author: Melvin, J.,

text:
    RANDY JAY GOLDBERG v. STATE OF MARYLAND
    [No. 186,
    September Term, 1978.]

      Decided January 10, 1979.

    The cause was submitted on briefs to Gilbert, C. J., and Melvin and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Bradford C. Peabody, Assistant Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Diane G. Goldsmith, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Thomas Morrow, Assistant State’s Attorney for Baltimore County, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On October 18, 1977, Randy Jay Goldberg, the appellant, was found guilty by a jury in the Circuit Court for Baltimore County, of rape in the second degree (Art. 27, Section 463 (a) (1)). The appellant was sentenced to a five year term, of which the first two years were to be served in a work release program at the jail and the remaining three years on probation.

On appeal the appellant contends that:

1. the evidence was insufficient to sustain his conviction;
2. the court erred by not, sua sponte, declaring a mistrial;
3. the court erred in denying a motion to suppress an oral statement made by appellant at the time of his arrest.

I

The eighteen year old prosecuting witness was a high school senior who worked part-time as a sales clerk in the Merry-Go-Round clothing store at Towson Plaza. Around 1:00 P.M., on August 10, 1977, she was at work when the appellant, aged twenty-five, entered the store. The prosecuting witness started out trying to sell the appellant clothing but ended up being sold a story by the appellant that he was a free-lance agent and thought she was an excellent prospect to become a successful model. They arranged to meet at 5 o’clock when she got off from work.

When the appellant returned for her at 5:00 P.M., she asked him for “any ID to show me if you are who you say you are”. He showed her his driving license with his picture on it. This satisfied her: “Well, I figured that he wouldn’t... if he was planning to harm me in any way ... wouldn’t give his name like that, and I figured that, you know, he was who he said he was. I believed him”. Despite some cautioning from her employer she drove off with the appellant at 5:10 P. M. in a silver-grey Cadillac Eldorado. The appellant was actually a student at Catonsville Community College and the car belonged to his mother. Appellant told her he was taking her to “a temporary studio” in the Pikesville area. When the “studio” was found to be closed, they drove to a condominium building on Slade Avenue. Upon arrival there she stayed in the car while appellant went inside. Shortly, he returned to the car and told her he had contacted a friend who said they could use his house for his “studio”. When they arrived at the friend’s house, she helped appellant find a door that was open. The door led to the kitchen which she described as “very dirty” and she “didn’t, you know, understand why we were coming here”. From the kitchen they walked into the bedroom which by contrast she described as being “really made up really nice” with “a queen sized bed, real big bed, with a red velvet bedspread, and a big backboard on the back.” She was “pretty impressed by the room”.

Soon after they entered the bedroom, appellant “motioned” her to sit beside him on the bed. Instead, she sat on a chair at the foot of the bed. Appellant then said it was hot in the room and took his shirt off. When asked her reaction to appellant’s removing his shirt she responded: “He told me he was hot, so I figured — so I figured he was hot”. She then stood up and appellant “came over to me and he started unbuttoning my blouse. He said this is what I want you to do”. She pulled her blouse together and said “no”. Asked to describe what happened next she said:

“He just kept on smooth-talking me and saying I won’t hurt you. This is what I do to all the models that I interview. And he, you know, started motioning me to take my blouse off and everything, and then I went through the same thing with every piece of clothing. It was like, you know, kept on trying to tell me to take it off, and I didn’t want to. And he kept on trying to convince me that — he was still trying to convince me that this was this modeling job, and I knew that it wasn’t any more.” (Emphasis added.)

She said she removed her clothes because she “was really scared of him”. “There was nothing I could do”. When asked what caused her fright she said: “Because he was — he was so much bigger than I was, and, you know, I was in a room alone with him, and there was nothing, no buildings around us, or anything, and I mean wouldn’t helped if I wouldn’t — help me if I didn’t. It was like being trapped or something”. On cross-examination she said she was “afraid” she was “going to be killed”.

After her clothes were removed, the appellant “pushed” her down on the bed and tried “to move [her legs] in different ways, and [she] kept pulling them together, and telling him that [she] didn’t want to do it, and just wanted to go home”. He kept telling her that he wouldn’t hurt her “and just to relax”. But she was “just really scared” and she was “shaking and my voice was really shaking” and she “kept on telling him [she] wanted to go home”, and that “[she] didn’t want to do this”; that she “didn’t want to be a model, and [she] didn’t want to do it any more. Just to let [her] alone”. When asked, “And what was his reaction?”, she testified as follows:

“A. He was just — he was just really cool about the whole thing, telling me not to worry, and he wouldn’t hurt me, and to relax.
Q. All right. Now, after you were on the bed, and he was moving your legs around, what, if anything, occurred next?
A. Well, he kept on trying to make me get in different positions, and kept on telling me to look sexual or something like that. I don’t know what the word was.
Q. All right. And what, if anything, occurred after he said that?
A. He laid me down and placed his hands on my vagina and told me he was doing that to make me relax. I told him that it didn’t make me relax.
Q. All right. Then what happened after he placed his hands on your vagina?
A. He went into the other room, and I couldn’t see him. He wasn’t facing me, and had his back to me, and his hands down by his belt buckle. And I realized what he was doing, and I jumped up grabbed my clothes and started putting them on.
Then he came in and pulled them away from me and said no.
Q. What did he say?
A. He said don’t worry. What are you doing that for. I am not going to hurt you, and he kept telling me just to relax, and not to be nervous. And he laid me down on the bed and tried to get me to that stuff again, and I told him I didn’t want to do that.
Q. What happened then?
A. And then he put his arms up on my stomach and his torso was in between my legs. He said just take your time; take a- deep breath. And then he moved up on me and placed his penis in my vagina.
Q. What were you doing when this occurred?
A. I squeezed my legs together and got really tense, and I just started crying real hard. And I told him not to do that to me.
Q. And what was his response?
A. He didn’t say anything. Just stayed there. And then I felt him move.
Q. How long was he on top of you?
A. Not very long.
Q. How long was he moving?
A. I guess for about two minutes, and then I felt him. Just for about two minutes.
Q. Did the Defendant ejaculate to your knowledge?
A. Yes, I think he did.
Q. Now, what, if anything, occurred after the Defendant ejaculated?
A. He got up and he said that if I can’t enjoy it, then he can’t enjoy it.”

The appellant then asked her to go to dinner with him but she declined and he drove her to her home where she lived with her parents. On the way home, the appellant gave her his telephone number which she wrote down on a piece of paper. At his request she gave him her telephone number by writing it on a piece of paper with her lipstick. Although she told him she “would never see him again”, she said she gave him her correct telephone number because she “didn’t want to get him suspicious of me”. They had a “general conversation about sex” in which he told her that “girls act like they don’t want to, but they really do”. She told him that he “had the wrong impression of [her]”; that she “didn’t want him to do that”. She further testified, somewhat inconsistently, as follows:

“I told him I didn’t want that. I told him I didn’t like him doing that to me, and didn’t let him. I didn’t make him think that I enjoyed all of it, and that I ever wanted to do it again, because I know I would never do it again. Never. I know I would never get near him again.” (Emphasis supplied).

The appellant let her off at her home at 6:25 P. M., 1% hours after she left her place of employment with him at 5:10 P. M. Before the appellant drove off she told him to “drive home safely ... I guess I was being more sarcastic than anything”. She estimated that they had been at the house where the alleged rape took place for 30 minutes.

When she arrived inside her house she “walked straight pass my parents” to her upstairs room. She said nothing to them because she was “just scared, nervous, just, you know, I wanted to go upstairs and just clean myself up and just forget, you know, about it. Just think”. After cleaning herself and using a contraceptive, she called her boyfriend on the telephone and talked to him for “about three minutes”. She did not tell him “what happened” because she “didn’t know how he would take it”. She then called her girlfriend and told her that she “had a problem, and that I was raped today . . . .” She did not relate the details of the “rape”. She told her girlfriend not to tell anybody and not to tell her girlfriend’s boyfriend, “but she told him anyways”. She contemplated calling the police but said she “didn’t know who to call”, so she called her girlfriend back and asked what she should do. Shortly thereafter the girlfriend and the girlfriend’s boyfriend came to her house and after picking up her own boyfriend the four young people eventually went to the police station where the “rape” was reported at approximately 9:00 P. M. According to the girlfriend, the prosecuting witness did not want to report the matter but “,[w]e convinced her into going to the police”.

After reporting the incident the prosecuting witness was taken to the Greater Baltimore Medical Center for a physical examination. The examining physician’s “Impression” was “Recent sexual intercourse”, but he found “no evidence of recent trauma” to any part of her body, including the “perineal and genital” areas.

Testifying in his own behalf, the appellant admitted having sexual relations with the prosecuting witness at the time and place alleged, but maintained that it was mutually consensual and that the prosecuting witness did not appear to be frightened at any time.

