bowie pointed out, no figures were presented to show the costs which would be involved.  It was shown that the owners of the property would not live on it, because of the noise of the increased traffic which resulted from the widening of Landover Road, and difficulty of access because of grade; however, many homes front on dual-lane highways, and the opinions expressed that grading and building of retaining walls would make the erection of homes financially impracticable were unsupported by figures.
The appellants rely strongly on Cohn and Frankel, but the facts in these cases were far stronger for the property owners than the evidence here presented.  In Cohn, it had never been possible to use the tract involved for residential purposes. There were billboards and a fruit stand on the adjacent lot and a tourist camp was on the opposite side.  A junk yard for automobiles was only a short distance away.  The appellants quote portions of the record in Frankel to show similarities with the present case, but there were other facts there involved not here present.  In Frankel the lot was an irregular  [***14]   [**809]  tapering one; immediately to the north the entire block was occupied by religious communal buildings; and across the street were a synagogue, a public parking area and a large public junior high school.
Marino and Serio are closer on the facts.  Marino was an appeal from a court order affirming the action of the Board of Municipal and Zoning Appeals in refusing to grant an exception under the Zoning Ordinance of Baltimore City; in affirming the order of the lower court, we said: "Although the Marinos based their application for an exception in part under Section 36 (b), supra, on the claim that their property was peculiar in that its topography as well as the grade between it and the adjacent land to the north rendered it impossible to construct dwellings thereon, the testimony as to such peculiarities was so meager that it was not unreasonable for the Board and the trial court to have concluded that the property was not unique and therefore was not such as to justify an exception for those reasons." 215 Md. at 217-18. In Serio, we affirmed the order of the lower court approving the action of the Board of Municipal and Zoning Appeals in refusing [***15]  to grant a variance for the erection of a filling station in a residential area district, despite 

 [*229]  expert testimony that the land was not suitable for residential purposes because of the difficulty in obtaining financing and that it could only be used for such purposes at a loss.  208 Md. at 551. Grant v. City of Baltimore, supra, involved the constitutionality of the Baltimore billboard ordinance. The appellants contended, inter alia, that the ordinance was invalid as to them because their properties could not be used for residences or for any reasonable purpose except to support billboards. We upheld the constitutionality of the ordinance despite the fact that the property of one of the appellants had a gully running through it which would have to be filled for the building of a house.  212 Md. at 321.
We agree with the court below that the appellants have not sustained the burden of showing that the Council's action precludes them from using their property for any purpose for which it is reasonably adapted.
Order affirmed, with costs to the appellees.  

136 of 138 DOCUMENTS 

ARAVANIS v. EISENBERG et ux.  

No. 113, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 242; 206 A.2d 148; 1965 Md. LEXIS 714 

January 5, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed January 28, 1965, Denied February 4, 1965.  

PRIOR HISTORY:
Appeal from the Superior Court of Baltimore City; Prendergast, J.  

DISPOSITION:
Judgment affirmed, with costs to the appellees.  

HEADNOTES:

Negligence -- Fireman Injured Upon Defendants' Premises While Fighting Fire -- Legal Status -- Licensee -- Invitee -- Instructions As Favorable To Fireman As They Could Have Been Even If His Contentions Were Correct.  In this action by a fireman who claimed that he was injured while fighting a fire upon the defendants' premises, not as a result of the fire itself, but because of the defendants' negligence which both caused the fire and put into operation an active, dangerous force which operated after the fire had started, this Court held that even upon the plaintiff's hypothesis as to the causes of the injuries, the instructions to the jury were as favorable to him as they could have been, even if his contentions as to his status as an invitee at the time of the injuries were correct.  As to the plaintiff's status when he came to the defendants' premises to fight the fire, the charge stated that he was in the position of a licensee who took the property as he found it,  [***2]  subject to the usual and ordinary hazards to which firemen are ordinarily exposed.  The trial judge then proceeded to instruct the jury as to the legal situation if they found that because of the defendants' negligence, there was a danger greater than that normally found in a private dwelling, and known to, or reasonably foreseeable by, the defendants, but not known to the plaintiff.  The Court held that while the judge did not in express terms refer to the plaintiff in the situation postulated as an invitee, the duty which the jury was told the property owners had to the plaintiff under the conditions set forth was the duty which a property owner owes to an invitee.
Negligence -- Fireman Injured Upon Defendants' Premises While Fighting Fire -- Directed Verdict For Fireman Upon Issue Of Liability Properly Denied.  Where suit was brought for injuries to a fireman sustained while fighting a fire upon the defendants' premises, the trial court correctly denied a directed verdict for the plaintiff upon the issue of liability, since the testimony conflicted as to whether or not the defendants were negligent in any way, and if they were, whether the danger to the plaintiff was reasonably [***3]  foreseeable and the proximate cause of his injuries.
Negligence -- Proximate Cause -- Definition Of -- Specific Application Of Doctrine In Instructions To Jury.  Where the trial judge in the present negligence case defined "proximate cause" as meaning "literally, the 'next' or immediate cause of the injury, as distinguished from remote or merely possible causes", this Court held that when a specific application of the doctrine of proximate causation to the facts was made in accordance with the applicable legal principles, the jury was probably more enlightened as to the meaning of the doctrine than they would have been by any abstract definition.
Instructions to Jury -- Some Rules As To.  The trial court's instructions to the jury must be considered as a whole; the charge need not comply with the technical rules of formal prayers, and this Court will not condemn a charge because an isolated part of it does not seem to do justice to one side or to the other, or because of the manner in which it is expressed.
Statutes -- Or Ordinances -- Interpretation Of, For Court -- No Request For Construction By Court In This Case, And No Exceptions Taken To Failure To Do So. [***4]  
Negligence -- Alleged Violation Of Fire Prevention Code -- Instructions To Jury.  A fireman injured while fighting a fire upon the defendants' premises claimed that the defendants were negligent because they allegedly had violated the fire prevention code in storing acetone in a glass jug.  The trial court's charge to the jury, taken as a whole, made it clear that in determining negligence, violations of the code were to be taken as evidence of negligence, properly leaving to the jury's determination the questions of fact as to whether there were any violations, and if so, whether the violations were the proximate cause of the injury.  The Court found no reversible error in the charge upon this point.  Violations of a statute or ordinance are evidence of negligence, but do not constitute negligence per se.
Nuisance -- Generally Applicable To Condition Of Premises Unsafe In Itself Without Other Operative Force -- Elements Of Nuisance Which Might Be Applicable In Present Case Were Embodied In Instructions To Jury.
Interrogatories -- Negligence Case -- No Prejudicial Error Found In Overruling Of Exceptions To Answers.  In the present case, in answer to an interrogatory [***5]  calling for the name of any person having personal knowledge of the facts material to the case, the appellees answered that none was presently known, but that they intended to make additional investigations and would supply names as discovered.  The Court found no prejudicial error in overruling the appellant's exception to this answer, because it was not shown that at the time of its filing, the appellees knew of any such person not theretofore mentioned.  Moreover, the grounds given for the exception were not sufficiently specific.  The Court further held as to other interrogatories asking for a statement of facts upon which the appellees planned to rely as to contributory negligence that the trial court disposed of the appellant's exceptions to the answer in accord with the intent and spirit of the discovery rules.  The answer stated that the appellees had no facts upon this issue other than those adduced, but that a further investigation was being made and any further relevant facts produced by it would be furnished.  The trial court overruled the exceptions but ordered that any such additional information be supplied by a date fixed prior to trial, thus protecting the appellant [***6]  against surprise and giving an adequate period for preparation prior to trial if alleged new facts were furnished.
Evidence -- Memorandum Of Recorded Statements Of Firemen As To What Took Place At Fire Where Fireman Was Injured Held Properly Admitted Into Evidence Under Circumstances Here -- Business Records Statute.  In the present negligence suit brought for injuries sustained by a fireman while fighting a fire upon the defendants' premises, a memorandum of recorded statements of firemen as to what took place at the scene was properly admitted into evidence under the business records statute.  Code (1957), Art. 35, sec. 59.  The fire marshal who testified as to the statements said that the report was kept in his files, that it was a record regularly kept in the course of business and that the photostatic copy offered in evidence was an accurate reproduction of the notes in his file, thus meeting the requirements of sec. 59.  As to alleged inconsistencies between the statements and testimony by the same witnesses in court, the weight to be accorded evidence is for the jury.
Evidence -- Negligence Case -- Storing Acetone In Glass Jug -- Objection To Testimony As To Knowledge  [***7]   Of Fire Prevention Code, And Prevalent Practice, Either Properly Overruled Or No Prejudicial Error Found.  Where a fireman who was injured while fighting a fire upon the defendants' premises claimed that the defendants were negligent because they allegedly had violated the fire prevention code by storing acetone in a glass jug, the trial court properly overruled an objection to a question asked one of the defendants as to whether or not he had personal knowledge of the existence of the ordinance which prescribed the manner in which acetone was to be stored.  The plaintiff, through an officer, had introduced evidence tending to show that the defendant knew that he had violated the code.  It was proper under such circumstances for the defendant to explain his conversation with the officer.  Evidence which explains facts already in evidence is relevant and therefore admissible.  Nor was there any prejudicial error under the circumstances of this case in admitting testimony by a fire marshal that acetone was sold at retail in glass containers, that this was the prevalent practice, and that his office (charged with enforcing the code) had taken no action to prevent the practice.  There [***8]  was a dispute as to the meaning of the terms of the code, and if an ordinance is ambiguous, evidence of the practice in respect to its enforcement is some evidence of administrative construction. 

