author: Couch, J.,

text:
    BETTY A. (HUEBSCHMAN) REESE v. RICHARD D. HUEBSCHMAN
    [No. 696,
    September Term, 1981.]

      Decided February 5, 1982.

      The cause was argued before Liss, Couch and Bishop, JJ.

      Joseph F. Gaíñgan, with whom were Bill L. Yoho, Robert S. Hoyert, Theodore L. Mast, Stephen H. Kiefert, Richard M. Dull and Hoyert & Yoho on the brief, for appellant.

      Jack D. Leonard, II, with whom were Hans J. Phillips, Douglas W. Knight and Leonard, Phillips & Knight on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

On January 16, 1980, the Circuit Court for Anne Arundel County ordered Betty Amanda Huebschman, the appellant, divorced a vinculo matrimonii from the appellee, Richard Dennis Huebschman. The decree, inter alia, incorporated a provision of their August 2,1979 separation agreement that provided the appellee pay appellant $200.00 per month for the support of their minor children. Mr. Huebschman petitioned the court for specific visitation on May 5, 1980. Mrs. Huebschman petitioned the court for modification of the decree as to child support on May 27, 1980. Both petitions were heard on March 27, 1981 and the chancellor ordered child support to be increased by 9.5%, from $100.00 to $109.50 bi-weekly, and spelled out in detail a visitation schedule, upon which the parties had previously agreed. That schedule is not an issue on appeal. What is at issue here is appellant’s claim that the chancellor erred (1) in ruling that change of circumstances must be shown "to modify a Separation Agreement by increasing child support” and (2) in denying appellant attorney’s fees.

I

Appellant’s first argument is that the chancellor erred when he ruled that a change in the parties’ circumstances must be shown to sustain a modification of the child support mandated by an enrolled divorce decree. Appellant asserts that the applicable standard is the "best interests of the child” and cites Md. Ann. Code art. 16, § 28 for that proposition. We shall hold that that section is inapposite to the issue in this case and the chancellor was correct in his ruling.

Section 28 states, in pertinent part, that in any agreement between a husband and wife relating to child support, "the court has the right to modify the deed or agreement in respect to the infants as to the court may seem proper, looking always to the best interests of the infants.” This section clearly means that when the court incorporates a separation agreement, which contains a provision providing for child support, into a divorce decree, the chancellor, in his discretion, may modify the amount of child support agreed upon by the parties. However, when the decree becomes enrolled, it is res judicata between the parties and § 28 no longer applies. Any issue that was litigated or could have been litigated in the divorce proceeding may not be relitigated in a subsequent petition to modify the support. The basis of a petition to modify child support may only be an issue that was not and could not have been raised earlier, viz., a change in the circumstances of the parties.

In Lott v. Lott, 17 Md. App. 440, 302 A.2d 666 (1973), we held that the rule for modifying child support was the same as that for modifying alimony. Id. at 448, 302 A.2d at 671. We held that the court may modify alimony at any time, if there is sufficient cause, but that it may not

"relitigate matters that were or should have been considered at the time of the original award.... '[A]ll questions concerning alimony which are or ought to be determined in a divorce proceeding are res judicata in a subsequent proceeding in the same jurisdiction.’... It is, of course, equally established that the equity court which made the original award of alimony may modify the award if thereafter there comes about material change in circumstances which justify the action.” Id. at 444-45, 302 A.2d 669.

Therefore, the exact same considerations apply to a modification of child support: a change in circumstances must be shown to sustain a modification of child support contained in a divorce decree.

The "best interests of the infants” standard found in Section 28 applies only when a court is adopting an agreement of a husband and wife concerning child support into an original decree. Once that decree is enrolled, the standard for modification is controlled by the doctrine of res judicata. The correct standard to be applied when modifying support is clearly enunciated in Cole v. Cole, 44 Md. App. 435, 439, 409 A.2d 734, 738 (1979):

"It is, of course, well settled in this State that a court of equity may upon a proper petition to do so modify a decree for alimony or child support at any time if there has been shown a material change in circumstances that justify the action. Jackson v. Jackson, 272 Md. 107, 111, 321 A.2d 162 (1974); Stansbury v. Stansbury, 223 Md. 475, 477, 164 A.2d 877 (1960); Winkel v. Winkel, 178 Md. 489, 498-499, 15 A.2d 914 (1940); Slacum v. Slacum, 158 Md. 107, 111, 148 A. 226 (1930); Lott v. Lott, 17 Md.App. 440, 302 A.2d 666 (1973). It is equally well settled that, as with an original award, the decision on the question of modification of the original award is left to the sound discretion of the chancellor and will not be disturbed unless that discretion was arbitrarily used or the judgment, clearly wrong. Lott v. Lott, supra.” (Emphasis added.)

Even after the chancellor determines that a change in the parties’ circumstances has occurred, res judicata also prevents him from making retroactive any modification of the amount of the support payments prior to the date of the filing of the petition to modify the support. Fainberg v. Rosen, 12 Md. App. 359, 364, 278 A.2d 630, 633 (1971).