II

Prior to 1976, the Maryland rape statute was primarily a sentencing law, fixing the penalties without actually defining the crime. The common law definition of rape that has been applied in Maryland is: “the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim”. Hazel v. State, 221 Md. 464, 468-469, 157 A. 2d 922 (1960).

By Chapter 573 of the Laws of 1976, effective July 1,1976, the Legislature divided the crime of rape into “rape in the first degree” and “rape in the second degree”. See Art. 27, § 462 (first degree rape) and § 463 (second degree rape), (Md. Code, 1957, 1976 Repl. Vol., 1978 Cum. Supp.). Section 463 provides, inter alia, that,

“A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the consent of the other person

Section 462 deals with first degree rape and provides, inter alia, that,

“A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person and:
(3) threatens or places the victim in fear that the victim ... will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping .. .”.

Section 464E of the new Act provides that,

“Undefined words or phrases in this subheading [Sexual Offenses] which describe elements of the common law crime of rape shall retain their judicially determined meaning except to the extent expressly or by implication changed in this subheading”.

The terms “force,” “threat of force,” “against the will” and “without the consent” are not defined by the 1976 Act. We therefore look to the “judicially determined meaning” of these elements of the common law crime of rape. In doing so, we conclude that the evidence was legally insufficient to sustain the conviction and the judgment will be reversed. We reach this conclusion because on the record before us, viewing the evidence in the light most favorable to the State, we find legally insufficient evidence of the requisite element of “force or threat of force”.

There was certainly no “threat of force”. On the contrary, the prosecuting witness on numerous occasions in her testimony negated that element. As to actual force, the only arguable evidence is the prosecuting witness’ testimony that after she herself had removed all her clothes, the appellant put his hands on her shoulders and “pushed” her down on the bed. This is negated, however, by her further testimony on cross-examination that “he didn’t push but guided [her] on the bed”. She admitted that she was not “injured or anything” by the encounter. This, of course, is consistent with the findings of the physician who subsequently examined her. Those findings so far as they relate to the use of any actual force were completely negative. But actual physical force is not an indispensable element of the crime of rape.

As said by the Court of Appeals in Hazel v. State, supra, at 469:

“Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances. . . . [F]orce may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force. State v. Thompson, 227 N. C. 19, 40 S. E. 2d 620 (1946). See also State v. Dill, 3 Terry 533, 40 A. 2d 443 (Del. 1944); 75 C.J.S., Rape, § 12b; 44 Am. Jur., Rape, § 5. Cf. Selvage v. State, 148 Neb. 409, 27 N. W. 2d 636 (1947). (Emphasis added.).
“With respect to the presence or absence of the element of consent, it is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent. State v. Thompson, supra; State v. Dill, supra.
“The authorities are by no means in accord as to what degree of resistance is necessary to establish the absence of consent. However, the generally accepted doctrine seems to be that a female who was conscious and possessed of her natural, mental and physical powers when the attack took place must have resisted to the extent of her ability at the time, unless it appears that she was overcome by numbers or was so terrified by threats as to overpower her will to resist. Am. Jur., Rape, § 7. Since resistance is necessarily relative, the presence or absence of it must depend on the facts and circumstances in each case. See Kidd v. State, 97 Okla. Crim. 415, 266 P. 2d 992 (1953). But the real test, which must be recognized in all cases, is whether the assault was committed without the consent and against the will of the prosecuting witness. (Emphasis added.)
“The kind of fear which would render resistance by a woman unnecessary to support a conviction of rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist. State v. Hoffman, 228 Wis. 235, 247, 280 N. W. 357 (1938).”

Applying these principles to the present case, we hold that the evidence is legally insufficient to warrant a finding by the jury that the prosecutrix exerted the necessary degree of resistance that was overcome by force or that she was prevented from resisting by fear based upon reasonable apprehension of bodily harm.

The State argues that the “totality of [the] circumstances” caused the prosecutrix’s fear of being killed and that the fear was a reasonable fear, thus rendering more resistance than that exerted by her unnecessary. First of all, we find nothing in the record evidencing any real resistance by the prosecutrix to anything the appellant said or did. It is true that she told the appellant she “didn’t want to do that [stuff]”. But the resistance that must be shown involves not merely verbal but physical resistance “to the extent of her ability at the time” (Hazel v. State, supra, at 460). The State points to her testimony that when penetration occurred she “squeezed [her] legs together and got really tense”. Assuming that this was evidence of her reluctance, even unwillingness, to engage in vaginal intercourse, it was not evidence that she resisted “to the extent of her ability” before the intercourse occurred.

We are left therefore with the question of whether the prosecutrix’s lack of resistance was caused by fear based upon reasonable apprehension of physical harm. We find no legally sufficient evidence warranting an affirmative answer to that question. As we said in Winegan v. State, 10 Md. App. 196, 200, 201, 268 A. 2d 585 (1970):

“... [W]here the victim’s story could not be corroborated by wounds, bruises or disordered clothing, the lack of consent could be shown by fear based upon reasonable apprehension. The rule requiring the apprehension be reasonable was first enunciated in Maryland in Hazel v. State, 221 Md. 464, 469, 157 A. 2d 922:
‘If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.’
“The rule of reason, as we shall call it, was reiterated, either expressly or impliedly, by us in Walter v. State, supra, [9 Md. App. 385, 264 A. 2d 882 (1970)] and Rice v. State, supra, [9 Md. App. 552, 267 A. 2d 261 (1970)]. It is expressly supported by several cases throughout the country. [Citations omitted]”.

On the record before us, we find the evidence legally insufficient to warrant a conclusion that the appellant’s words or actions “were reasonably calculated to create in the mind of the victim” a reasonable fear that if she had resisted he would have harmed her, or that, faced with such resistance, he would have used force to overcome it. The prosecutrix swore that the reasons for her fear of being killed if she did not accede to appellant’s advances were two-fold: 1) she was alone with the appellant in a house with no buildings close by and no one to help her if she resisted, and 2) the appellant was much larger than she was. In the complete absence of any threatening words or actions by the appellant, these two factors, as a matter of law, are simply not enough to have created a reasonable fear of harm so as to preclude resistance and be “the equivalent of force”. {Hazel v. State, supra, at 469.) Without proof of force, actual or constructive, evidenced by words or conduct of the defendant or those acting in consort with him, sexual intercourse is not rape. This is so even though the intercourse may have occurred without the actual consent and against the actual will of the alleged victim. Thus it is that in the absence of actual force, unreasonable subjective fear of resisting cannot convert the conduct of the defendant from that which is non-criminal to that which is criminal.

Ill

As the judgment of conviction must be reversed for insufficiency of the evidence, it is not necessary to decide the other two questions presented by this appeal. With respect to the third question (propriety of the trial court’s denial of a motion to suppress an oral statement made by appellant at the time of his arrest) we have assumed that the ruling was correct and have considered the oral statement as part of the evidence in the case. When the arrest warrant was served on the appellant, he said, according to the arresting officer, “£S]omeone must be playing a joke on me. I don’t even know the girl”. Appellant challenged the admissibility of the statement on the ground that the State had failed to properly comply with the Maryland Rules concerning discovery in criminal cases. The trial court denied the motion to suppress. At trial the appellant testified that when he read the warrant he “was floored at first” because he didn’t recognize the prosecutrix’s last name. He said he did not recall, but did not deny, making the statement to the arresting officer. While this evidence may have been regarded by the jury as affecting the appellant’s credibility, it does not affect our conclusion that the evidence as a whole was legally insufficient to sustain his conviction of rape in the second degree.

Judgment reversed.'. Costs to be paid by Baltimore County.

      . .See “Rape and Other Sexual Offense Law Reform in Maryland, .1976-1977”, 7 U. Balt. L. Rev. 151 (1977).

      . In the instant case, the first count of the six count indictment charged rape in the first degree. This count was “withdrawn” by the State before trial. This would seem to be a concession by the State that it lacked legally sufficient evidence that vaginal intercourse occurred because of any threats or acts on the part of the appellant that placed the prosecuting witness “in fear” that she would be “imminently subjected to death” or “serious physical injury”. There was no concession, however, of the absence of “force or threat of force” that are essential alternative elements of rape in the second degree. Also, of course, the fact that the first count was withdrawn did not preclude the State from offering proof of first degree rape in its attempt to prove the lesser included offense of second degree rape.

      . I.e. force beyond what is involved in the very act of intercourse itself. See Perkins on Criminal Law, p. 162 (2nd ed. 1969).