SYLLABUS:

Action by Phil J. Aravanis against Lloyd A. Eisenberg and Diane U. Eisenberg to recover damages for injuries sustained while the plaintiff was fighting a fire upon the defendants' premises.  From a judgment entered upon a jury's verdict for the defendants, the plaintiff appeals.  

COUNSEL:
Karl G. Feissner and Stedman Prescott, Jr., with whom were Alpern & Feissner on the brief, for the appellant.
Charles E. Channing, Jr., for the appellees.  

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

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*246]   [**150]  This case involves the duties of property owners to a fireman seriously injured while fighting a fire upon their premises and the rights of a fireman at common law and under the Montgomery County Fire Prevention Code.  The plaintiff-appellant sued in the Circuit Court for Montgomery County but an affidavit of removal was filed by the defendants, and the trial took place in the [***9]  Superior Court of Baltimore City.  At the conclusion of the testimony, the trial judge denied motions for directed verdicts requested by the plaintiff and the defendants.  The jury returned a verdict for the defendants, and the plaintiff has appealed from the judgment on that verdict.  He contends that his motion for a directed verdict against the defendants should have been granted, and that the trial judge erred in refusing certain prayers requested by the plaintiff and in the charge to the jury.  He also contends that the trial judge committed prejudicial errors in his rulings in connection with the plaintiff's interrogatories and exceptions thereto and in permitting some testimony to be admitted over objection.
The basic facts were succinctly summarized by Judge Prendergast in his charge to the jury, as follows:
"The plaintiff seeks to recover damages for personal injuries which he sustained in the course of fighting a fire at the home of the defendants located at 

 [*247]  8337 Grubb Road in Silver Spring, Maryland, late in the afternoon of May 22, 1962.  Philip J. Aravanis, the plaintiff, was a professional fireman serving as a member of one of the companies of the Silver [***10]  Spring Fire Department. His company, along with others, had responded to a fire alarm which had been given by Mrs.  [**151]  Diane U. Eisenberg, one of the defendants, after her husband, Lloyd A. Eisenberg, told her there was a fire in the basement of their home and directed her to telephone the alarm.  Mrs. Eisenberg did so by calling the operator, who in turn relayed the alarm to the Fire Department. The firemen responded within a matter of minutes and went about their duties of extinguishing the fire.
"Mr. Aravanis was in the basement where the fire was concentrated and using a hose charged with water in an effort to extinguish flames which he had observed in the ceiling through the smoke.  Suddenly, according to some of the witnesses, there was a flash and plaintiff was severely burned over large parts of his body.  Other firemen came to his rescue, dragged him outside the building, and he was taken by ambulance to a hospital where he remained for a considerable period of time.  It is for the injuries thus sustained that he brings this suit charging that the defendants were guilty of negligence which brought about the injuries.
"There appears to be no dispute as to the cause [***11]  of the fire in this case.  The defendant, Lloyd A. Eisenberg, in some fashion brushed or knocked a tool off his work bench, causing it to fall down onto a jug containing acetone, which then burst and its contents spilled out on the basement floor.  The acetone almost immediately came in contact with the flame of the pilot light of the hot-water heater nearby and ignited.  Eisenberg's efforts to extinguish the blaze were unsuccessful and the fire spread to the ceiling and adjoining parts of his house."

 [*248]  Lloyd Eisenberg is a podiatrist.  At the time of the fire, he was on active duty as a podiatrist in the Air Force.  He had begun to equip a professional office in the basement of his home, where the fire occurred, for the private practice of his profession.  The basement contained the professional offices, recreation, utility, laundry rooms, and two hallways.  The upper floor of the house was used for the family living quarters.
We shall first consider the trial judge's charge in the light of the obligations of the defendants-appellees towards the appellant at common law, then the impact of the county fire prevention code, the trial court's rulings in connection with [***12]  the interrogatories, and finally, the questions raised as to the court's rulings on evidentiary matters.
I
The obligations owed by a property owner to a fireman who comes to the premises in the performance of his duties have been extensively considered in cases throughout the country, by the writers of legal treatises, in law reviews and by the American Law Institute.  In general, the fireman has been held to be only a licensee. Steinwedel v. Hilbert, 149 Md. 121, 131 Atl. 44 (1925); Prosser, Law of Torts, §  61 (3d ed. 1964); Note, 47 Cornell L. Q. 119 (1961). In some jurisdictions there has been a change in the legal principles held applicable; almost thirty years ago, Chief Judge Bond, in delivering this Court's opinion in Steinwedel v. Hilbert, supra, referred to the re-examination of the legal rules even then taking place.  The subject is one in which the law is developing by way of intensive analysis and modification of the applications of rigid concepts in the light of the particular circumstances involved.  The criticism of what was formerly the almost universal rule is based essentially upon making the determination of what is justice between the parties depend [***13]  upon cramming firemen into the inflexible legal category of licensee. Property owners owe licensees only the duties of abstaining from wilful or wanton injury and entrapment.  Levine v. Miller, 218 Md. 74, 78-79, 145 A. 2d 418 (1958); Crown Cork and Seal Co. v. Kane, 213 Md. 152, 157, 131 A. 2d 470 (1957). If a fireman is  [**152]  to be regarded as an invitee, the property owner owes him a duty 

 [*249]  to see that the premises are reasonably safe and to warn him of any dangerous condition known, or which reasonably should have been known to the property owner but not to the fireman. Nalee, Inc. v. Jacobs, 228 Md. 525, 529, 180 A. 2d 677 (1962); Peregoy v. Western Md. R. R. Co., 202 Md. 203, 95 A. 2d 867 (1953).
Illinois has held that the common-law rule labelling firemen as only licensees is not to be perpetuated.  Dini v. Naiditch, 20 Ill. 2d 406, 170 N. E. 2d 881 (1960). In that case, the defendants were owners and lessees of a four-story building, the first story of which was used by the owners as a store; the upper floors were used by the lessee as a hotel.  Firemen were called to extinguish a fire in the premises.  During the fire, a stairway collapsed,  [***14]  killing one of the firemen and severely injuring another.  The plaintiffs sued for wrongful death, personal injuries and loss of consortium.  There was evidence of negligence by the defendants in improperly storing paint, benzine and other flammables on the premises, in failing to provide fire doors or extinguishers, in permitting the accumulation of litter in the corridors, and in other particulars.  The trial court entered judgments for the defendants notwithstanding the jury's verdict for the plaintiffs.  The Supreme Court reversed and reinstated the verdicts, holding that the plaintiffs could recover for the defendants' failure to use reasonable care in maintaining the premises, and that the jury could have found the hazards of fire and injuries in fighting it were reasonably foreseeable. Two Justices dissented on the issue of liability. In the majority opinion, the court said:

"It is highly illogical to say that a fireman who enters the premises quite independently of either invitation or consent cannot be an invitee because there has been no invitation, but can be a licensee even though there has been no permission.  The lack of logic is even more patent when [***15]  we realize that the courts have not applied the term 'licensee' to other types of public employees required to come on another's premises in the performance of their duties, and to whom the duty of reasonable care is owed.  If benefit to the landowner is 

 [*250]  the decisive factor, it is difficult to perceive why a fireman is not entitled to that duty of care, or how the land owner derives a greater benefit from the visit of other public officials, such as postman, water meter readers and revenue inspectors, than from the fireman who comes to prevent the destruction of his property (Citations omitted).
"Consequently, it is our opinion that since the common-law rule labelling firemen as licensees is but an illogical anachronism, originating in a vastly different social order, and pock-marked by judicial refinements, it should not be perpetuated in the name of 'stare decisis.' That doctrine does not confine our courts to the 'Calf Path,' nor to any rule currently enjoying a numerical superiority of adherents.  'Stare decisis' ought not to be the excuse for decision where reason is lacking." 20 Ill. 2d at 415-16.

That case has been widely discussed.  See, in favor of the [***16]  holding, Prosser, supra; Note, 47 Cornell L.Q. 119, supra; 14 Vand. L. Rev. 1541 (1961); contra, Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N. E. 2d 38 (1963).
Minnesota has held that a fireman responding to the call of duty enters the land of another in a status sui generis, and that the occupant has a duty to warn firemen of any hidden dangers if he has knowledge of the danger and an opportunity to give warning.  Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 45 N. W. 2d 549 (1951). The duty referred to in the decision is no greater than that owed to a licensee under the Maryland law.  The sui  [**153]  generis approach is also taken in Krauth v. Geller, 31 N. J. 270, 157 A. 2d 129 (1960). See also Ann. 86 A.L.R. 2d, supra, 1212-13 and 35 Minn. L. Rev. 513 (1951).
The balancing of the scales of justice as between fireman and property owner, it is suggested, may shift with the place in which the fireman is injured and also, perhaps, with the stage in the execution of the fireman's duties when the injury occurs.  When a fire department is called to fight a blaze, the cause of the blaze is immaterial.  It may be [***17]  the result of actual negligence on the part of the property owner, such as the dropping 

 [*251]  of a lighted match, or of his negligence in the maintenance of his property, as in permitting a known defective condition of the wiring to remain uncorrected.  In either case, if the fireman is injured by the flames or gases of the conflagration, apart from unusual factors operative after the fire has begun, he can not recover.  Fighting the fire, however caused, is his occupation.  Compensation for injuries sustained in the fulfilment of his duties, absent other circumstances, is the obligation of society. n1

n1 "The burden placed upon property owners of being liable to a fireman or policeman, who comes upon private premises unexpectedly at any time of day or night to fight a fire on the owners' premises or on adjoining premises or to apprehend a criminal in his act of crime or fleeing from a crime committed on other premises, as if he were an invitee, is too great.  The benefit from the performance of the official duties of these public employees is shared by all citizens of the community and the burden of loss caused by injury should be shared by all citizens of the community through taxes.  Under these circumstances, it is appropriate that the defenses available to the political-subdivision employer should be only those available under the Workmen's Compensation Act, and that the limitations upon recovery should be those prescribed by the Legislature." Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N. E. 2d 38, 43 (1963).
Firemen in Maryland are under the coverage of the Workmen's Compensation Act, Code (1957) Article 101, Section 33.  They may also be entitled to pensions under special legislation.  Code (1957) Article 88A, Sections 40-43.  See Montgomery Co. v. Kaponin, 237 Md. 112, 205 A. 2d 292 (1964).

 [***18]  
Even though the property owner might be held liable for negligence to a business visitor injured in the resulting fire, the cases are uniform in holding that, apart from failing to warn of hidden dangers and statutory violations, he is not liable to the fireman. Scheurer v. Trustees of Open Bible Church, supra, (unguarded excavation on church property held insufficient to impose liability for injuries sustained by policeman); Krauth v. Geller, supra, (recovery denied notwithstanding the fact that nonconforming rail caused death of fireman); Baxley v. Williams Construction Co., 98 Ga. App. 662, 106 S. E. 2d 799 (1958) (recovery denied notwithstanding the fact that fireman fell into open excavation); Anderson v. Cinnamon, 365 Mo. 304, 

 [*252]  282 S. W. 2d 445 (1955) (failure to warn fireman of defective porch held insufficient to impose liability).  See Ann., 86 A.L.R. 2d 1205, 1209 (1962). n2

n2 "The general rule as to the nonliability of an owner or occupant to a paid fireman for negligence is often stated in terms of nonliability for negligence in creating or starting a fire.  *** However, it seems clear that on principle such rule of nonliability extends not only to negligence in creating or starting the fire but also includes negligence related to the spread of the fire, such as ordinary negligence in housekeeping which tends to promote the spread of a fire after its inception from other causes.  Indeed, the two situations are often indistinguishable.  *** There are certain risks inherent in fire fighting: smoke, flame, and the like.  The collapse of a floor, ceiling or wall of a burning building, without more, is a hazard a fireman must ordinarily anticipate.  Undue risk beyond these inherent hazards is something more." Jackson v. Velveray Corp., 82 N. J. Super. 469, 475, 198 A. 2d 115 (1964).

 [***19]  
It is when the fireman sustains injuries after the initial period of his anticipated occupational risk, or from perils not reasonably foreseeable as part of that risk, that  [**154]  the justice of continuing to regard him as a licensee only is questioned.
The Tentative Draft of the Restatement of Torts (Second) would make the degree of duty of the possessors of land to persons, such as firemen, entering the land in the exercise of a privilege, depend upon whether the public officer suffers harm because of a condition of a part of the land then held open to the public.  The proposed subsection reads as follows:
"(2) THE LIABILITY OF A POSSESSOR OF LAND TO A PUBLIC OFFICER OR EMPLOYEE WHO ENTERS THE LAND IN THE PERFORMANCE OF HIS PUBLIC DUTY, AND SUFFERS HARM BECAUSE OF A CONDITION OF A PART OF THE LAND THEN HELD OPEN TO THE PUBLIC, IS THE SAME AS THE LIABILITY TO AN INVITEE." Tentative Draft No. 5 (Apr., 1960).

The proposed rule would encompass the situation in Dini v. Naiditch, supra.
An example of case law applying the rule proposed in the Restatement 

 [*253]  is Meiers v. Fred Koch Brewery, 229 N. Y. 10, 127 N. E. 491 (1920) cited with other cases in [***20]  the note to the tentative redraft of the subsection.  In that case, as set forth in the note, "[t]he chief of the fire department came to defendant's brewery to extinguish a fire in the evening, when the brewery was apparently open for business.  On his way in he was injured by falling into an open coal hole in a driveway maintained for public use.  The defendant apparently did not know of his presence, and had no opportunity to warn him.  He was allowed to recover.  Stress was laid upon the fact that he was injured upon a part of the premises open for public use."
We find nothing in the decisions of this Court inconsistent with the rule proposed in the Restatement draft.  In Steinwedel v. Hilbert, supra, the appellant, a member of the Baltimore Fire Insurance Salvage Corps, in the course of his duties went to the premises occupied or owned by the defendants where a fire had originated and was injured by falling into an elevator shaft which he claimed had been negligently left open and unguarded.  It was held that, on the facts, the appellant was a licensee only and not an invitee, and that the owner or occupant of the premises was not under any duty of care to keep the premises [***21]  prepared and safe for a fireman. Judgment for the appellees on demurrer to the declaration was affirmed.  In his opinion for the Court, Chief Judge Bond referred to the fact that there was no allegation that the elevator shaft was opened in or near a way prepared and set apart as a passage way.  He discussed the Meiers case, but distinguished it on its facts.
We have recognized that there may be a change of status, "geographical or chronological", of one who starts as an invitee. Levine v. Miller, 218 Md. 74, 79, 145 A. 2d 418 (1958); Pellicot v. Keene, 181 Md. 135, 139, 28 A. 2d 826 (1942); Gordon Sleeprite Corp. v. Waters, 165 Md. 354, 358, 168 Atl. 846 (1933). See Restatement, Torts §  343 Comment b (1932).  While the cases cited deal with change of status from invitee to licensee, there is no reason in logic or justice, when circumstances warrant, why the transmutation cannot be from licensee to invitee.
In the present case, the appellant contends he was injured not because of the fire itself but because the failure of the 