Appellant also argues that, assuming the chancellor was correct in applying the change of circumstances rule, his decision to increase child support payments by only 9.5% was clearly erroneous, see Md. Rule 1086, and must be reversed. In making his ruling, the chancellor stated:

"So I do feel that the wife is entitled to an increase, but I think the husband has met the increase! He got a 9% raise and he gave her a 9% raise of what he got. If I were to give her any more, I’d be going back behind the decree because that was a fair amount that he set then. And the wife has said — the testimony — by her own testimony that the increase is the cost of living and he’s got no more. Now if he got a healthy pay raise, it might be something else. But he has gone up 9%. She doesn’t know what hers has gone up, but other than the regular cost of living. And he has voluntarily increased his support payments, whether it be by the agreement, not by the court order. And the Court believes that the order should be changed to reflect what he is now giving, but I don’t see that I can charge him any more.”

We cannot say that the chancellor was clearly erroneous where the mother did not attempt to prove exactly how much her expenses had increased, the father’s income increased by 9.1%, and the chancellor ordered the payments increased by 9.5%. We thus affirm this part of the chancellor’s ruling. See Md. Rule 1086.

II

The second issue the appellant presents is that the chancellor abused his discretion in denying appellant attorney’s fees as permitted by Md. Ann. Code art. 16, § 5A. The chancellor stated:

"Now there’s another request in here — the wife has requested counsel fees. And I think it comes to a point that the court is placed in a very difficult position because I know that counsel does what they say they do on the letter, and I don’t have any doubt that the hourly rate that is being charged, but the court again has to look to the need and the benefit conferred. Half of this case, and it actually began with specific visitation, a complaint against the husband against the wife to set up a regular schedule. And I can’t break the bill down. I don’t know what’s visitation and what is for support. And the husband had voluntarily increased the support payments to the amount that I’ve ordered, so I’m afraid the court is not going to award counsel fee in this matter. The reason being that the husband had voluntarily increased the amount.”

It is clear to us that the chancellor found that the amount of the attorney’s fee actually incurred was not in question. The appellant’s attorney introduced into evidence a bill for $1423.75 covering the period of May 2,1980 through March 26, 1981. The legal work described in the bill was related to both instituting the appellant’s petition to modify the child support and defending the appellee’s petition for specific visitation.

The reason the chancellor denied recovery of attorney’s fees is somewhat unclear to us. While it is clear that the chancellor found (1) that the bill for attorney’s fees was not itemized as to the work done in defending appellee’s visitation petition, as opposed to the work done in instituting the appellant’s support petition, (2) that recovery for fees arising from work done on one of the petitions was not justified, and (3) concluded that he could not award attorney’s fees for that part of the work done on the petition that was justified, it is unclear which petition the chancellor found did not justify recovery. The appellee asserts that recovery on his visitation petition was not justified because it was settled prior to the March 27, 1981 hearing. The record shows that the parties entered into an agreement concerning visitation at the beginning of that hearing in open court. Appellee also asserts that no recovery on the support petition was justified because it was "obviously retaliatory in nature” and the appellee had already voluntarily increased his payments by 9.1%.

Section 5A of Article 16 allows the chancellor to grant attorney’s fees if there is "substantial justification for instituting or defending” an action relating to visitation or support. The question of substantial justification is a matter of law. Peterman v. Peterman, 14 Md.App. 310, 316, 286 A.2d 812, 816 (1972), citing Rhoderick v. Rhoderick, 257 Md. 354, 361-62, 263 A.2d 512, 516 (1970). Once substantial justification is found, the amount is left to the discretion of the chancellor.

We find there was substantial justification for both defending the visitation petition and instituting the support petition. The appellant had no choice but to defend against appellee’s visitation petition. It merely asked for visitation consisting of three weekends per month, alternating holidays, and three weeks during summer vacation. The appellant was at least justified in obtaining counsel to negotiate the specifics of appellee’s demand, even if there was no justification to resist the extent of the visitation demands, although there is nothing in the record to suggest the latter. The fact that the issue was settled at the beginning of the hearing by agreement of the parties instead of at the end of the hearing by the chancellor is irrelevant to the issue of substantial justification.

There was also substantial justification for instituting the support petition. Although the appellee had apparently voluntarily increased his support payments by 9.1%, the amount of his salary increase, he was not legally obligated to continue payments above the amount ordered in the divorce decree ($100.00 bi-weekly). In addition, the appellant in her petition alleged that the payments should be increased because the expenses involved in supporting the children had increased due to their older ages and inflation. Therefore, there was substantial justification for appellant’s petition, both to make the voluntary 9.1% increase legally binding and to ask for a further increase because of the children’s older ages and inflation.

Because we find that there was substantial justification for instituting the support petition and for defending the visitation petition, we reverse that part of the chancellor’s ruling denying attorney’s fees and remand the action to him to award attorney’s fees to the appellant in an amount he, in his discretion, see Jackson v. Jackson, 272 Md. 107,321 A.2d 162 (1974), thinks is "just ánd proper under all the circumstances,” Md. Ann. Code art. 16, § 5A.

Decree affirmed in part and reversed in part; case remanded for the passage of a modified decree consistent with this opinion.

Costs to be paid one-half by appellant and one-half by appellee.

      . We should note that there exists a common law duty to support a minor child which may be enforced by an action at law. Even when the child support provisions contained in an enrolled decree may not be modified because of their res judicata effect, expenses for extraordinary necessaries, which are, by definition, not contemplated by child support, may be recovered. Fainberg v. Rosen, 12 Md. App. 359, 365-366, 278 A.2d 630, 633-34 (1971), citing Kriedo v. Kriedo, 159 Md. 229, 150 A. 720 (1930) (reimbursement by ex-husband to ex-wife for medical and funeral expenses paid for by ex-wife of minor child.)