      . We note that at the close of all the evidence, the court granted defendant’s motion for judgment of acquittal as to the third count of the indictment (third degree sexual offense, Art. 27, § 464B) and that the fifth and sixth counts (assault with intent to rape and common law assault, respectively) were nol prossed by the State. As noted, supra, the first count (first degree rape) was “withdrawn” before the trial began. The case went to the jury, therefore, on the second count (second degree rape) and the fourth count (fourth degree sexual offense, Art. 27, § 464C) of the indictment. The verdict of the jury, however, was rendered only “as to Count Two, rape in the second degree”. There was no verdict rendered or taken as to the fourth count. The trial court in its final instructions to the jury told the jury that “if your verdict is guilty of [rape in the second degree], then you should not consider the Fourth Count [fourth degree sexual offense]. It would merge”. Assuming under proper circumstances that the lesser crime does merge into the greater crime, there must first be a verdict as to both crimes in order to invoke the doctrine of merger. The “merging” is done by the court, not the jury. Here, without a verdict on the lesser charge, there was nothing to merge. We are therefore precluded from considering the legal sufficiency of the evidence as to the fourth degree sexual offense, a crime which we note does not require proof of “force” to sustain a conviction. We think the better practice in cases such as this is to instruct the jury to render a separate verdict on each count submitted to the jury and allow the court to merge the “mergeable” offenses.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    WILLIAM J. HANRAHAN v. TOBY ALTERMAN et al.
    [No. 269,
    September Term, 1978.]

      Decided January 10, 1979.

    The cause was argued before Gilbert, C. J., and Moore and Lowe, JJ.

      William J. Chen, Jr., for appellant.

      Albert D. Brault, with whom were Brault, Graham, Scott & Brault on the brief, for appellees Alterman, Kenton, Lederer, Mrazek, Muller, Smith and Cartledge. Edward L. Genn for other appellees.
   Moore, J.,

delivered the opinion of the Court.

Appellant, a defeated candidate, challenges the validity of the May 1977 Village Council election of Friendship Heights and The Hills, a special taxing district located in Montgomery County near the District of Columbia boundary line. The appellant’s principal contention in his petition below was that the election was conducted in a manner which violated certain provisions of the Fair Election Practices Act. Md. Ann. Code art. 33, §§ 26-1 to -21 (1976 & Supp. 1978). Pursuant to Section 26-18 of the Act, appellant sought an “inquiry” into the election as well as a declaration that it was null and void. In addition, the petition prayed that the respondents, the seven successful candidates, be declared ineligible for election or for appointment to any public office or employment as a consequence of their alleged violations, pursuant to the penal provisions of the statute. The lower court (Cahoon, J.) granted a motion for summary judgment filed by respondents and by both the Village Council and the Special Taxing District as intervenors. In an oral opinion, followed by a written order, it was held that Article 33 was neither applicable to the Friendship Heights election by statutory enactment nor incorporated by reference by either the Montgomery County Code or the Rules and Procedures of Friendship Heights. We affirm.

I

The villages of Friendship Heights and The Hills derived their status as a special taxing district from a public local law, Chapter 131 of the Laws of 1914. This law, as amended, is codified in Chapter 66 of the Montgomery County Code of 1972 (1978). The district’s governing body is the Village Council, composed of seven members, who serve without compensation for two-year terms. Each member, as a “Village Councilman,” must be a registered and qualified voter of Montgomery County, residing in Friendship Heights. Montgomery County Code § 66-4 (1978). The powers of the Council primarily involve the “opening, improving, widening, maintenance, repairing and lighting the streets, roads, lanes, alleys, sidewalks, parking, drainage, sewerage, sanitation, and other village improvements and for furnishing police and fire protection, clerical and other public service, including the removal of ashes, garbage and other refuse and the disposal thereof.” Montgomery County Code §§ 66-2, 66-9 (1978). To finance the performance of these responsibilities, the local newsletter reflected that the Council proposed a budget for the fiscal year 1978 that provided for total revenues of $437,700 and total expenditures of $449,185.

The provisions of the public local law governing election to the Village Council are codified as Section 66-4 of Chapter 66 of the County Code.

“Sec. 66-4. Village council Election; oath of office; vacancies.
On the second Monday in May in the year 1923, and on the same date in every second year thereafter, an election shall be held in the villages for the election of seven members, each of whom shall be a registered and qualified voter of Montgomery County residing in the villages, to be and constitute the ‘Friendship Heights Village Council’ for the next succeeding two years, and until their successors duly qualify, each of whom shall qualify on or before the fourth Monday in May thereafter by taking an oath, before an officer of the law duly commissioned to administer same, to diligently and faithfully discharge the duties of the office. In case any such person so elected as village councilman fails to qualify within the time hereinbefore mentioned, or in case of any vacancy through death, resignation or otherwise, the county council shall fill the vacancy by the appointment of a registered and qualified voter of Montgomery County residing in the villages, who shall hold office for the term or unexpired term. The election of the village councilmen as herein provided, shall be held under and in accordance with the laws of the State of Maryland, but the returns thereof shall be made to the county council of Montgomery County. All registered and qualified voters of Montgomery County residing in the villages are eligible to vote at the elections; the election shall be conducted by at least four judges of election and at least four clerks, and whatever assistant judges and clerks as may be necessary, to be appointed by the village council, who shall serve with appropriate compensation. The polls of the election shall be open from seven A.M. to eight P.M., on the second Monday iñ May as hereinbefore provided. However, the foregoing hours may be modified by the county council by resolution, upon request of the Friendship Heights Village Council.” (Emphasis added.)

The subject of elections was covered also in Rules and Procedures adopted by the Friendship Heights Citizens Committee, the Council’s predecessor, on March 11, 1974. According to the preamble, these rules were designed “as a guide for the administration of [the] villages----[and were] not intended to be binding on future Committees.” Article II thereof, entitled “Election,” provided in Section I that the election of the Committee “shall be conducted under provisions of Chapter 66-Section 4 of the Montgomery County Code, Article 33 of the Code of Maryland and these Rules and Procedures.” Subsequent sections of the election article related to: notice (at least 90 days prior to the election); nomination (by at least 10 registered and qualified voters, filed 30 days prior to the election, accompanied by the candidate’s certificate of acceptance); proof of qualification for voting (two weeks prior to the election, names of prospective voters must appear on a list of registered and qualified voters furnished by the Montgomery County Board of Election Supervisors); method of voting (by machine or paper ballots); place of voting; election officials (judges and clerks selected by the Committee); poll watchers (appointed by candidates to observe voting and counting); counting of ballots (by judges and clerks); certifying and reporting of ballots (notification of certified election returns by incumbent chairman to the Montgomery County Council); voting by ill and disabled persons (entitlement to vote as absentee voter); voting by persons absent from the Washington Metropolitan area (following absentee voting procedures outlined in Section II of the Rules and Procedures and in Article 33 of the Code of Maryland); emergency absentee ballots (procedure for absentee voting “[wjithin a period of seven days prior to an election and up to and on the day of the election but prior to the time the polls close”).

The 1977 election was held on May 9, 1977. Early notice of the election was given in the 1976 year-end report of the Chairman of the Council, Dr. Alfred Muller, to Friendship Heights residents. It was stated therein that the election would be held “under the provisions of Chapter 66, Section 4 of the Montgomery County Code, Article 33 of the Code of Maryland.” However, the Board of Election Supervisors for Montgomery County — the body designated by Article 33 to supervise all elections within its coverage — did not deem the election within its jurisdiction. The League of Women Voters of Montgomery County agreed to supervise it. In a letter from the League to Dr. Muller dated March 22, 1977, the League stated its understanding that “[o]ur responsibilities, [are] based on the provisions of Chapter 66, Section 4 of the Montgomery County Code, Article 33 of the Code of Maryland, and the Rules and Procedures of the Friendship Heights Citizens Committee.” The specific undertakings of the League included: 1) the printing of 2200 ballots; 2) printing a form for absentee ballot requests, handling requests for absentee ballots, and confirming the eligibility of absentee voters; 3) establishing a voter list for residents of Friendship Heights, as of two weeks prior to the election; 4) supplying 8 election day workers, to be on the premises between 7 a.m. and 8 p.m.; 5) counting and certifying the ballots; and 6) helping to publicize the election.

Nine candidates filed for the seven seats. In the election, appellant and Margaret Ann Duruz Wessely, an incumbent member of the Council, were defeated, The appellant received 101 votes, the lowest number cast for any candidate, while the defeated incumbent received 131 votes. The highest and lowest vote tally for the successful candidates were 398 and 251, respectively.

Within thirty days of the election, appellant instituted suit pursuant to Section 26-18 of Article 33, alleging irregularities in the conduct of the election by the seven successful candidates. The list of alleged infractions included: 1) the publication and distribution of a sample ballot without identification of an authorized agent; 2) the publication and distribution of a sample ballot which was intended to, and did, confuse voters; 3) failure to appoint a campaign treasurer; 4) failure to identify a campaign treasurer on literature distributed prior to and on the day of the election; 5) improper use of absentee ballots; and 6) failure to file certificates of acceptance of nomination. The appellant also contended that the election was conducted in violation of the Friendship Heights Village Council’s Rules and Procedures.