 [*254]  appellees to keep the acetone in a proper container was negligence operative apart from the fire, and that this negligence [***22]  caused the injury.  There was sufficient evidence to support this theory to go to the jury, under proper instructions as to the legal effect, if any, on the issue of liability, if the jury found the facts to be in accordance with the appellant's contention.  On the assumption that the appellant's contention as to the facts is correct, he was injured not as a result of the fire itself but because of negligence of the appellees which both  [**155]  caused the fire and put into operation an active, dangerous force which operated after the fire had started.  On the other hand, the injuries were not sustained in any portion of the premises held open to the public.  The issue presented is whether the initial occupational hazard of the fire being no longer involved, the fireman retains his status as a licensee only, or whether he is entitled to the greater care due an invitee. The determination of that question depends upon whether the property owners owed the appellant a higher duty because their negligence affected him, chronologically, after the expected peril of the fire had been met, like the duty they would owe under the proposed Restatement (Second) rule, if, geographically, the [***23]  peril was in a portion of the premises publicly used.
We do not decide this issue, because we find that, even on the appellant's hypothesis as to the cause of the injury, the trial judge's instructions to the jury were as favorable to the appellant as they could have been even if his contentions as to his status as an invitee at the time of his injuries were correct.
In his charge, Judge Prendergast instructed the jury as to the legal status of a fireman when he comes upon the property for the purpose of extinguishing the blaze.  He referred to the difference in the status of a fireman in this respect from that of an invited guest in the home of the property owner and told the jury that even though the defendants might have to respond in damages to a neighbor or invited guest, if they had negligently started the fire in the first place, the plaintiff, when he came to the house to fight the fire, was in the position of a licensee. He told the jury that, because of the nature of his duties, the fireman takes the property as he finds it, subject to the usual and ordinary hazards to which firemen are ordinarily 

 [*255]  exposed.  The Judge continued: "However, if there exist unusual [***24]  or extraordinary dangers, of which the occupant is aware but of which the fireman is not, the situation may be different.  The possessor of land must exercise reasonable care not to subject the fireman to unusual danger and to see that the fireman is aware of any such unusual danger of which the landowner has knowledge and the fireman could not reasonably be expected to discover in the discharge of his duties." The Judge's instructions on this phase of the case, involving the position of the plaintiff when he came to the defendants' premises to fight the fire, was in accordance with the applicable legal principles.
Judge Prendergast then proceeded to instruct the jury as to the legal situation which would exist if they found that because of the property owners' negligence there existed a danger greater than that which is normally found in a private dwelling house.  He told the jury that, if the consequences of that danger, if it existed, were known to the defendant, Lloyd Eisenberg, or reasonably foreseeable by him, he had a duty to warn the firemen of the unusual danger and not permit them to be exposed to its consequences, if the defendant was aware of those consequences and the [***25]  plaintiff was not.  He instructed the jury that they must consider whether the danger, if any, which existed was not only an unusual and unexpected one but also whether Eisenberg knew or in the exercise of reasonable care should have known of its existence.
Judge Prendergast concluded this portion of his charge as follows:
"To summarize then, the various elements upon which the plaintiff's case depends, I suggest that you first ascertain whether the fire was started by negligence on the part of the defendant, Lloyd A. Eisenberg.  If you find that it was, then you should next inquire as to whether he had stored a quantity of flammable liquid, described as acetone, in such a place and under circumstances likely to create an unusually hazardous condition in the event that the fire should occur, and if so whether these conditions were the proximate cause of the intense heat, the accumulation  [**156]  of gases 

 [*256]  and other factors said to have produced plaintiff's injury.  If you should resolve these problems in favor of the plaintiff you must still consider whether Eisenberg knew, or in the exercise of reasonable care, should have known that the resulting injury could [***26]  probably result from his acts.  If you find that he knew or should have known and anticipated the danger and that it was unusual and not ordinarily to be expected in his home, then you may conclude that he was negligent and in that event your verdict should be in favor of the plaintiff as against him.
"On the other hand, if you do not find that he was negligent in having quantities of flammable liquids in his house or that any negligence on his part was the proximate cause of the injury or that Eisenberg did not know or should not have been aware of the resultant danger in the exercise of ordinary care, then in any of those events your verdict should be for the defendants.
"What I have said about Lloyd A. Eisenberg applies likewise to the case alleged against his wife, Diane U. Eisenberg, the other defendant."
The portion of the Judge's charge which has been quoted did not in express terms refer to the plaintiff in the situation postulated as an invitee but the duty which the Judge told the jury the property owner had to the plaintiff under the conditions set forth was the duty which a property owner owes to an invitee; it was not restricted to the limited duty to abstain from [***27]  wilful or wanton conduct and entrapment applicable to a person upon the premises as a licensee only.  In our opinion, the trial judge's instructions to the jury on this phase of the case were as favorable to the appellant as any to which he would have been entitled even under the proposed Restatement rule.  It was also as favorable to him as though that rule were extended to include the treatment of a fireman as an invitee if the assumed negligence of the property owner affected him subsequent to and apart from the expected peril of the fire itself and even though that peril was operative in a portion of the premises not held open to the public.

 [*257]  There were conflicts in the testimony as to whether or not the appellees were negligent in any way and whether, if they were, the danger to the plaintiff was reasonably foreseeable and was a proximate cause of his injuries.  Clearly, the trial court was correct in denying a directed verdict on the issue of liability in favor of the appellant.  While Judge Prendergast refused the appellant's request for instructions that the appellant was an invitee rather than a licensee, in effect, he adopted the appellant's theory of his status [***28]  in the only phase of the case in which, in our view, the appellant could properly have been regarded as an invitee.
The appellant contends that the trial court erred in refusing the appellant's requested instructions insofar as they related to proximate causation and that the Judge also was in error in his definition of the term.  In his charge, Judge Prendergast said: "'Proximate' cause means, literally, the 'next' or immediate cause of the injury, as distinguished from remote or merely possible causes."
In Holler v. Lowery, 175 Md. 149, 161, 200 Atl. 353 (1938), we said:
"There is no mystery in the doctrine of proximate cause. It rests upon common sense rather than legal formula.  Expressed in the simplest terms, it means that negligence is not actionable unless it, without the intervention of any independent factor, causes the harm complained of.  It involves of course the idea of continuity, that the negligent act continuously extends through every event, fact, act, and occurrence related to the tortious conduct of the defendant, and is itself the logical and natural cause of the injury complained  [**157]  of.  In the statement of the doctrine an intervening cause [***29]  means not a concurrent and contributing cause, but a superseding cause, which is itself the natural and logical cause of the harm.
"Those principles are implicit in these statements found in A. L. Inst. Restatement of Torts, secs. 431 and 432." 175 Md. at 161.