      . A change in the circumstances of only one party satisfies this standard. Lott v. Lott, 17 Md. App. 440, 444-48, 302 A.2d 666, 668-69 (1973).

      . The father’s gross increase in income was 9.1%. He testified his "take home” increase was "slightly over 5%.”


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    GEORGE DUNBAR FIELDS v. STATE OF MARYLAND
    [No. 708,
    September Term, 1981.]

      Decided February 8, 1982.

    The cause was submitted on briefs to Morton, Lowe and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Bradford C. Peabody, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Philip M. Andrews, Assistant Attorney General, Sandra A.

      O’Connor, State’s Attorney for Baltimore County, and Joseph Steigerwald, Assistant State’s Attorney for Baltimore County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Appellant was convicted in the Circuit Court for Baltimore County and sentenced to two consecutive 18 month prison terms, for storehouse breaking and stealing (Md. Ann. Code (1957, 1976 Repl. Vol.), Art. 27, § 33) and storehouse breaking with intent to steal (Md. Ann. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.), Art. 27, § 33A). He contends here that his conviction for storehouse breaking with intent to steal must be reversed because "the trial court convicted and sentenced appellant twice for storehouse breaking — once for having the intent to steal, and once again for stealing.” We conclude, however, that while it is not reversible as such, we should, in the interests of justice, merge those offenses to avoid double punishment for a single offense.

A conviction under the relevant portion of § 33A requires proof of the elements of a breaking with intent to steal money, goods or chattels under the value of $300. Section 33, however, requires a breaking and "'... a larceny amounting in value to $5.00 or more.’ ” Garner v. State, 16 Md. App. 353, 361 (1972), quoting Hyman v. State, 4 Md. App. 636, 642 (1968) (emphasis added). Each offense appears to require proof of an element that the other does not (i.e., the intent requirement in § 33A and the larceny requirement in § 33), and they are, therefore, distinct crimes. Fabian v. State, 235 Md. 306, 314 (1964). That case clearly holds that those two offenses are "separate crimes,” as indicated by the trial judge in this case:

"No, they’re completely separate crimes. One is the breaking and entry of the building with the intent to steal, and the actual consummation of the theft is a different and separate crime. That has clearly ruled out. I can’t cite the case, but I know that to be true from the time immemorial.[] If you break and steal, two different crimes are committed.”

But Fabian determined only that those two offenses had "no inconsistency”. It did not hold that there was "neither 'inconsistency’ nor 'illegality’ in the imposition of separate penalties ...” as argued by the State. The issue of merger with which we chose to treat this matter, was not addressed in Fabian because, as the Court twice noted, no sentence had been imposed upon the "intent” conviction.

Brooks v. State, 284 Md. 416, 419 (1979), on the other hand, did not directly address the academic Fabian issue but sought to decide what Fabian had not; whether convictions should be merged if they rested upon substantially identical "actual evidence”. Although Brooks did hold that the "required evidence” test (whether each offense requires proof of an element which the other does not) was appropriate for merger determinations in most instances, it clearly left open an escape valve for the more obvious exceptions; i.e., where it is clear that the Legislature did not intend that separate sentences be imposed for two offenses arising out of the same transaction. Brooks, supra, at 423. That valve was kept open by repetition the year after Brooks espoused it, emphasizing by such repetition so soon thereafter, that we should carefully consider merger in obvious situations of duplicate punishments.

"The imposition of multiple punishment, however, is often particularly dependent upon the intent of the Legislature. Just last year in Brooks v. State, supra, 284 Md. at 423, it was pointed out that, although the required evidence test is the normal standard for deciding the allowability of separate sentences, the Legislature may not in certain circumstances intend that separate sentences be imposed for two offenses growing out of the same transaction, even though the two offenses are clearly distinct under the required evidence test.”. Whack v. State, 288 Md. 137, 143 (1980).

Because it is difficult, if not nigh impossible, to conjure a case where a thief might break and enter, and steal without having an intent to do so, it is apparent that the Legislature was providing in § 33A for an instance of a crime commenced but not completed, rather than penalizing one who intended to steal what he does steal as an aggravation of simply breaking without intent to do that which he ultimately accomplished. To assume the latter would presuppose a prior intent by the Legislature when it enacted § 33, that breaking and stealing was considered by the Legislature to be a non scienter crime, and that, if course, is absurd. The Legislature will not be interpreted as intending absurdities. Francois v. Alberti Van & Stg. Co., 285 Md. 663, 670 (1979); Mazor v. State, Dep’t of Correction, 279 Md. 355, 361 (1977).

A pattern of legislative intent is apparent in the three successive sections of Art. 27, § 32, § 33 and § 33A. Each have the common element of breaking into structures other than dwelling houses, structures to which we will apply the euphemism "storehouse”.

It appears that the Legislature first addressed the problem of storehouse breaking in 1737, subsequently merging a law criminalizing storehouse breaking with a felonious intent, with storehouse breaking and stealing to the value of a dollar. Over the years numerous minor changes were made including attempts to fill obvious gaps. The result is that storehouse breaking is addressed by

§ 32 breaking with either felonious intent or an intent to steal $300 or more in value; and,
§ 33 breaking and actually stealing $5 and up (to $300) in value.