The lower court, after sustaining appellant’s demurrers without leave to amend, granted a summary judgment stating that:

“the rights of the parties are not governed by the provisions of Article 33 of the Annotated Code of Maryland, 1976 Replacement Volume, as amended, either by statutory enactment or by reference to the said Article 33 in the election rules of the Village Council, in that the election sub curia is a ‘municipal’ election exempted from the provisions of said Article and that the election is governed and controlled by the specific provisions of Section 66-4, Montgomery County Code____”

II

It is appellant’s position, precisely stated in his reply brief, that five words in the public local law governing the election to the Village Council, adopted and incorporated by reference the entire Maryland Election Code as contained in Article 33 and its thirty-one subchapters. The alleged incorporating words are “under and in accordance with,” contained in the following sentence of Section 66-4 of the Montgomery County Code:

“The election of the village councilmen as herein provided, shall be held under and in accordance with the laws of the State of Maryland, but the returns thereof shall be made to the county council of Montgomery County.” (Emphasis added.)

Before proceeding to assess the validity of appellant’s contention with respect to the doctrine of legislative incorporation by reference, we deem it important to make this threshold observation: by the definition contained in Section 1-1 (a) (6) of Article 33, an election is “the process by which voters of the State, or any county or city thereof, vote for any party or public officer. . . .” Municipal elections are specifically excluded by the final sentence of the definition which reads:

“It does not mean any municipal election other than in Baltimore City unless otherwise specifically provided for in this article.” (Emphasis added.)

We are confronted, therefore, initially with a question as to the status of a special taxing area for purposes of Article 33. The Municipal Corporation article of the Maryland Code specifically excludes “any special taxing area or district” from the definition of municipal corporations. The Court of Appeals has had occasion in the recent past to consider the status of the Friendship Heights Special Taxing District. In Barlow v. Friendship Heights Citizens' Committee, 276 Md. 89, 92, 344 A. 2d 415 (1975), Judge Singley noted that the District, by statutory definition, is not a municipal corporation “nor can it be, because it exercises no political powers.” He went on to say that “[i]f the Committee can be categorized at all, it would be as a quasi-municipal corporation, to which has been transferred a segment of the State’s power, in order that a particular purpose may be accomplished.” (Emphasis added.) Id. at 92-93.

In the instant case, the lower court held, and we think correctly, that if the term “election,” as defined in Article 33, was not applicable to municipal corporations (except Baltimore City), then perforce it would be inapplicable to the special taxing area of Friendship Heights. As the court observed:

“It would seem incongruous for the legislature to have excluded from its regulatory process the elections to municipal corporations proper but to include the more limited form of political subdivisions of quasi municipal corporation.”

Our concurrence that Article 33 is by definition inapplicable to the special taxing area of Friendship Heights, except when otherwise specifically provided, is not, however, dispositive of this appeal. The question remains whether, as also contended by appellant, the General Assembly of Maryland incorporated Article 33, including subtitle 26, the Fair Election Practices Act, when it enacted Chapter 131 of the Laws of 1914, as amended, and as codified in Chapter 66 of the Montgomery County Code.

Ill

The law recognizes “a special class of related statutes,... the relationship [between which] results from the fact that one statute adopts the terms of the other without restating them. Incorporating statutory provisions by reference, partially or entirely, into legislation has been long recognized as an acceptable practice on both the state and federal levels unless prohibited by constitutional provisions. “The purpose of incorporating, [adopting,] or referring to prior statutes is to avoid encumbering the statute books with useless repetition and unnecessary verbiage.” When passed, the incorporated act becomes a part of the incorporating legislation; it is as if the incorporated act was specifically written into the law.

Reference statutes may be either specific — reference by title or section number — or general — reference to the general law on the subject. Unless altered by statute, as in Maryland, the substantial difference between these two types of related statutes is that a general reference statute incorporates in its coverage all subsequent amendments and modifications to the incorporated act while specific reference statutes do not. It is settled that although general reference statutes are permissible, the language of incorporation must be specific enough to inform the citizenry of the applicability of the incorporated provisions. This is particularly essential as a matter of due process of law when the incorporated statute contains penal provisions. An alleged incorporation of penal provisions must be strictly construed.

The question before us in the instant appeal is whether the language contained in the public local law contains sufficient specificity to qualify as a general incorporation of Article 33, in its entirety, as contended by the appellant. Again, to refer to the alleged incorporating language, Section 66-4 provides with respect to the election of Friendship Heights Councilmen as follows:

“The election of the village councilmen as herein provided, shall be held under and in accordance with the laws of the State of Maryland, but the returns thereof shall be made to the county council of Montgomery County.” (Emphasis added.)

It is our conclusion that the emphasized language is not sufficiently specific to accomplish the result strenuously asserted by appellant. First, it is appellant’s argument that the language “under and in accordance with the laws of the State of Maryland” is meaningless unless it applies to the totality of Article 33. We point out that the alleged incorporating language does not refer to “general election laws” as was the case in Mayor and Town Council of Landover Hills v. Brandt, infra, and that furthermore, there are numerous “laws of the State of Maryland” contained in the Maryland Constitution and the Annotated Code, other than Article 33, which refer to elections. These include many provisions which would scarcely affect special taxing area elections but a significant number which very well might be applicable: the Constitution of Maryland, Art. I, §§ 1-7; Art. II, §§ IB-4 (Executive Department); Art. Ill, §§ 3, 6, 7, 42, 47, 49 (Legislative Department); Art. IV, §§ 3, 11, 12, 41, 44 (Judiciary Department); Art. V, §§ 1, 2, 7, 8 (Attorney General and State’s Attorneys); Art. VI, § 1 (Treasury Department); Art. VII, §§ 1, 2 (Sundry Officers); Art. XI, §§ 1,3 (City of Baltimore); Art. XIV, § 1 (Amendments to the Constitution); Art. XV, §§ 4, 7 (Miscellaneous); Art. XVI, § 5 (The Referendum); Art. XVII, §§ 1,2 (Quadrennial Elections); Annotated Code of Maryland, Art. 2B, § 88 (1976 & Supp. 1978) (restrictions on sale of alcoholic beverages on election days); Art. 27, § 28 (1976) (bribery, etc. of voters), § 452 (1976) (placing political posters, etc. in certain counties prohibited); Art. 41, § 15D (1978) (election of Lieutenant Governor), § 59 (1978) (clerical help for election business); Art. 59A, § 35 (Supp. 1978) (voting rights of the mentally retarded); Md. [Cts. & Jud. Proc.] Code Ann., §§ 3-503 to -504 (1974) (liability of broadcasting stations for defamatory statements of candidate (or others) for public office); municipal elections are governed by specialized provisions Art. 23A, §§ 2 (29), 19,19A, 25, 29, 30, 40, 41, 45, 46, 47 (1973 & Supp. 1978) and Art. 23B, §§ 25-42 (1973 & Supp. 1978).

Secondly, appellant contends that his position on the issue of incorporation by reference is supported by the cases of Mayor and Town Council of Landover Hills v. Brandt, 199 Md. 105, 85 A. 2d 449 (1952), and Hill v. Mayor and Town Council of Colmar Manor, 210 Md. 46, 122 A. 2d 462 (1956). We disagree. The Brandt case presented a challenge to the correctness of a judicial recount declaring that appellee was the duly elected Mayor of the Town of Landover Hills in the May 1951 election. The sole question on appeal was whether Article 33 provisions for court review of contested elections were adopted by reference. Judge Henderson, speaking for the Court, pointed out that Article 33, as then written, governed all cases of contested elections and provided for an appeal to the Court of Appeals. It was held that these provisions for judicial review were “adopted by reference” by Chapter 465, Acts of 1945, the public local law incorporating .the town of Landover Hills. Section 12 thereof authorized the .appointment of judges of elections and then provided that:

“[T]he rules and procedure of conducting the election shall be governed by the general election law of the State of Maryland on any question not provided for in this charter(Emphasis added.)

199 Md. at 108. Appellant concedes that the alleged incorporating language in the instant case stating that the election of councilmen “shall be held under and in accordance with the laws of the State of Maryland” is not as specific as that in Brandt. We quite agree and find, for this reason among others, that his reliance upon Brandt is misplaced.

Similarly unavailing is Hill v. Town of Colmar Manor, 210 Md. 46, which presented a question as to whether write-in votes in a town election were proper and should have been counted. The issue arose in a mandamus proceeding to require the Mayor and Town Council to count write-in votes cast for appellants for the offices of mayor and councilman in the Third Ward, the appellants having failed to follow the procedures prescribed by the town charter that their names be printed on the ballot. The trial court sustained a demurrer to the appellants’ petition and the Court of Appeals reversed. In an opinion by Judge Bruñe, it was disclosed that the trial court had rejected the contention that the provisions of then Section 68 of Article 33 of the Code, permitting write-in votes, had been incorporated by reference by Section 377 of the public local laws establishing the town. The pertinent language of Section 377 of the town charter was as follows:

“All elections for town purposes shall as nearly as practicable be conducted as are elections for county officers in Prince George’s County, except as herein provided.”