 [*258]  See also, W. B. Bradley v. N. H. Yates, 218 Md. 263, 270, 146 A. 2d 433 (1958), and Beale, The Proximate Consequence of an Act, 33 Harv. L. Rev. 633 (1920).
After Judge Prendergast's statement quoted above as to the meaning of proximate cause, he proceeded to apply that doctrine to the facts of the case.  In this portion of the instructions the Judge stated:

"If you believe from the evidence that the manner in which defendants kept the flammable liquids on their property not only caused the fire but also produced the tremendous heat which you heard described by some of the witnesses, and that there also resulted gases from the unburned portions of the fuel, which accumulated in pockets, as described in the expert testimony, and that the gases were suddenly released under great pressure, in a concentrated thrust of intense, moist heat, and that these circumstances caused plaintiff's injuries,  [***30]  then you may conclude that what defendants did with the flammables or acetone, was the proximate cause of the resultant injuries."
This specific application of the doctrine of proximate causation to the facts was in accord with the applicable legal principles and in all probability enlightened the jury as to the meaning of the doctrine more than would have any abstract definition.  "We have said on various occasions that the trial court's instructions must be considered as a whole; that the charge need not comply with the technical rules of formal prayers and that this Court will not condemn a charge because an isolated part of it does not seem to do justice to one side or the other or because of the way in which it is expressed.  Wilhelm v. State Traffic Comm., 230 Md. 91, 102; Lloyd v. Yellow Cab Co., 220 Md. 488, 495-496; Grier v. Rosenberg, 213 Md. 248, 257; West v. Belle Isle Cab Co., 203 Md. 244, 256." Krieger v. Baltimore City, 234 Md. 382, 385-86, 199 A. 2d 363 (1964).
We find that the trial judge's instructions to the jury under the common-law principles involved not only did not prejudice any legal rights of the appellant but were as favorable to [***31]  him, as, under the law, he had any right to expect.

 [*259]  II
The appellant contends that, apart from common-law principles, the appellees were negligent because, in storing acetone in a glass jug rather than in a metal container, they violated the provisions of the Montgomery County Fire Prevention Code, and that the Court erred in refusing the appellant's requested instructions as to the effect of such violation and in the instructions he gave in the matter.
Whether or not the defendants violated the Code depends upon a construction of its terms and a determination of the facts.  The interpretation of a statute or ordinance is for the court.  Emery v. F. P. Asher, Jr. & Sons, Inc., 196 Md. 1, 13, 75 A. 2d 333 (1950); Vogelsang v. Sehlhorst, 194 Md. 413, 419, 71 A. 2d 295 (1950). In this case, however, the trial judge was not requested to construe the provisions of the Fire Prevention Code, and no exceptions were taken to his failure to do so.  Under these circumstances, the question of whether the Judge should have gone further than he did in his charge in respect of the meaning of the terms of the Code is not properly before us for decision.  Maryland Rules 552b,  [***32]  554d; Montauk Corp. v. Seeds, 215 Md. 491, 500-01, 138 A. 2d 907 (1958).
 [**158]  The cases are not uniform as to whether a fireman is protected by a statute or ordinance requiring safety guards or precautions.  Ann. 86 A.L.R. 2d 1205, 1218-20 (1962); 47 Cornell L.Q., supra, 125-26.  See also Restatement, Torts, §  286 (1932) and Prosser, supra, at 193-96.  In his charge, Judge Prendergast told the jury that they had heard the Code read to them, that it was for them to determine whether its terms had been violated, and if they had, whether such violations were the proximate cause of the plaintiff's injury.  The fact that the court referred to the reading of the Code and its terms was an indication that it was applicable.  See Vogelsang v. Sehlhorst, supra, 194 Md. at 420. The clear purport of this portion of the charge was that if the jury found the defendants had violated the Code and that the violations were a proximate cause of the injuries, the plaintiff was entitled to recover.
In Maryland, violations of a statute or ordinance are evidence 

 [*260]  of negligence but do not constitute negligence per se. Gosnell v. B. & O. R. R. Co., 189 Md. 677,  [***33]  687, 57 A. 2d 322 (1948). See also Farley v. Yerman, 231 Md. 444, 190 A. 2d 773 (1963), and Ford v. Bradford, 213 Md. 534, 541, 132 A. 2d 488 (1957). The charge, taken as a whole, made it clear to the jury that, in determining whether or not the defendants were negligent, violations of the Code were to be taken as evidence of negligence. The questions of whether there were violations, and if so, whether the violations were the proximate cause of the injury, were questions of fact, properly left to the jury's determination.
The appellant argues that the trial judge erred in refusing his requests for instructions that the defendants, as property owners, are liable for the maintenance of a nuisance.  The term "nuisance" is generally applicable to a condition of premises unsafe in itself without other operative force.  Sherwood Brothers, Inc. v. Eckard, 204 Md. 485, 493-95, 105 A. 2d 207 (1954). In overruling objections to failure to include mere specific reference to the nuisance theory in his charge, Judge Prendergast said that the elements of nuisance which might be applicable in this case were embodied in his instructions.  We agree.
We have considered all of the appellant's [***34]  objections to the charge of the lower court and find no reversible error therein.
III
The appellant contends that the trial judge committed prejudicial error in overruling his exception to the appellees' answer to the appellant's second interrogatory. This interrogatory reads: "Name any person not heretofore mentioned or mentioned in your depositions having personal knowledge of facts material to this case." n3 The appellees answered: "None known at this time.  We intend to make additional investigations and will supply names as discovered." The appellant excepted to this answer on the grounds that it was incomplete on its face in that it did not meet the substance of the question presented, and seriously prejudiced the appellant in preparing for trial.  

 [*261]  The appellant has not demonstrated, nor does the record show that at the time of the filing of the appellees' answer to the interrogatory, they knew of anyone not theretofore mentioned who had personal knowledge of facts material to the case.  Moreover, the grounds given for the exception were not sufficiently specific.  See Wolf v. Hellman, Baltimore City Court (Daily Record, Dec. 28, 1956).

n3 Appellant's interrogatory followed the standard form suggested in Niles, Discovery Digest for Maryland 40 (1960).

 [***35]  
Two of the appellant's interrogatories asked for a statement of facts upon which the appellees planned to rely to show the appellant's contributory negligence.  The appellees answered in effect that at the  [**159]  time they had no facts on this issue other than those adduced in the depositions, but that a further investigation was being made, and any further relevant facts produced by it would be furnished.  The trial court overruled the appellant's exceptions to the answer, but ordered the appellees to supply any additional information obtained by them by a date fixed prior to trial. We think this disposition of the matter was fully in accord with the intent and spirit of the Maryland discovery rules.  The appellant was protected against surprise and was given an adequate period for preparation prior to trial if alleged new facts were furnished on the issue.  The appellant has not properly raised in this Court any contention that the trial court's order was violated by the appellees, or if it was, that the violation was properly called to the court's attention by a timely objection at trial.
IV
The appellant contends that a memorandum of recorded statements of the firemen [***36]  as to what took place at the scene was improperly admitted.  The trial court ruled that it was admissible under the business records exception to the hearsay rule, Code (1957) Article 35, Section 59.  The statements contained in the memorandum were shown to have been made at the station house immediately following the return of the firemen from the fire.  The pencilled notes were later typed and placed in the fire marshal's file.  The fire marshal was called to testify and it was through him that the statements were admitted.  Only the statements of the firemen who had testified or were then present in the courtroom were admitted.  Appellant's counsel stated that 