In 1933, the Legislature enacted what is now § 33A which was obviously intended to complement:

§ 32 by proscribing breaking with intent to steal under $300 in value; and,
§ 33 by proscribing breaking and actually stealing under $5 in value.

Logic and the Court of Appeals both indicated that the Legislature intended these statutes to be both complementary and mutually exclusive. See Turner v. State, 242 Md. 408, 415 (1966). The intended exclusivity is apparent when, for example, a thief who broke and stole a $4.00 item was proven to have intended the breaking in order to rape or murder an occupant of the building. But it is equally apparent that the Legislature did not intend that a thief for whom it had provided a possible 10 year sentence for breaking and actually stealing a $6 item (§ 33), was expected to serve an additional 18 months because he had intended to steal an item worth less than that or even not substantially more. To the extent then, that the "actual evidence” indicates that theft accomplished, coincides with an intended theft, according to the pecuniary range provided by these statutes, we will apply the Brooks’ exception and merge the convictions.

If the case before us is not precisely that which the Brooks’ exception anticipated, we can conceive of no purpose for which it was intended. We have considered, and will merge, the conviction under § 33A into the conviction under § 33 to avoid the "manifest injustice” which results when consecutive sentences are imposed for merged offenses. Rose v. State, 37 Md. App. 388, 393-394 (1977).

We note, as shown by the example above, that had the trial judge intended to assure a 3 year sentence, he could have imposed 36 months for the actual theft and 18 months for the intent crime, to be served concurrently. Had that been done, absent a request to merge, we would have declined to address the merger question which lacked the apparent "manifest injustice” resulting from consecutive sentences improperly imposed. See Rose, supra.

Appellant also contends that the evidence was insufficient to sustain his convictions. After carefully reviewing the record, which included evidence of appellant’s former employment at the gas station where the crime occurred, and testimony and exhibits showing that appellant’s fingerprints were found on pieces of glass which had been removed from a broken window at the station, we find no merit in appellant’s contention. The trial judge declared himself convinced beyond a reasonable doubt that the appellant had committed the offenses:

"The testimony is not iron clad, but it convinces me beyond a reasonable doubt. Plus, the other testimony that the defendant was familiar with the premises, that he apparently went only to those places where cash was known to be kept, that makes him the number one suspect, to start with.
And when the thumbprint is found at the fracture line of the glass, with some prints on the other side, then I am convinced that he is the one that removed the glass;fragment from the bay frame, and the verdict is guiltijf.”'

After viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence was sufficient to support a finding of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Judgment under count three (breaking and stealing) affirmed; judgment under count two (breaking with intent) vacated; costs not to be reallocated pursuant to Md. Rule 1082f.

      . Section 33A also proscribes breaking and stealing "under the value of five dollars,” without reference to intent.

      . Undoubtedly a reference to Fabian, supra, if 1964 was "Immemorial.”


author: Wilner, J.,

text:
    BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK v. JOHN C. LOCKAMY et al.
    [No. 738,
    September Term, 1981.]

      Decided February 8, 1982.

      The cause was argued before Wilner and MacDaniel, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Joseph F. Lavin, with whom was Samuel S. Smalkin on the brief, for appellant.

      Alva P. Weaver, III and David F. Clinnin for appellees Procter and Gamble Manufacturing Company and Edward Glodek. Submitted by Joel J. Shugarman for appellee Lockamy.
   Wilner, J.,

delivered the opinion of the Court.

The issue presented in this appeal is whether the Procter and Gamble Manufacturing Company (Procter & Gamble) was "borrowing” a trailer owned by National Freight, Inc. (National) when, as its employees were loading products onto the trailer, one of them negligently injured John Lockamy (Lockamy). Procter & Gamble’s status is important because if we conclude that it was a "borrower” of the trailer at the time of the accident, appellant Bankers and Shippers Insurance Company of New York, which insured the trailer, is liable under its policy to pay for Lockamy’s injuries; if we conclude otherwise, that liability would fall on other shoulders.

National regularly transported goods manufactured by Procter & Gamble. In the furtherance of that endeavor, National entered into an arrangement with Leonard White (White), who owned one or more tractors, whereby White agreed to pull National’s trailers to and from Procter & Gamble’s warehouse. Lockamy was employed by White as a helper.

On the morning of January 13, 1978, White drove his tractor, hauling National’s trailer, to the Procter & Gamble warehouse to pick up a load of products. In accordance with Procter & Gamble’s standard procedure, he signed in at the scalehouse, had his empty vehicles weighed, and was directed to loading door no. 7 (one of twenty-eight loading doors). He backed the trailer up to that door, shut off the engine, checked the air pressure in his brake system, and placed "chocks” under the wheels in order to render the unit immobile. He presented his pick-up slip and scale ticket to the Procter & Gamble dispatcher who then directed Edward Glodek, another Procter & Gamble employee, to begin loading.

Glodek then began moving the product from the warehouse onto the trailer. He did this by loading boxes onto a clamp truck in the warehouse, driving the loaded clamp truck into the trailer, and depositing the boxes therein. National’s driver or helper — in this case Lockamy — remained in the trailer and stacked the boxes deposited by Glodek.

The accident occurred after Lockamy had stacked seven loads. Glodek, entering the trailer with the eighth load, negligently struck Lockamy with the clamp truck.