Id. at 54. In holding that the write-in votes for the appellants were proper and should have been counted, the court pointed out that the case turned on the sufficiency of the language used in the above quoted incorporating provision of Section 377. After holding that the language was adequate for incorporation, the court pointed out that the clause in the Colmar Manor Charter was broader than that contained in the Charter of Landover Hills. Id. at 58. In our judgment, the language is also more encompassing than the five words upon which appellant relies here.

At all events, the basic test as to the sufficiency of incorporating language is that of legislative intent. As Judge Bruñe stated in Colmar Manor:

“The question is one of legislative intent, not of constitutional right nor yet of legislative power. A rule under which the effectiveness or extent of incorporation by reference of one statutory provision into another would depend upon whether the matter to be incorporated is minor or procedural on the one hand, or major or substantive on the other, would lead to endless confusion. The Landover Hills and the Blunt Cases do not rest upon such a rule or distinction; each rests upon the interpretation of the language used in the light of the circumstances surrounding its use.”

Id. at 57-58.

Before turning to the question of legislative intent, we feel the present.case should be placed in proper prospective, vis-á-vis Brandt and Colmar Manor. Here, appellant claims that the entire elections code, not some specific section as in the cases cited, is imported into the provisions of the public local laws establishing Friendship Heights. According to appellant’s theory of the case, not only Chapter 26, the Fair Election Practices Act — the alleged violations of which are essentially involved in the petition filed below — but a significant number of the 31 chapters of Article 33 are applicable to this special taxing district.

We are unable to accept the suggestion that a legislative body which was so specific in its exclusion of municipal elections, in the absence of specific inclusion, thereafter intended to incorporate Article 33 by such a scanty provision as that which here confronts us, We are reinforced in our rejection of any such notion by the realization that the special taxing district here involved, although receiving some significant revenues and making proportionate expenditures on an annual basis, is yet small in geographic area and population, and limited in its governmental authority; and its elections attract an exceedingly small number of voters, approximately 400 in 1977. It hardly comports with logic or sound public policy that the enormous regulatory framework of the Maryland Election Code was intended by the legislature to be applicable in such circumstances

Perhaps most importantly, we cannot find that the General Assembly intended to incorporate by reference the penal provisions of the Fair Election Practices Act contained within sections 26-16 (b), 26-18 (g), and 26-20, Candidates who violate these provisions face one or more of the following penal sanctions: a $1,000 fine; a one-year imprisonment term; and a four-year period of ineligibility for any public or party office. As mentioned previously, due process guarantees require that the applicability of penal provisions be explicitly set forth by the legislature so that the public be made clearly cognizant of their existence and scope; We must reject appellant’s contention that the general and nebulous statutory language upon which he relies, is constitutionally sufficient notice of the criminal laws and penalties to which appellees subject themselves by their candidacies.

It may be, as appellant suggests, that the existing laws relating to the election of the Friendship Heights Council are not commensurate with its growth and development. This, however, is a matter to be addressed to the General Assembly of Maryland for appropriate amendment to the public local law; and it is not for this Court to fill any legislative gaps which may exist.

We deem appropriate a final word with respect to the references to Article 33 in the Rules and Procedures of Friendship Heights. Although the District may have implied power to adopt such Rules and Procedures, a question we do not decide, the references therein to Article 33 are obviously ineffective to make the State Code legally enforceable. The Friendship Heights Council is totally lacking in the power either to enact an election code or to incorporate one by reference. Not even the county has the power to legislate in this field since it has been pre-empted by the State. County Council for Montgomery County, Maryland v. Montgomery Association, 274 Md. 52, 333 A. 2d 596 (1975). Furthermore, to the extent that the petition below was based upon alleged violations of the Rules and Procedures, we observe that no sanctions are prescribed for violation of their provisions.

Judgment affirmed; appellant to pay the costs.

      . Md. Ann. Code art. 33, § 26-16 (b) (1976).

      . Appellant’s petition contained two counts. The first count sought relief under Article 33, Section 26-18. The second count alleged a violation of constitutional rights “to vote, to have a fair election, to have votes counted fairly, and to have votes cast fairly, [pursuant to] Article 7 of the Declaration of Rights of Maryland, Article I of the Constitution of Maryland, Article IV of the Constitution of the United States, and Amendments V, IX, X, XIV, XV, and XIX to the Constitution of the United States____” The order signed by the court after its rendition of its oral opinion provided that Count II be severed for separate trial pursuant to the provisions of Maryland Rule 501(a) and further ordered, pursuant to Rule 605(a), that final judgment be entered in favor of the respondents and intervenors as to Count I, with an express determination that there was no just reason for delay in the entry of said final judgment. Accordingly the appeal is before us, and properly so, solely under Count I.

      . As hereinafter discussed, it is appellant’s contention on this appeal that the above sentence to which emphasis has been added adopts and incorporates by reference Maryland Annotated Code, Article 33 in its entirety; and that the exclusion of “any municipal election other than in Baltimore City” from the definition of “Election” contained in Article 33, Section 1-1 (a) (6) is of no consequence.

      . The defeated incumbent filed an action in the Circuit Court for Montgomery County in Law No. 47107, prior to the filing of appellant’s petition. The case, however, was settled and withdrawn and a settlement "Memorandum of Understanding” was entered into between her and Friendship Heights and the Friendship Heights Village Council in which Wessely’s reasons for withdrawing her suit were specifically set forth. While she maintained that Article 33 of the Code was made applicable to the 1977 Election for the Village Council by virtue of Section 66-4 of the Montgomery County Code and Art. II, Sec. 1 of the Rules and Regulations of the Council, she, nevertheless, was persuaded that because of the significant difference between the votes received by the successful candidates, “it [would be] improbable that the Court would set the election aside, even if it should find that the election has not been conducted in strict accord with the election laws.” In contrast, the position of the District and Council set forth in the same settlement memorandum was that no violations had occurred, the Rules and Procedures were not “to incorporate all aspects of the election laws of the State of Maryland,” and “the differences of substance between the [State and the District did] not warrant the total application of [the] detailed election laws ... particularly because to do so might inhibit persons from coming on to the Council or participating in local government.”

      . The Court of Appeals has made the following distinction between a public local law and a public general law:
      “£I]t may be said that a ‘public local law’ is a statute dealing with some matter of governmental administration peculiarly local in character, in which persons outside of that locality have no direct interest, and a ‘public general law’ is one which deals with a subject in which all the citizens of the state are interested alike, and the fact that it permits or directs differences in matters of mere administrative detail suited to the peculiar needs of localities does not make it any the less a public general law.”
      Norris v. Baltimore, 172 Md. 667, 681, 192 A. 531 (1937). See also 2 Sutherland Statutory Construction §§ 40.02, 40.08 (4th ed. 1973).

      . The application of specific provisions of Article 33 to incorporated municipalities is illustrated by Section 29-10 (financial disclosure act requirements, substantially the same as the subtitle, to be enacted by each county of the state, the city of Baltimore, and each of the incorporated municipalities); and Section 30-2 (disclosure by persons doing public business with the state, county, incorporated municipality, or other political subdivision of the state). It is interesting to note that notwithstanding the general exemption of municipal elections contained in the definition, in at least one instance, a subchapter is again specifically placed outside the scope of municipal elections. See Section 27-3 providing that the provisions of Chapter 27, relating to absentee voting, apply “to elections of all candidates, constitutional amendments and other questions ... but, with the exception of Baltimore City, [do] not include municipal elections in any municipal corporation.”

      . For a discussion on the role of special districts in government, see D. Bowen & R. Friedman, Local Government in Maryland, in 3 Studies in Government 119 (Univ. of Md. 1955).

      . Md. Ann. Code art. 23A, §§ 1-48 (1973 & Supp. 1978).

      . Md. Ann. Code art. 23A, § 9 (a) (1973). The court, in Neuenschwander v. Washington Suburban Sanitary Commission, defined a municipal corporation as, “a department of the government of the State, created by the Legislature with political powers to be exercised for the public welfare.” 187 Md. 67, 74, 48 A. 2d 593 (1946).

      . One authority has defined quasi-municipalities as:
      “£T]hose organizations which are deemed corporations but which are held not municipal corporations, strictly speaking, but which resemble municipal corporations in some respect.... [A] quasi-municipal corporation is a public agency created or authorized by the legislature to aid the state in, or take charge of, some public or state work, other than community government, for the general welfare.... They are bodies which possess a limited number of corporate powers and which are low down in the scale or grade of corporate existence, and consist of various local government areas established to aid the administration of public functions.”
      E. McQuillin, 1 The Law of Municipal Corporations § 2.13 at 151 (3d ed. 1971). Although special districts are not, “in the strict sense,” municipalities, they may be considered to be municipal corporations for the purpose of particular statutes or constitutional provisions. Unfortunately, there are no general rules to determine such instances. The determination depends on the specific issue involved in conjunction with the legislative intent when using the term municipality. See id. §§ 2.20, 2.23, 2.27, 2.28.