 [*262]  he had seen the statements prior to the time that they were offered into evidence.
We think this evidence was admissible under the business records statute.  The fire marshal testified that the report was kept in his files, that it was a record regularly kept by the Fire Department in the course of business and that the photostatic copy offered in evidence was an accurate reproduction of the notes in his file.  The requirements of Section 59 were fully met.  See Beth. Shipyard v. Scherpenisse, 187 Md. 375,  [***37]  50 A. 2d 256 (1947); Powell, Admissibility of Hospital Records into Evidence 21 Md. L. Rev. 22, 30 (1961). Appellant argues that the record was inadmissible because there were inconsistencies between the statements attributed to certain witnesses in the report and their testimony in court.  We have consistently held that the weight to be accorded evidence is for the jury.  Capitol Traction Co. v. McKeon, 132 Md. 79, 86, 103 Atl. 314 (1918) and cases cited therein.
The appellant further contends that the trial court committed reversible error in overruling his objection to a question put to the appellee, Lloyd Eisenberg, on direct examination, as to whether or not he had personal knowledge of the existence of the Montgomery County Ordinance which prescribed the manner in which acetone was to be stored.  The appellant, as part of his case, had introduced evidence tending to show that the appellee knew that he had violated the Montgomery County Fire Prevention Code.  Officer Treadwell had testified on behalf of the appellant to the effect, at least by inference, that Eisenberg had been arrested for violation of the Code and had paid a fine for the violation.  It was proper under [***38]  such circumstances for the appellee to explain his conversation with the officer.  Evidence which explains facts already in evidence is relevant and therefore admissible.  Morrow v. Arthur, 134 Md. 182, 106 Atl. 356 (1919). The appellant's objection to the appellee's testimony was properly overruled.
The appellant argues also that it was prejudicial error for the trial court to admit testimony by the fire marshal, over objections, that acetone was sold on the retail market in glass containers, that this was the prevalent practice in this county, 

 [*263]   [**160]  and that his office, which was charged with the enforcement of the Fire Prevention Code, had taken no action to prevent the practice.  This testimony had been previously given by the fire marshal in a deposition; on the stand he testified somewhat differently.  The appellees had unsuccessfully objected to the admission of the Code, and there was a dispute between counsel as to the meaning of its terms.  If the ordinance was ambiguous, evidence of the practice in respect of its enforcement was some evidence of administrative construction.  See Smith v. Higinbothom, 187 Md. 115, 48 A. 2d 754 (1946); Frederick  [***39]   County Com'rs. v. Board of Education of Frederick County, 175 Md. 277, 1 A. 2d 628 (1938). As we have noted above, no objection was taken to the failure of the trial court to charge the jury as to the meaning of the Code, nor was there a request made by the appellant for such a construction prior to the charge.  Under the circumstances, we find no prejudicial error in the admission of the testimony.
Judgment affirmed, with costs to the appellees.  

137 of 138 DOCUMENTS 

MAGED, et al. v. THE YELLOW CAB COMPANY, et al.  

No. 104, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 340; 206 A.2d 257; 1965 Md. LEXIS 727 

January 5, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed January 21, 1965, Denied January 22, 1965.  

PRIOR HISTORY:
Appeal from the Superior Court of Baltimore City; Jones, J.  

DISPOSITION:
Judgment affirmed; appellants to pay the costs.  

HEADNOTES:

Evidence -- Where Answer To Interrogatories Denied Existence Of Written Records Made In Ordinary Course Of Business, Memorandum of Telephone Conversation Should Not Have Been Admitted Into Evidence -- Error Was Not Prejudicial Here.  The appellant in the instant case brought suit for injuries sustained by her when the cab in which she was riding allegedly made a sudden stop.  Over objection, the trial court, despite the fact that the appellees, in answer to interrogatories, had denied the existence of written records made in the ordinary course of business, permitted the claim manager to produce a memorandum he had made of the telephone conversation between the appellant and a company employee.  It was held that this was error, but that the use of the memorandum was not so prejudicial as to require a reversal. Ordinarily, statements in regard to an accident, regardless of who made them, should not be admitted in evidence when the existence of any such statement has been denied.  [***2]  However, the Court held that since the statement of the appellant to the claim manager, which was properly admissible for purposes of impeachment, was practically the same as the statement recorded in the memorandum, there was in this case no showing of prejudice on this point.
Evidence -- Discovery -- Personal Injury Suit Against Cab Company -- Failure To Require Company To Produce Driver's Written Report Was Not Shown To Have Been Prejudicial -- Appellant May Have Waived Right To Discovery.  In the instant suit for injuries sustained by the appellant when the cab in which she was riding allegedly made a sudden stop, she contended that the trial court should have required the cab company to disclose the written report (if in fact there was one) the driver made to his employer.  The Court stated that all that the record showed was that the cab driver said he made a written report and that appellant's counsel inquired as to its whereabouts and demanded its production.  Appellee's counsel, however, ignored the request, and the court did not require its discovery. When the written report was not forthcoming appellant's counsel, instead of demanding that the witness not be allowed [***3]  to give further testimony, that he be temporarily withdrawn until the report was produced, or, if need be, that the case be postponed, proceeded to further examine the witness as to what was in the report.  The appellant may thereby have waived her right to discovery of the written report. But it was held that in any event, if a written report was available, its nondisclosure was not shown to have been prejudicial. The cab driver testified that he slowed down to avoid a motor vehicle coming out of a parking lot, and this was contradictory of appellant's statement that he came to a sudden stop or made a fast start.  It was for the jury to decide the weight of the evidence given by the cab driver and the appellant.
Evidence -- Of Previous Claims Made By Appellant Against Appellee And Admission Of Appellee's Claim File Held Not Prejudicial Here.  In the instant suit for injuries by the appellant against a cab company, the Court stated that while they would assume for the purposes of this case that the cross-examination of the appellant as to previous claims she had made against the company and the admission in evidence of the company's claim file were irrelevant and immaterial [***4]  and therefore improper, they felt that neither was prejudicial. The admission therefore, of such evidence would not constitute a ground for reversal. In the Court's opinion the admission of the claim file was harmless in view of the fact that it only disclosed that although a complaint had been made, no claim was made since no injury was sustained and therefore no damages were ever paid.
Cross-Examination -- Appellant Held Not To Have Been Unduly Restricted In Cross-Examination Of Witness.  

SYLLABUS:

Action by Frieda Maged, and others, against the Yellow Cab Company, and others, for injuries sustained by her when she was a passenger in one of the defendant's cabs.  From a judgment for costs entered on the jury verdict for the defendants, the plaintiffs appeal.  

COUNSEL:
Paul F. Due, with whom was Alfred F. Walker on the brief, for appellants.
Frederick J. Green, Jr., with whom were Alva P. Weaver, III and Lord, Whip, Coughlan & Green on the brief, for appellees.  

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

OPINIONBY:
HORNEY 

OPINION:

 [*342]   [**258]  In this tort action by Frieda Maged (plaintiff or passenger)  [***5]  against the Yellow Cab Company (defendant or cab company) for injuries sustained by her when the cab in which she was riding allegedly made a sudden stop, the questions on appeal concern the admissibility of evidence and the restricting of cross-examination of a witness.  Isaac Maged, the husband of the passenger, was also a party plaintiff, and Lester C. Spittel, the cab driver, was also a party defendant.  From a judgment for costs entered on the jury verdict for the defendants, the plaintiffs appealed.
The passenger entered the cab on Howard Street in Baltimore City and directed the driver to take her to a dress shop on North Charles Street.  According to the passenger, as the cab reached its destination, the driver had difficulty bringing it to a stop.  When he stopped, the stop was so sudden that she was thrown off the rear seat against the side of the cab and 

 [*343]  onto the floor.  As a result of the occurrence, she injured her elbow and forearm.  According to the cab driver, as he approached the dress shop, he observed a motor vehicle coming out of a parking lot near the shop and slowed down as a precautionary measure, but kept on going when the other vehicle yielded [***6]  the right of way.  At no time did he have difficulty stopping, and he denied bringing the cab to a sudden stop.
The day after the occurrence, the claim manager of the cab company made a memorandum of a telephone conversation between the plaintiff and an employee in the company claim department in which it was recorded that the passenger had said that the cab made a sudden stop because of a "car either going [in] or coming out of [the] parking lot." The next day the head of the claim department visited the passenger at her home and obtained a statement signed (but not read) by her affirming that the cab "either made a sudden stop or a fast start" to avoid striking a motor vehicle coming out of the parking lot.
Prior to the trial, the defendants, in answer to interrogatories served on the cab company and driver by the plaintiffs, stated that an "oral report only" had been made by an employee of the cab company in the ordinary course of business with respect to the occurrence; that it had "no other knowledge *** [of the] alleged accident"  [**259]  other than that the "passenger was paying her fare when *** the driver was advised that [she] had bruised her arm" whereupon [***7]  "the driver offered to render assistance"; and that the cab driver had made an "oral report" of the injury sustained by the passenger.
At the trial of the case, the plaintiff, although readily admitting that other portions of the written statement she had given the claim manager were correct, categorically denied, on both direct and cross-examination, that she had told the claim manager anything about a motor vehicle coming out of a parking lot. While still on cross-examination, the plaintiff admitted making a prior claim against the cab company and being paid for a shoe cut as the result of stepping on broken glass inside a cab. She denied, however, having made a complaint to the cab company about another sudden stop several years before for which no claim was made because there had been no injury.
Also at the trial, the cab driver, contrary to the answers to 