Convinced that someone was responsible for his injuries, but unsure who, Lockamy filed an action for declaratory judgment in the Superior Court of Baltimore against (1) appellant, as insurer of the trailer, (2) Maryland Automobile Insurance Fund, as insurer of White’s tractor, (3) Procter & Gamble, (4) on the theory that the clamp truck was a motor vehicle, Commercial Union Insurance Company, Procter & Gamble’s motor vehicle insurer, and (5) Glodek, White, and National. Primarily, he sought a determination as to which defendant was responsible for payment of personal injury protection benefits (medical expenses and wage losses) required under Md. Code, art. 48A, § 539, although the action against Commercial Union apparently involved a claim for "uninsured motorist” coverage under art. 48A, § 541 (c).

Procter & Gamble cross-claimed against appellant, contending that, as a "borrower” of the trailer during the loading operation, it was entitled to coverage under the "omnibus” clause of appellant’s policy. The court agreed with that contention, declaring that (1) the clamp truck was not a motor vehicle designed for highway use, and (2) Lockamy was covered under appellant’s policy.

In this appeal, which concerns only the second part of the declaration, appellant argues that the court erred in concluding that Procter & Gamble was a "borrower” of the trailer. We agree.

At issue here is the "omnibus” clause in appellant’s policy, defining who is an "insured.” The relevant language is as follows:

"II. Persons Insured
Each of the following is an insured under this insurance to the extent set forth below:
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
(1) a lessee or borrower of the automobile; or
(2) an employee of the named insured or of such lessee or borrower.” (Emphasis supplied.)

The more precise issue, of course, is the meaning of the word "borrower,” as used in that clause. That would seem to be a matter easily resolved by resorting to one or more dictionaries; but in the context presented here, it is unfortunately a bit more complicated. A number of courts have considered the question and have come up with different answers.

It might help to start with some understanding of the history and purpose of the clause. In the distant past, motor vehicle insurance policies often limited liability coverage to the person or persons named in the policy, and thus did not afford protection if an accident occurred while someone else was using the vehicle. The purpose of an "omnibus” clause was to extend that coverage by including as an additional person insured under the policy anyone using the insured vehicle with the permission of the "named insured.” See, in general, 6C Appleman, Insurance Law and Practice, § 4353 (Buckley ed. 1979).

Liability coverage is based upon the operation or "use” of the insured vehicle, and it was not long before loading and unloading operations were deemed to be such a "use.” See, for example, American Oil Co. v. Hardware Mutual Casualty Co., 408 F.2d 1365 (1st Cir. 1969), and Western Casualty and Surety Company v. Branon, 463 F.Supp. 1208 (E.D.Ill. 1979). When coupled with the expanded coverage provided under the "omnibus” clause, that extension began to produce what one author called a "bewildering snarl of decisions.” See 2 Long, The Law of Liability Insurance, § 6.15 (1966). Eventually, the insurance industry began to place some limits on the "loading and unloading” coverage afforded through the "ominbus” clause. One form of limitation, which soon became fairly standard, is that appearing in the policy here: restricting the extended "ominbus” clause coverage during loading and unloading operations to "lessees and borrowers” of the insured vehicle.

At least two courts, in States having statutes precluding exceptions or conditions to "omnibus” clauses, have declared those limitations to be contrary to public policy and therefore invalid. See Mission Insurance Co. v. Aid Insurance Services, 585 P.2d 240 (Ariz. 1978), and Bellafronte v. General Motors Corp., 376 A.2d 1294 (N.J.Super.), cert. den. 384 A.2d 513 (N.J. 1977), but compare Breen v. Cunard Lines Steamship Company, Limited, 311 N.E.2d 478 (N.Y. 1974). No one has raised the public policy issue in this case or pointed to any provision of Maryland law that might serve to invalidate the conditions, so we have no occasion to address that question. We deal only with the construction of the language — the word "borrower” — in light of the facts noted; but we do so with the understanding that the language at issue represents (and was intended to represent) a limitation on insurance coverage that, by contract, custom, and judicial construction, previously existed.

As we have noted, a number of courts have considered the issue now before us, and have arrived at different answers. There are, essentially, three lines of cases.

The first line began with White v. Great American Insurance Co., 343 F.Supp. 1112 (M.D.Ala. 1972). The court’s opinion is not distinguished by its clarity, but apparently what occurred was this: Great American insured a truck owned by Arrow Truck Lines under a policy similar to that issued by appellant here. One Neely, a driver employed by Arrow, drove the Arrow truck to the warehouse of Union Camp Corporation to pick up a load of merchandise. During the loading operation, Neely was injured through the negligence of two of Union Camp’s employees. Union Camp’s general liability insurer, Liberty Mutual, paid Neely’s claim and, as subrogee, sought reimbursement from Great American.

Among the many defenses raised by Great American to that action was the one raised here — that Union Camp was neither a lessee nor a borrower of the vehicle during the loading operation. Without a great deal of discussion, the court rejected that defense, noting at 343 F.Supp. 1117:

"The truck, at the time of the accident, was in the possession of Union Camp for purposes of loading the consignment. It is of no consequence that the carrier’s compensation paid Arrow by Union may have included rent for the truck while Union was loading it or that the use of the truck by Union during loading may have been a gratis loan to Union by Arrow. Permission by Arrow to load is obvious.” (Emphasis supplied.)