      . The Court’s narrow holding in Barlow was that the Friendship Heights Village Council (then called “Committee”) had the implied power to sue on behalf of the special taxing area if it believed that its monies had been diverted to the benefit of individual members of the Committee or improperly expended. See also Friendship Heights v. Funger, 265 Md. 339, 289 A. 2d 329 (1972), in which the Court affirmed a holding that Friendship Heights lacked capacity to bring an action for declaratory judgment with regard to agreements concerning zoning and approved master plans. It was held that "Jwjhile the [Council] is empowered to make certain public improvements, nowhere is it expressly given the power to sue and be sued.” Id. at 342. However, the question of implied power to sue for breach of a contract was expressly reserved.

      . We reject out of hand appellant’s argument that in Reeder v. Board, 269 Md. 261, 305 A. 2d 132 (1973), the Court of Appeals interpreted the definition of “election” in Article 33 so as to include local elections, without restriction, and that Article 33, in its entirety, is applicable to such elections. There, the appellant, a property owner in, although a nonresident of, Queen Anne’s County challenged the refusal of the Board of Supervisors of Elections of the County to register him to vote “on local issues and offices only.” Despite the specific inclusion of county elections in Article 33 coverage, the appellant nevertheless argued that county elections were excluded because they were municipalities. The court refused to accept this interpretation because of the specific inclusion of counties in the definitional provision and various other sections. Furthermore, the case held that the constitutional qualifications for voting in Maryland — there, the requirement for local residence — as contained in Article 33, Sections 3-4 (a) and (b) (4) — are applicable to all elections. Such a conclusion is ineluctable. Clearly, also, the disqualifications contained in Section 3-4 (c) (conviction of crime) and Section 3-4 (d) (persons under guardianship) would be inherently applicable to all elections by “qualified” voters in this State, the definitional exemption of municipal elections in Section 1-1 (a) (6), notwithstanding.

      . The Attorney General has recognized that a municipality may incorporate by reference specific provisions of Article 33 so as to render them applicable to municipal elections. 42 Op. Att’y Gen. 177, 178 (1957).

      . See generally 2A Sutherland Statutory Construction § 51.07 (1973).

      . In Maryland see Hill v. Mayor and Town Council of Colmar Manor, 210 Md. 46, 122 A. 2d 462 (1956); Mayor and Town Council of Landover Hills v. Brandt, 199 Md. 105, 85 A. 2d 449 (1952); Wilkinson v. McGill, 192 Md. 387, 64 A. 2d 266 (1949). See also Werntz v. Jennings, 101 A. 2d 806 (Del. 1954); General Installation Co. v. University City, 379 S.W.2d 601 (Mo. 1964); State v. Mitchell, 181 S.W.2d 496 (Mo. 1944); Knowles v. Holly, 513 P. 2d 18 (Wash. 1973); Roehl v. Public Utility District No. 1 of Chelan County, 261 P. 2d 92 (Wash. 1953).

      . Hassett v. Welch, 303 U. S. 303 (1938); Engel v. Davenport, 271 U. S. 33 (1926); Director, Office of Workers’ Compensation Programs v. Peabody Coal Co., 554 F. 2d 310 (7th Cir. 1977); United States v. Morrison, 581 F. 2d 1089 (1st Cir. 1976); Somermeier v. District Director of Customs for the Port of Los Angeles-Long Beach, 448 F. 2d 1243 (9th Cir. 1971); Yarborough v. United States, 230 F. 2d 56 (4th Cir. 1956); Young v. United States, 178 F. 2d 78 (9th Cir. 1950); Kissane v. City of Anchorage, 159 F. Supp. 733 (D. Alaska 1958); Government of Guam v. Kaanehe, 137 F. Supp. 189 (D. Guam 1956).

      . 82 C.J.S. Statutes § 71 (1953). See Werntz v. Jennings, 101 A. 2d at 809; State v. Lee, 66 S.W.2d 521, 523 (Mo. 1933).

      . 82 C.J.S. Statutes §§ 70, 370 (1953); Young v. United States, 178 F. 2d at 80. Government of Guam v. Kaanehe, 137 F. Supp. at 190; General Installation Co. v. University City, 379 S.W.2d at 604-05; Knowles v. Hollv. 513 P. 2d at 22.

      . See, e.g., Young v. United States, 178 F. 2d 78 (9th Cir. 1950) (“ ‘[ejxcept as otherwise provided in this chapter, the administrative, definitive, and penal provisions under sections * * *, 712-715, * * * of this title shall be for application under this chapter’ ”).

      . See, e.g., Kissane v. City of Anchorage, 159 F. Supp. at 735 (“assessments are to be determined in accordance with established Territorial and local special assessment practice”).

      . 2A Sutherland Statutory Construction .§§ 51.07, 51.08 (4th ed. 1973). See generally, Somermeier v. District Director of Customs for the Port of Los Angeles-Long Beach, 448 F. 2d 1243 (9th Cir. 1971); Werntz v. Jennings, 101 A. 2d at 812-13.

      . George Williams College v. Village of Williams Bay, 7 N.W.2d 891 (Wisc. 1943); 2A Sutherland Statutory Construction .§ 51.07 (1973). In Maryland, this general rule of statutory construction has been altered by Md. Ann. Code art. I, § 21 (a) (1976) which provides:
      .“Whenever a provision of the public general or public local laws of this State refers to any portion of this Code, or to any other law, the reference applies to any subsequent amendment to that portion of the Code or other law, unless the referring provision expressly provides otherwise.”

      . Culotta v. Raimondi, 251 Md. 384, 389, 247 A. 2d 519 (1968); Smith v. Higinbothom, 187 Md. 115, 130, 48 A. 2d 754 (1946); 82 C.J.S. Statutes § 389 (1953).

      . 199 Md. 105, 85 A. 2d 449 (1952).

      . Board of Supervisors of Elections of Baltimore City v. Blunt, 200 Md. 120, 88 A. 2d 474 (1952).

      . Even assuming that we might decide this case on the basis of some lesser application of Article 33 — specifically, Chapter 26 — we find no manifestation of a legislative intent that the public local law incorporate that chapter. Section 1, Chapter 26 is entitled “Elections to which applicable” and states: "The provisions of this subtitle shall apply to all elections in which ballots shall be cast pursuant to the provisions of this article.” It is clear, there being no qualification of the term “election,” that the definition intended is that which is employed in Article 33, Section 1-1 (a) (6). That definition, as stated earlier, excludes municipal elections.

      . Furthermore, as previously noted, the local Board of Supervisors of Elections did not consider the Friendship Heights election in May 1977, or at any time, to be subject to its jurisdiction, an interpretation which is, of course, entitled to some weight. Cf. Smith v. Higinbothom, 187 Md. at 132 (“long-continued and unvarying construction applied by administrative officials” may be persuasive if statute is susceptible to two constructions).

      . The legislature, in enacting the Fair Election Practices Act, intended to provide for “the regulation and control of campaign financing and to insure a system of centralized responsibility for campaign funds and expenditures.” Parker v. Junior Press Printing Service, Inc., 266 Md. 721, 726, 296 A. 2d 377 (1972). By the terms of Article 33 and subtitle 26, municipalities are clearly excluded from its coverage unless there is a specific provision to the contrary. Accord, 42 Op. Att’y Gen. 177, 178 (1957). No such provision exists here.

      . See Smith v. Higinbothom, 187 Md. at 131 (“no man can be held guilty of violating a statute unless the act with which he is charged comes plainly within both the letter and the spirit of the statute”).

      . Compare Young v. United States, 178 F. 2d at 79-80 where the court held the following language sufficient to incorporate penal provisions:
      “ ‘Except as otherwise provided in this chapter, the administrative, definitive, and penal provisions under sections * * *, 712-715, * * * of this title, shall be for application under this chapter.’ ”

        See also Yarborough v. United States, 230 F. 2d 56 (4th Cir. 1956); Government of Guam v. Kaanehe, 137 F. Supp. 189 (D. Guam 1956).

      . In addition to Section 1, the general powers provision, the appellant alleged in his petition violations involving Sections: 3 (candidate’s certificate of acceptance should accompany the nomination); 11 (voting by ill and disabled persons); 12 (voting by persons absent from the Washington Metropolitan Area); and 13 (emergency absentee ballots).


author: Lowe, J.,

text:
    MARIE LANIER BELL v. STATE OF MARYLAND
    [No. 352,
    September Term, 1978.]

      Decided January 10, 1979.

    The cause was argued before Moylan, Lowe and Couch, JJ.