 [*344]  the interrogatories, testified on direct examination, that he had made a report in writing of the passenger's complaint to him.  While he testified to this, there was an intimation that he may have been mistaken.  Although inquiry was made as to the whereabouts of the written report if there was one, it was not [***8]  produced.  Instead counsel for the company suggested that the passenger should seek discovery under the applicable rules of procedure, but this was not done.
After the passenger and cab driver had testified, the cab company called its claim manager. Over objection, the court, despite the fact that the defendants, in answer to the interrogatories, had denied the existence of written records made in the ordinary course of business, permitted the claim manager to produce the memorandum he had made of the telephone conversation between the plaintiff and a company employee.  The court also allowed the cab company, over objection, to introduce evidence from its claim files tending to impeach the testimony of the plaintiff denying that she had ever made a previous complaint based on a sudden stop.
When the claim manager was cross-examined as to whether he had received any information, either verbal or in writing, from the cab driver before obtaining the written statement from the passenger, he replied that he did not recall.  Then, when he was asked whether he remembered that the cab driver, while testifying, had denied that the incident occurred in the manner described in plaintiff's [***9]  statement, counsel for the cab company objected and the objection was sustained.  When asked if he remembered receiving either a verbal or written report from the driver respecting the complaint of the passenger, the witness replied, after an objection to the question was overruled, that he did not recall a report from the driver "coming through in the ordinary course of business." Except for inquiries as to what was ordinarily done with reports received in the ordinary course of business, that ended the cross-examination.
In essence, it is contended on appeal that the trial court erred: (i) when it permitted the cab company to produce and use the memorandum of the telephone conversation between the plaintiff and a claim department employee and did not require the company to disclose the written report of the cab 

 [*345]  driver; (ii) when it admitted evidence of a previous complaint the plaintiff had made concerning another sudden stop for which no claim was made; and (iii) when it refused to allow unrestricted cross-examination of the claim manager with regard to inconsistencies between the testimony of the cab driver and the answers to the interrogatories, on the one hand, and [***10]  the statement taken by the claim manager from the passenger, on the other hand.
(i)
The first contention of the plaintiff, and the one on which the most emphasis  [**260]  was placed, is that it was error for the trial court, in view of the answers to the interrogatories, to permit the production and use of the memorandum of the telephone conversation as evidence.  We agree.  The record, however, shows that its use was not so prejudicial as to require a reversal.
The memorandum, which for the purposes of this case we assume was a record made in the ordinary course of business, should have been disclosed in answer to the interrogatories and its admission into evidence was improper.  Although it is said that the standard form of interrogatory (seeking statements or reports made by an employee in the ordinary course of business n1) has generally been interpreted by some members of the legal profession as requiring only the reports of drivers with respect to the manner in which the occurrence took place, we think the interrogatory is broad enough, when used in a case such as this, to require the disclosure of all statements and records pertaining to the occurrence made in the ordinary [***11]  course of business (with certain exceptions not here present).  Ordinarily, statements in regard to an accident, regardless of who made them, should not be admitted in evidence when the existence of any such statement has been denied.  Even so, since the statement of the plaintiff to the claim manager that the "cab either made a sudden stop or a fast start" to avoid a car coming out of a parking lot -- which under the ruling laid down in Sun Cab Co. v. Cusick, 209 Md. 354, 121 A. 2d 188 (1956), 

 [*346]  was properly admissible for purposes of impeachment -- is practically the same as the statement recorded in the memorandum to the effect that the cab made a sudden stop to avoid "a car either going [in] or coming out of [the] parking lot," there was in this case no showing of prejudice on this point, and we so hold.

n1 See Suggested Form No. 15 in the footnotes to Discovery Rule 417 h on p. 166 of Vol. 9B of the Maryland Code.

Although the passenger further contends that the court should have required [***12]  the cab company to disclose the written report (if in fact there was one) the driver made to his employer, the failure to do so was likewise not prejudicial under the circumstances.  All that the record shows is that the cab driver said he made a written report and that counsel for the plaintiff inquired as to its whereabouts and demanded its production.  Counsel for the cab company, however, ignored the request, and the court did not require its discovery. When the written report was not forthcoming, counsel for the plaintiffs, instead of demanding that the witness not be allowed to give further testimony, that he be temporarily withdrawn until the report was produced, or, if need be, that the case be postponed, proceeded to further examine the witness as to what was in the report.  The plaintiff may thereby have waived her right to discovery of the written report. In any event, if a written report was available, its nondisclosure has not been shown to have been prejudicial. The cab driver testified that he slowed down to avoid a motor vehicle coming out of the parking lot, and this was contradictory of the plaintiff's statement that he came to a sudden stop or made a fast start.  [***13]  It was for the jury to decide the weight of the evidence given by the cab driver and the passenger.
In ruling that the use of the memorandum of the telephone conversation and the failure to make discovery of the alleged written report of the driver was not prejudicial in the case at bar, we should not be understood as approving the practice of answering interrogatories in an evasive manner and then producing evidence to the contrary at the time of trial.  See Barnes v. Lednum, 197 Md. 398, 406, 79 A. 2d 520 (1951).
(ii)
The plaintiff, relying on Kantor v. Ash, 215 Md. 285, 137 A. 2d 661  [**261]  (1958), contends that it was error for the trial court 

 [*347]  to admit evidence to show that on a prior occasion she had, contrary to her testimony on cross-examination, complained about a sudden stop made by another Yellow cab. While we shall assume for the purposes of this case that the cross-examination of the plaintiff as to previous claims she had made against the company and the admission in evidence of the claim file were irrelevant and immaterial and therefore improper, we think it is apparent that neither was prejudicial. The admission therefore of such evidence [***14]  would not constitute a ground for reversal. Kennedy v. Crouch, 191 Md. 580, 62 A. 2d 582 (1948). As we see it, the admission of the claim file was harmless in view of the fact that it only disclosed that although a complaint had been made, no claim was made since no injury was sustained and therefore no damages were ever paid.
As the cases collected in the annotation in 69 A.L.R. 2d 593, 611, show, the propriety of admitting evidence of previous claims and actions depends on the facts in each case and generally turns on whether the evidence, if irrelevant or immaterial, is prejudicial. For cases holding that prejudice resulted from the admission of wholly collateral evidence of prior claims or injuries, see Kantor v. Ash, supra, and Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230, 4 A. 2d 440 (1939). See also Gordon v. Checker Taxi Co., 79 N. E. 2d 632 (Ill. 1948), where cross-examination of plaintiff as to a prior accident, although proper, was held to be prejudicial when additional proof was not offered.  For cases holding that proof of prior claims was proper, see Mintz v. Premier Cab Ass'n., 127 F. 2d 744 (D. C. Cir. 1942), and Evans v. Greyhound [***15]  , 200 A. 2d 194 (D. C. Ct. App. 1964). In the Mintz case, it was held that the line of questioning as to prior claims was admissible and that it was a jury question as to whether the plaintiff was merely unlucky or claim-minded.  Since there was no showing of prejudice in the case at bar, the error, if any, was harmless. Cf. Hughes v. Averza, 223 Md. 12, 161 A. 2d 671 (1960).
(iii)
The final contention of the plaintiff that the court was in error when it refused to allow unrestricted cross-examination of the claim manager also lacks substantial merit.