The court made no attempt to define the word "borrower” in any generic sense, but rather concluded that Great American was liable primarily on the basis of its finding that, at the time of the loading operation, the truck was in Union Camp’s possession. That made it a "borrower.”

Following the decision in White, the Texas courts commenced a second line of reasoning. It started with Gary Safe Company v. Transport Insurance Co., 525 S.W.2d 64 (Tex.Civ.App. 1975), which involved an action against the shipper of goods by reason of an accident occurring during an unloading operation at the end of the journey. The court distinguished White, where, it noted, "the truck was in the possession of [the shipper] for purposes of loading the consignment and was actually in the process of being loaded by [the shipper’s] employees at the time of the accident.” Id. at 67. The Gary court declined to consider the shipper (Gary Safe Co.) as being the borrower of the truck at the time of unloading, when it had neither possession nor control and was in no way responsible for the accident.

The second case considered by the Texas courts also involved an accident occurring during an unloading, but there it was the consignee, whose negligent employees caused the accident, who sought to be covered as a "borrower.” The facts were these: Dragoo, an employee of U.S. Plywood, delivered a load of plywood decking to Homette. He drove a tractor-trailer owned by U.S. Plywood and insured by Liberty Mutual. After parking the vehicle at Homette’s plant, Dragoo removed the nylon webbing securing the stacks of decking and then stood along the opposite side of the truck as Homette employees began unloading the decking with forklift trucks. He did nothing more to assist in the unloading. As he was rolling up the webbing that had been used to contain the decking, several sheets of decking fell on him and killed him.

Prompted by a suit filed by Dragoo’s widow, Homette’s liability carrier, American Employers Insurance Co., sought a declaratory judgment that Homette had been a "borrower” of the truck at the time of the accident and that Liberty Mutual was therefore responsible. The trial court found for American Employers as did the court of civil appeals. See Liberty Mutual Insurance Co. v. American Employers Insurance Co., 545 S.W.2d 216 (Tex.Civ.App. 1976). The intermediate appellate court concluded that "the term 'borrower’ as applied to the facts in the case at bar means someone who has, with permission of the owner, temporary possession and use of the property of another for his own purposes.” Id. at 222-23. It then held that "Homette had, with the owner’s permission, the temporary possession of the truck for unloading purposes, and is an additional insured under the policy.” Id. at 223.

The Supreme Court of Texas reversed. Liberty Mutual Insurance Co. v. American Employers Insurance Co., 556 S.W.2d 242 (Tex. 1977). The crux of its decision was "[ajlthough we agree with the court of civil appeals’ general definition of 'borrower,’ we do not agree that Homette falls within it because these [sic, there] is no evidence that Homette had possession of the truck and trailer rig.” Id. at 244. In that regard, the court noted that Homette’s employees never moved the truck or instructed Dragoo to move the truck from one location to another and that there was no evidence as to who had the keys during the unloading operation. It observed (p. 245):

"The only evidence in the record is the statement by the sales manager of U.S. Plywood that Homette had express or implied permission to unload the decking. It is impossible to conclude from this statement that Homette had sufficient possession to be a 'borrower.’ The only contact Homette’s employees had with the truck was to drive up to it with forklifts and remove the decking. If, as American argues, this was enough to bring Homette within the policy, the 'borrower’ requirement would be meaningless because one would need only to be an unloader to also be a 'borrower.’ ”

The Court declined to accept that premise:

"While unloading is a 'use’ of the vehicle, the conjunction 'and’ in the definition of 'borrower’ [given by the intermediate court] indicates that one must also have possession of the vehicle to be a 'borrower.’ Possession connotes the right to exercise dominion and control over the truck and trailer. There is no evidence that Homette had this right.”

(Id. at 245; emphasis supplied.)

The Court then cited the White case and a favorable reference to it in Gary Safe Co., supra, but noted, correctly, that in neither case "did the court explain the basis for its conclusion that an unloader was a 'borrower.’ ” Id. at 245.

The Liberty Mutual case naturally established the law in Texas (see Atlantic Mutual Insurance Co. v. Gulf Insurance Co., 596 S.W.2d 326 (Tex.Civ.App. 1980); Robinson v. Excalibur Insurance Co., 598 S.W.2d 324 (Tex.Civ.App. 1980); but it has been followed as well in Illinois and Indiana. See United States Fidelity and Guaranty Co. v. Federal Insurance Co., 399 N.E.2d 259 (Ill.App. 1979); Protective Insurance Co. v. Coca-Cola Bottling Co., 423 N.E.2d 656 (Ind.App. 1981).

The first line, started in White, was strengthened and followed by the Fifth Circuit Court of Appeals in McDaniels v. Great Atlantic & Pacific Tea Co., 602 F.2d 78 (5th Cir. 1979). That, too, involved an unloading operation. McDaniels, driving a truck owned by Gulf Atlantic Warehouse Co., delivered a load of cigarettes to an A & P warehouse. He backed the truck up to the unloading dock, whereupon A & P employees, using forklift trucks, began unloading the pallets from the truck. This was done by driving the forklift into the truck, lifting a pallet, backing out, and depositing the pallet on the loading dock. During this operation, McDaniels was injured when, in assisting an A & P employee to remove a pallet from the truck, some boxes fell off the pallet and hit him.