      Kenneth V. Heland, with whom were Richardson, Anderson & Heland on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, RichardD. Warren, State’s Attorney for Wicomico County, and H. Michael Hickson, Assistant State’s Attorney for Wicomico County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

- the law -

“ ‘Tis funny about th’ constitution,” said Mr. Dooley on the Choice of Law, “[i]t reads plain, but no wan can undherstant it without an interpretation.” And what could be plainer than the simple elliptical phrase in the fifth amendment of our Constitution:

“No person shall... be subject for the same offense to be twice put in jeopardy of life or limb____”

Yet courts are in a constant quandary as to the meaning and extent of those few words. In the case at bar, after having read and having analyzed countless cases on a limited aspect of that fifth amendment’s Double Jeopardy Clause, two outstanding trial judges confessed in a written opinion that they were left “somewhat in a state of confusion,” even after (or perhaps because of) numerous appellate attempts to clarify this fifth amendment protection.

By process of elimination we know that there are a few “venerable principles of double jeopardy jurisprudence”, e.g.:

1. A judgment of acquittal by court or jury may not be appealed and terminates the prosecution when a second trial would be permitted by a reversal. Green v. United States, 355 U. S. 184, 188 (1957); and
2. The successful appeal of a judgment of conviction, on any ground other than the insufficiency of evidence to support the verdict, Burks v. United States, 437 U. S. 1, 57 L.Ed.2d 1 (1978), poses no bar to further prosecution on the same charge.

See United States v. Scott, 437 U. S. 1, 57 L.Ed.2d 65 (1978). These after-judgment concepts take cognizance of the primary purpose of the Double Jeopardy Clause, i.e., to protect the integrity of a final judgment. See Crist v. Bretz, 437 U. S. 28, 57 L.Ed.2d 24, 30 (1978); United States v. Scott, 437 U. S. 82, 57 L.Ed.2d at 74. They are not, therefore, troubled by “the valued right of a defendant to have this trial completed by the particular tribunal summoned to sit in judgment on him.. . .” Downum v. United States, 372 U. S. 734, 736 (1963).

From the same simple clause in the fifth amendment (that reads so plain), the Supreme Court “has also developed a body of law guarding the separate but related interest of a defendant in avoiding multiple prosecutions even where no final determination of guilt or innocence has been made. Such interests may be involved in two different situations: the first, in which the trial judge declares a mistrial; the second, in which the trial judge terminates the proceedings favorably to the defendant on a basis not related to factual guilt or innocence.” United States v. Scott, 437 U. S. 82, 57 L.Ed.2d at 75.

Much of the constitutional law interpreting the Double Jeopardy Clause arises from mistrials declared at the urging of the prosecutor or sua sponte by the judge. Whenever a trial judge declares a mistrial on his own motion, or upon that of the prosecutor, he all but invariably contemplates that the prosecutor will be permitted to proceed anew,notwithstanding the defendant’s plea of double jeopardy. See Lee v. United States, 432 U. S. 23, 30 (1977). That does not occur, however, unless taking all the circumstances into consideration, there was a “manifest necessity” for the judicial abortion, or the ends of public justice would otherwise be defeated. See United States v. Perez, 22 U. S. (9 Wheat.) 579 (1824); Gori v. United States, 367 U. S. 364 (1961); Downum v. United States, supra; United States v. Jorn, 400 U.S. 470 (1971); Illinois v. Somerville, 410 U. S. 458 (1973); Arizona v. Washington, 434 U. S. 497, 54 L.Ed.2d 717 (1978).

When a mistrial is granted upon a defendant’s own motion, the “manifest necessity” standard is not applicable. To the contrary, “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” United States v. Jorn, 400 U. S. at 485. This is so because it is the defendant himself who retains “primary control over the course to be followed in the event of such error.” United States v. Dinitz, 424 U. S. 600, 609 (1976). While the cases recognized (mostly by dicta) that limitations existed to the general rule that a defendant’s motion for mistrial waives objection to subsequent mistrial, the breadth of those limitations had not yet been defined in Maryland when Judges Pollitt and Truitt decided the question in the case at bar.

Judge Thompson had anticipated the problem in Thompson v. State, 38 Md. App. 499, 502 (1978):

“Although the double jeopardy clause is designed to protect the defendant against multiple punishments or repeated prosecutions for the same offense, United States v. Dinitz, 424 U. S. 600, 96 S. Ct. 1075, 47 L.Ed.2d 267 (1976), a request by a defendant for a mistrial ordinarily removes any bar to reprosecution even though the motion was necessitated by prosecutorial or judicial error. Lee v. United States, 432 U. S. 23, 97 S. Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Dinitz, supra. This rule is not absolute and where a mistrial is the product of prosecutorial or judicial overreaching, the double jeopardy clause prevents a retrial. Lee v. United States, supra; United States v. Jorn, 400 U. S. 470, 91 S. Ct. 547, 27 L.Ed.2d 543 (1971). The exact boundaries of prosecutorial overreaching, necessary to bar retrial, have not been specifically delineated by the Supreme Court. Other courts which have considered the point generally hold that prosecutorial error attributable to negligence does not amount to overreaching, People v. Baca, Colo., 562 P. 2d 411 (1977), while intentional misconduct calculated to gain a more favorable chance for conviction or to abort a trial that is going badly prevents reprosecution. United States v. Kessler, 530 F. 2d 1246 (5th Cir. 1976). The appellant argues that prosecutorial overreaching is not confined to intentional misconduct but encompasses gross negligence as well. Commonwealth v. Bolden, 472 Pa. 602, 373 A. 2d 90 (1977). Although in Bolden, the Court noted that it is unclear from the decisions of the Supreme Court whether overreaching is limited to intentional misconduct or whether it extends to gross negligence on the part of the prosecutor or judge, it concluded gross negligence was encompassed in the term after an examination of the purposes underlying the double jeopardy clause. The Court stated:
‘A defendant forced to request a mistrial by conduct which conspicuously fails to satisfy professional standards should not be required to bear the heavy burdens incident to reprosecution.’ 373 A. 2d at 109.”

Unfortunately, we decided in Thompson that is was not necessary to meet the question in that case:

“Although neither the Court of Appeals nor this Court has specifically addressed this issue, we need not define the boundaries of prosecutorial overreaching in this case because no matter what standard we apply the appellant has failed to demonstrate the existence of any conduct which would invoke the bar of double jeopardy.” Thompson v. State, 38 Md. App. at 503.

One month after the Wicomico County Circuit Court opinion was filed in the present case, denying the motion to dismiss on double jeopardy grounds, we decided Loveless v. State, 39 Md. App. 563 (1978). There, Judge Moylan made it abundantly clear that this Court did not agree with the Pennsylvania holding in Bolden, supra (cited in Thompson, supra), that “gross negligence” is encompassed in the term “prosecutorial overreach” for purposes of denying retrial after a mistrial on defendant’s motion.

“There is one limitation on the foreclosing effect of a defense request for a mistrial. If the defense is placed in an untenable situation where it has no choice but to request a mistrial because of prosecutorial or judicial ‘overreaching,’ then the mere fact that the defense requested the mistrial will not operate as a waiver of later double jeopardy claims. A critical distinction is made, however, between deliberate ‘prosecutorial or judicial overreaching,’ on the one hand, and ‘prosecutorial or judicial error,’ on the other hand. Mere error, judicial or prosecutorial, even where it is grievous enough 1) to cause a mistrial or 2) to cause an appellate reversal, will not bar a subsequent retrial.” Loveless v. State, 39 Md. App. at 565.

Unfortunately again, as pointed out by appellant Bell, the Loveless language is also dicta. The case did not require such definition, and we concluded that we saw:

“. . . nothing remotely approaching the prosecutorial ‘overreaching’ that would be necessary to engage the gears of the double jeopardy clause and to bar a retrial of this appellant.” Id. at 569.

Two days after Judge Moylan’s opinion was filed, the Supreme Court decided United States v. Scott, 437 U. S. 82, 57 L.Ed.2d 65, which held generally that where a defendant seeks to have his trial terminated without any submission to a jury as to guilt or innocence, an appeal by the government from his successful effort to do so does not offend the Double Jeopardy Clause. Scott acknowledges the Dinitz limitation that

“(t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.” United States v. Dinitz, 424 U. S. at 611 (emphasis added).

It is apparent that this narrow limitation constitutes the sole exception to the basic rule that a defendant who has moved for a mistrial in an earlier proceeding has, by that very motion, waived further objection to a subsequent retrial.

“We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. We do not thereby adopt the doctrine of ‘waiver’ of double jeopardy rejected in Green, supra. Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. In Green the question of defendant’s factual guilt or innocence of murder in the first degree was actually submitted to the jury as a trier of fact; in the present case, respondent successfully avoided such a submission of the first count of the indictment by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him.
The reason for treating a trial aborted on the initiative of the trial judge differently from a trial verdict reversed on appeal, for purposes of double jeopardy, is thus described in Jorn, supra, at 484, 27 L Ed 2d 543, 91 S Ct 547 (opinion of Harlan, J.):
‘[I]n the first situation the defendant has not been deprived of his option to go to the first jury, and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his “valued right to have his trial completed by a particular tribunal.” ’
We think the same reasoning applies in pari passu where the defendant, instead of obtaining a reversal of his conviction on appeal, obtains the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence. He has not been ‘deprived’ of his valued right to go to the first jury; only the public has been deprived of its valued right to ‘one complete opportunity to convict those who have violated its laws.’ Arizona v Washington, supra, at 509, 54 L Ed 2d 717, 98 S Ct 824. No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in a manner favorable to the defendant.” United States v. Scott, 437 U. S. 82, 57 L.Ed.2d at 79-80 (footnotes omitted and emphasis added).