 [*348]  As we read the record, the plaintiff was not unduly restricted in her cross-examination of the claim manager. The only objection sustained was an inquiry as to whether he recalled that the cab driver had denied that the incident had occurred in the manner described in the passenger's statement.  Certainly the jury was well aware by the time the claim manager was called as the last witness that the out-coming vehicle had yielded the right of way to the cab; that the cab had slowed down to avoid a collision, according to the driver; or that the cab either made a sudden stop or a fast start, according [***16]  to the passenger. Any further testimony as to the alleged inconsistencies would only have been cumulative.
Judgment affirmed; appellants to pay the costs.  

138 of 138 DOCUMENTS 

MARTIN MARIETTA CORPORATION et al. v. LEIUS 

No. 102, September Term, 1964 

Court of Appeals of Maryland 

237 Md. 217; 205 A.2d 792; 1965 Md. LEXIS 710 

January 4, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Cardin, J.  

DISPOSITION:
Order reversed, with costs, and order of the Compensation Commission reinstated.  

HEADNOTES:

Workmen's Compensation -- Compensation Commission -- Medical Board -- Judicial Review Of -- Finality Attaches To Decision Of Commission.  In workmen's compensation cases the finding and report of the Medical Board for Occupational Diseases is subject to review by the Compensation Commission, and "finality, in so far as the legislature can make final the decision of an administrative tribunal, attaches to the decision of the Commission, not to the decision of the Medical Board." When, as now, the ultimate decision is confided to the Commission, its determination is final and is not to be reversed by the courts if there was before it evidence legally sufficient to support that determination, even though a contrary finding reasonably could have been made, and even if the reviewing court, had the choice been its to make, would have made such a contrary finding.
Workmen's Compensation -- Evidence Held Sufficient To Support Finding Of Compensation Commission That Claimant Did Not Sustain Occupational Disease Arising Out Of, And In Course  [***2]   Of, Employment.  In this workmen's compensation case the Court held the evidence before the Compensation Commission to be legally sufficient to support its finding that the claimant did not, as a fact, sustain an occupational disease arising out of, and in the course of, her employment.  There was conflicting testimony, lay and medical, and the Commission evidently chose to believe and rely upon the opinion of an experienced and recognized medical expert on skin diseases, arrived at after several examinations and careful tests, to the effect that the claimant's working conditions and undertakings did not cause the dermatitis from which she suffered.  The Commission may accept such competent and credible testimony as legally sufficient, and if it does, its decision is not to be reversed by the courts on appeal.  

SYLLABUS:

Proceeding to obtain workmen's compensation benefits by Jacqueline Leius, claimant, opposed by Martin Marietta Corporation, employer, and the Continental Casualty Company, insurer.  The Medical Board for Occupational Diseases found that the claimant had suffered an occupational disease, but the Compensation Commission held to the contrary.  From an order reversing [***3]  the Commission and reinstating the finding of the Medical Board, the employer and insurer appeal.  

COUNSEL:
Alfred M. Porth, with whom was Robert E. Cadigan on the brief, for the appellants.
Alexander Stark, with whom was Benjamin K. Sugar on the brief, for the appellee. 

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

OPINIONBY:
HAMMOND 

OPINION:

 [*218]   [**792]  The Medical Board for Occupational Diseases found that the appellee, Jacqueline Leius, had suffered an occupational disease, dermatitis, resulting in a permanent partial disability to the extent of five per cent loss of use of each hand.  The Compensation Commission held that Mrs. Leius had not sustained an occupational disease and, on appeal, Judge Cardin, sitting without a jury, reversed the Commission and reinstated the finding of the Medical Board.
The claimant argued below and argues here that the constant use, in the course of her work, of a special ink which was part of a duplicating and copying process, and of a detergent to remove 

 [*219]  the ink from her hands, produced the dermatitis. The employer and insurer contend, first, that [***4]  Mrs. Leius' dermatitis was not a compensable condition because she had not met the burden a claimant has, under Code (1957), Art. 101, Sec. 23 (c), and decisions of this Court, such as Mutual Chemical Co. v. Thurston, 222 Md. 86, of showing that it was characteristic of and peculiar to her employment, and, second, that even if the dermatitis could be said to be an occupational disease there was legally sufficient evidence to support the finding of the Commission to the contrary and, therefore, the lower court, on appeal, could  [**793]  not substitute its judgment for that of the administrative body.
We shall assume, without deciding, that the claimant's dermatitis could properly have been found to be an occupational disease, since we think there was legally sufficient evidence before the Commission to support its finding that Mrs. Leius did not, as a fact, sustain an occupational disease arising out of and in the course of her employment and, this being so, the action of the lower court, in reversing that finding, was impermissible.
Under the law as it now is and was before June 1, 1951, the finding and report of the Medical Board is subject to review by the Commission, and [***5]  "finality, in so far as the legislature can make final the decision of an administrative tribunal, attaches to the decision of the Commission, not to the decision of the Medical Board." Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, 189 Md. 147, 154. Between June 1, 1951, and June 1, 1955, the Legislature gave almost complete finality to the finding of the Medical Board by providing (in Sec. 28 of Art. 101 of the Code of 1951) that upon review by the Commission "*** the findings of the Medical Board upon all medical questions shall be presumed to be correct and such findings shall not be set aside or reversed if there is legally sufficient evidence in the record to support such findings." But, as was said in Duncan v. McNitt Coal Co., 212 Md. 386, 395, as to the ultimate power of the Compensation Commission in occupational disease cases before June 1, 1951, and after June 1, 1955: "*** it is clearly the decision of the Commission, not of the Medical Board, which is now under review."
It is established that when, as now, the ultimate decision 

 [*220]  is confided to the Commission, its determination is final and is not to be reversed by the courts if there was before [***6]  it evidence legally sufficient to support that determination, even though a contrary finding reasonably could have been made and even if the reviewing court, had the choice been its to make, would have made it.  Duncan v. McNitt Coal Co., supra; Mutual Chemical Co. v. Thurston, supra. In Thurston we said (pp. 94-95 of 222 Md.):
"We are not required, however, to determine whether the Board and Commission arrived at the correct conclusion or whether we would arrive at a different one.  Duncan v. McNitt Coal Co., 212 Md. 386, 129 A. 2d 523 (1957). Nor is it the function of this Court to pass upon the weight of the evidence or resolve the conflicts in the testimony of the expert medical witnesses.  Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, 189 Md. 147, 55 A. 2d 507 (1947). Indeed, the statute specifically provides that 'in all appeals in which occupational diseases are involved, the findings of fact by the Commission shall be final and not subject to review or modification by the court.' Art. 101, supra, sec. 56 (a).  This does not mean -- since the sufficiency of evidence is a matter of law -- that the Commission's findings are not subject to review if [***7]  they are not supported by the evidence produced.  Duncan v. McNitt Coal Co., supra. But it does mean that our review is limited to the question whether there was 'some evidence or legally sufficient evidence' to support the findings of the Commission that the claimant had sustained a compensable occupational disease. Beechwood Coal Co. v. Lucas, 215 Md. 248, 137 A. 2d 680 (1958)."
In the case before us there was conflicting testimony, lay and medical.  The Commission evidently chose to believe and rely on the opinion of an experienced and recognized medical expert on diseases of the skin, arrived at after several examinations and careful tests, that Mrs. Leius' working conditions and undertakings did not cause the dermatitis from which she suffered.  

 [*221]  The Legislature and this Court have said  [**794]  that the Commission may accept such competent and credible testimony as legally sufficient and that if it does, its decision is not to be reversed by the courts on appeal.
The order of the Baltimore City Court appealed from must be reversed and the order of the Commission disallowing Mrs. Leius compensation reinstated.
Order reversed, with costs, and order  [***8]   of the Compensation Commission reinstated.