As a result of the accident, Ranger Insurance Co., Gulf Atlantic’s workmen’s compensation carrier, paid benefits to McDaniels and then sued A & P to recover them. A & P cross-claimed, arguing that Ranger also had issued a motor vehicle liability policy on Gulf Atlantic’s truck, and that under the "omnibus” clause therein, it was a "borrower” of the truck during the unloading operation. The language in that policy was the same as that at issue here.

The Court of Appeals affirmed a judgment for A & P, finding that it was a "borrower,” and thus was covered as an insured under the Ranger policy. In doing so, it accepted the definition of "borrower” given in both White and Liberty Mutual — "one who has temporary possession of the vehicle with the permission of the owner.” 602 F.2d at 81. It noted, however (also at p. 81):

"It is not necessary that a borrower be able actually to operate the vehicle along the highways or streets; the policy provision [at issue] specifically recognizes that permissive use of the insured vehicle may entail 'actual operation or (if there is not [actual operation]) ... or other actual use.’[] It is sufficient that the borrower have both temporary possession and permission to unload.” (Emphasis supplied.)

Permission to unload was never in dispute, and the Court had no difficulty finding that A&P had temporary possession of the truck:

"The evidence discloses that A&P had complete control over the loading process from the time that the Gulf truck came into A & P’s premises until A & P released the truck to the driver. ...A&P determined where along the dock the truck would be unloaded, who would unload it, what unloading equipment would be used, where the unloaded cargo would be placed on the dock, and when to release the truck to the driver. [Emphasis in the original.] The sole means of unloading the truck was through the use of the electric forklift, which the A&P employee drove in and out of the truck at will. We believe that A & P’s control over unloading operations shows sufficient dominion and control over the truck to support the conclusion that A&P had temporary possession of Gulfs truck during unloading.” Id. at 81. (Emphasis supplied.)

The Court distinguished Liberty Mutual on the basis that "the unloading party did not have possession of the truck because it never controlled the movements of the truck or entered the truck; in the present case, A&P instructed the incoming driver where to park the truck and maintained control over the truck until it was released to the driver at the end of unloading.” Id. at 81. (Footnote omitted.)

Both lines of cases purport to rest upon the same underlying concept of "borrowing,” and to a large degree the distinctions drawn are somewhat technical: How much control over the operation must the loader or unloader have before he will be deemed to have temporary possession of the vehicle? This is illustrated in Protective Insurance Co. v. Coca-Cola Bottling Co., supra, 423 N.E.2d 656. There, a driver, in his tractor, hauled a load of Coca Cola products in a trailer belonging to Coca Cola to a Coca Cola warehouse. He positioned the trailer where the Coca Cola dispatcher directed him and was in the process of uncoupling the trailer when, due to the alleged negligence of Coca Cola, he was killed.

The Indiana court rejected the argument that Coca Cola was a "borrower” of the vehicle. It accepted the Texas definition of the term, concluding that to be a "borrower”, a person "must have possession of the vehicle, possession connoting the right to exercise dominion and control over the vehicle.” Id. at 660. It further concluded, however, that "[gleneral supervision or even the actual performance of loading or unloading operations will not make one a borrower of the vehicle involved; there must be evidence of possession.” Id. White and McDaniels were distinguished on the basis that, in the case at bar, Coca Cola employees were not participating in the uncoupling. See also F&M Schaefer Brewing Co. v. Forbes Food Division, Chemical Leaman Tank Lines, Inc., 376 A.2d 1282 (N.J.Super. 1977).

A third line of cases, based on essentially the same theory but with added stress on the question of who is benefiting from the operation, arose out of New York. In Broome County Co-Operative Fire Insurance Co. v. Aetna Life and Casualty Co., 347 N.Y.S.2d 778 (1973), a nisi prius decision, the court stated, at p. 784:

"A 'borrower’ of an automobile has been described as one who 'uses the car for his own business or pleasure, and not for any purpose in which the owner is interested.’ [citation omitted.] In common everyday language the term 'borrower’ is generally understood to mean someone who has, with the permission of the owner, possession and use of the property of another for his own purposes.”

The case involved a private automobile in which Pilcher was driving her friend Miller, a cripple, in Miller’s car. Miller in a wheelchair, was injured while alighting from the vehicle. Though accepting that the accident occurred while Miller was being "unloaded,” the court concluded that Pilcher was not a "borrower” since she was using the car for Miller’s benefit rather than her own.

The Alabama court adopted somewhat the same approach in Sentry Insurance Co. v. Pacific Indemnity Co., 345 So.2d 283 (Ala. 1977). There, K & K sent its truck and driver to McWane, a supplier, to pick up a load of pipe. The driver parked the truck at McWane’s dock, and McWane’s employees loaded the pipe. On the return trip, the driver was killed when the pipes slammed into the cab, which, it was alleged, occurred because McWane was negligent in its loading of the pipe. The court adopted the reasoning of Broome County Co-Operative Fire Ins. Co., and found that McWane was not a borrower of the truck because it did not have possession of the truck "for its own purposes.” Id. at 287.

We thus have, with the first two lines of cases, a consensus on the underlying definition of "borrower” — one who has both permissive use and temporary possession of the vehicle — but somewhat of a divergence on what it takes to find the critical element of possession. The third line, so far involving less analogous fact situations, stresses the criterion mentioned but not emphasized in Liberty Mutual that the use of the vehicle be for the "borrower’s” benefit.