Had Judge Pollitt and Judge Truitt had before them the interpretations which we have now, the Constitution might have read “plain” to them. Despite their confessed confounding, their instincts were as accurate as their analysis. They held, even before we had suggested it in Loveless, that:

“It is only where bad faith conduct of the judge or prosecutor threatens harassment of an accused by successive prosecutions or declarations of mistrials so as to afford the prosecution a more favorable opportunity to convict the defendant, that the Double Jeopardy Clause bars retrial. The prosecutorial misconduct must be motivated by bad faith or undertaken to harass or prejudice.”

Unlike Thompson and Loveless, supra, the facts here require that we draw the narrow line beyond which the conduct of the State is so aberrant as to preclude a retrial when an accused feels compelled to move for mistrial.

- this case -

Marie Lanier Bell was charged with having procured Ralph Dulaney Mason, Jr. to murder her husband. Mason was apprehended promptly and, after having acquiesced to a plea bargain, agreed to testify against Mrs. Bell. The bargain was made pursuant to Md. Rule 733 a.; however, significant elements thereof were withheld from both the judge when he approved it and from Mrs. Bell’s attorneys, in violation of Md. Rule 733 b. and Brady v. Maryland, 373 U. S. 83 (1963). After our own independent review of the record, we adhere to the court’s findings below in which such conduct was characterized as “if not prosecutorial misconduct, ... certainly gross negligence.” But that was not the conduct that brought about the mistrial. The Brady violation was not discovered until the trial had been aborted.

The conduct that brought on the motion by the defendant to terminate the proceeding occurred during the testimony of the perpetrator’s accomplice, Mason, which if believed and corroborated, would have been more than sufficient to sustain a conviction. The opinion of the judges below described what occurred:

“During the course of his testimony Mason made allegations of a very serious nature against two of the defense attorneys. It is unnecessary to detail those allegations here. The substance of the allegations was that Don E. Richardson, Esquire, was in some way involved in the conspiracy to .murder Mr. Bell and had offered Mason a sum of money if he refused to testify in the case. He also accused Vaughn E. Richardson, Esquire, with threatening his life if he did not refuse to testify. Obviously shocked by these allegations, defense counsel, quite properly we think, found it necessary to cross-examine Mason about them at great length.
Before the trial resumed on February 13, 1978, defendant moved for a mistrial. The basis of the Motion was that the accusations made against defense counsel by Mason had deprived the defendant of her right to the effective assistance of counsel pursuant to Amendment VI of the Constitution of the . United States. The Court, out of the presence of the jury, conducted an immediate hearing on that Motion. That Hearing is fully reported in the record. It was obvious to the Court that the allegations made by Mason about defense counsel made it absolutely necessary that counsel be sworn and testify to refute those allegations. Their becoming witnesses in the case would in turn make it necessary for them to withdraw as counsel. Maryland Rules of Procedure, Code of Professional Responsibility, DR 5-102 (A). Since this would leave the defendant with no counsel the Court reluctantly concluded that there was a 'manifest necessity’ to declare a mistrial jwhich we did.”

After a hearing, the court factually found:

“That prior to the start of the trial of Mrs. Bell, the State’s Attorney knew that Mason had made serious allegations of misconduct against at least one of her attorneys, Vaughn E. Richardson. It does not appear that the State’s Attorney was personally aware of the allegations against Don E. Richardson.
That this information was considered to be of some significance by the authorities is obvious. Mr. Eaton had notified the Salisbury Police Department of these allegations on February 19th. When Mr. Warren and Mr. Eaton visited Mason at the jail on February 20th, they were accompanied by Lieutenant Webster of that department. On the next day the Salisbury Police Department began an investigation of those allegations. There is testimony that Lieutenant Webster was at the jail to insure the security of the prisoner and that the police investigation was because of the concern of the Chief of Police about the accessibility of Mason to an attorney. Neither the security of the prisoner nor his accessibility to an attorney are the responsibility of the Salisbury Police Department. It is the opinion of this Court that the purpose of the police presence was to investigate the charges made against the attorneys by Mason, either with or without the direction of the State’s Attorney.
That with this knowledge possessed by the State’s Attorney and the police, the State’s Attorney knew, or should have known, that Mason would in all probability be cross-examined by the attorney against whom he had made these allegations. This Court believes that these circumstances should have made any reasonably competent trial attorney conclude that there was at the very least a strong possibility that Mason would repeat those allegations in Court.
That it is undisputed that the State’s Attorney took- no steps whatsoever to attempt to prevent Mason from repeating those allegations in Court. The very least that should have been done was for the State’s Attorney to caution Mason that his allegations, even if true, were collateral and irrelevant to the issues of the trial of Mrs. Bell and should not be repeated in Court.
That the State’s Attorney knew or should have known that if such allegations were repeated in Court, it would be necessary for defense counsel to refute them under oath. The State’s Attorney further knew or should have known that this could make it necessary for counsel to withdraw from the case and cause a mistrial. The Court does not find that the State’s Attorney wanted or deliberately sought a mistrial. The Court does find that it was the duty of the State’s Attorney to make known to the Court and to defense counsel the allegations made by Mason against counsel in order that proper steps could be taken to attempt to avoid a mistrial, either by a cautionary instruction by the Court to Mason, or, if it appeared that Mason would not respect such an instruction, by having additional counsel named for the defense prior to the start of the trial.
That the State’s Attorney failed to make such disclosure to the Court or to defense counsel.” (paragraph numbers omitted).

- our holding -

Perhaps it would have been more charitable to the prosecutor had the court found that all of the misconduct was intentionally motivated for trial advantage. Having leaned toward the alternative of gross negligence, the judges damned the prosecution with faint praise. The ignorantia juris which such a holding necessitates is more demeaning in one sense than an accusation of having committed an intentional foul. It is not, however, more culpable.

Whichever view the judges took, or that we might take upon our independent review of the record, would not have affected the outcome of the double jeopardy issue. The key sentence in the opinion was that

“The Court does not find that the State’s Attorney wanted or deliberately sought a mistrial.”

Because we agree after review of the record, that finding concludes the question in light of our definition. As stated in Dinitz and repeated in Scott, the only conduct sufficiently grave to deny a retrial when mistrial was granted on motion of defendant is when

"... governmental actions [are] intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.” United States v. Dinitz, 424 U. S. at 611.

Whether the misconduct here was grossly negligent or intentionally perpetrated tactically to gain a trial advantage is of no consequence to the question of retrial. It was not intended to provoke a mistrial, but was, at worst, an intentional foul to win the trial then in progress.

It need hardly be noted that the Brady violations were of the same nature. The information that the State failed to disclose as it should have could hardly have been intended to provoke a mistrial. Had it become known during the trial, the defendant still had the option to go to the first jury, and perhaps end the dispute by acquittal, retaining his “valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, 336 U. S. 684, 689 (1949); or, at worst, perhaps gain a reversal and retrial on appeal. The defendant was still in control of the course to be followed. See Dinitz and Scott, both supra.

Appellant is not being placed in jeopardy twice for the same offense. The Constitution “reads plain.”

Judgment affirmed.

Costs to be paid by appellant.

      . The opinion below outlined another instance of comparable prosecutorial misconduct in this regard:
      “Another witness for the State at the trial was one Robert M. Anderson, who testified, among other things, that Mrs. Bell had paid him money to assault her husband and that he had accepted her money but did not assault her husband and had never intended to do so. When asked if he had been made any promises by anyone on behalf of the State, in exchange for his testimony, he said that he had received no such promises or inducements.”
      The court below found in this regard:
      “That prior to the trial, the State’s Attorney had written a letter to the attorney for Robert Anderson, assuring him that Mr. Anderson would not be prosecuted for his part in this matter.
      That Robert Anderson was a key witness for the prosecution as to at least some of the charges against Mrs. Bell.
      That Anderson’s attorney had requested the aforesaid letter from the State’s Attorney prior to advising Anderson to testify.
      That irrespective of whether or not Anderson had committed a ‘prosecutable offense,’ this ‘color of immunity’ would most certainly bear on his motivation for testifying and on his credibility.
      That Anderson, on cross-examination, denied being made any promises in return for his testimony. (Joint Ex. 1A, TR 66-67).
      That for the reasons stated in the aforegoing paragraph (3), it was the duty of the State’s Attorney to disclose these facts to defense counsel prior to trial, and that he failed to do so, and that such failure was a denial of due process to this defendant under Brady v. Maryland” (paragraph numbers omitted).
      This too was discovered after the mistrial was granted.