We are impressed with the Texas approach and think it is more in accord with both the purpose of the limiting language and the normal acceptance of the word "borrower.” See also Breen v. Cunard Lines Steamship Company, Limited, supra, 311 N.E.2d 478. We are perhaps more inclined to look to the general meaning of the word than are some other courts because Maryland does not follow the rule of construction applied in other States that language in an insurance policy is necessarily to be construed against the insurer and in favor of the insured. In Maryland, words used in insurance contracts are given their "customary and normal meanings.” See Government Employees Insurance Co. v. DeJames, 256 Md. 717 (1970); C & H Plumbing and Heating, Inc. v. Employers Mutual Casualty Company, 264 Md. 510 (1972); National Grange Mutual Insurance Company v. Pinkney, 284 Md. 694 (1979).

The White-McDaniels courts, we think, have given undue importance to the loader’s (or unloader’s) control over its own premises and the operations conducted on it in deciding who has possession of the truck. A company has good reason to exercise some control over vehicles (and persons) coming onto its property — checking them in, directing their movements, checking them out; but that does not necessarily translate into a "borrowing” of the vehicles any more than it translates into a "borrowing” of the personnel. Procter & Gamble hired National’s trailer to haul goods to its customers, and that involved loading the trailer. To conclude that the shipper has "borrowed” the truck during the loading operation because it establishes and implements minimal safety, security, and operational requirements — checking the truck in, telling the driver which dock to report to, requiring that the truck be in a secure stationary position prior to and during the actual loading, and having its employees bring the products from the warehouse and place them in the truck — is to stretch the meaning of the word "borrow” well beyond its ordinary signification. If such temporary control over the truck as an incident of the shipper’s control over his own premises and operations is to constitute sufficient possession of the vehicle to make it a borrower thereof, we would soon have a situation in which either (1) virtually every loader and unloader would be a borrower, thus giving little or no meaning to the condition placed in the policy in order to limit coverage, or (2) the distinctions required to be drawn between who is and who is not a borrower would defy rational explanation.

It is imperative that there be some certainty in this area of the law. No two loading operations are precisely the same. As the cases indicate, they vary from plant to plant and from company to company, based no doubt on the layout of the loading area, applicable personnel rules and collective bargaining agreements, the contract with the carrier, and a host of other factors. Yet, the parties and their insurers must be able to know who is going to be responsible for injuries occurring during these operations.

To continue to draw the fine distinctions recited in the aforecited cases serves no useful purpose. We accept the basic definitional criterion for determining who is a "borrower” — permissive possession and use of the vehicle for the benefit of the "borrower” — but we do not find that criterion to be satisfied merely by controlling a temporary and on-going loading or unloading operation as part of a consignor or consignee maintaining control over its loading dock. That is all that is revealed in this record, and it is not enough.

Judgment construing appellant’s policy reversed; case remanded for declaration that appellant is not liable to defend action by Lockamy or to pay judgment resulting therefrom; appellees to pay the costs.

      . The problem was often one of overlapping or conflicting coverages when one party loaded or unloaded a truck belonging to another. Among other things, questions arose as to (1) whether any accident occurring during such an operation was covered under the motor vehicle policy or whether some direct involvement of the vehicle was necessary; (2) the point at which the loading or unloading operation was considered to be ended; (3) whether an accident occurring after the loading or unloading had been completed was covered if it was caused by negligence in the loading or unloading operation. See, for example, United States Fidelity & Guaranty Company v. Backus, 243 Md. 121 (1966); American Automobile Insurance Co. v. Master Building Supply and Lumber Co., 179 F.Supp. 699 (D.Md. 1959); Employers’ Liability Assurance Corp. v. Indemnity Insurance Co., 228 F.Supp. 896 (D.Md. 1964); 6B Appleman, supra, § 4322; 2 Long, supra, § 6.01 et seq.; Annot., Risks Within "Loading and Unloading’’ Clause of Motor Vehicle Liability Insurance Policy, 95 A.L.R.2d 1122, et seq. (1964).

      . The policy in question became effective January 1, 1978, for a three-year term ending January 1,1981. It was issued either in New Jersey or in North Carolina (different parts of the policy say different things in that regard). We have discovered that in May, 1979, the policy was approved by the Insurance Commissioner in Maryland, and we shall therefore accord it a presumptive validity.

      . In another part of the opinion (343 F.Supp. 1119), the court again held that "[a]t the time of the accident, the truck was in the possession of Union Camp for purposes of loading the consignment. Union Camp was paying Arrow for delivery of the consignment. The truck was either leased or borrowed for the purpose of loading.”

        . This refers to the first part of the "omnibus” clause: "Any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not

        operating) his other actual use thereof is within the scope of such permission, ....” (Emphasis supplied.)

      5. The facts recited in Liberty Mutual indicate that Homette employees did enter the truck with their forklifts. Indeed, as noted, Homette was in complete control of the unloading operation.


author: Orth, J.,

text:
    GLENN OWEN FUNKHOUSER v. STATE OF MARYLAND
    [No. 748,
    September Term, 1981.]

      Decided February 8, 1982.

      The cause was argued before Wilner and MacDaniel, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Patrick R. Hudson for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and David M. Simpson, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

I.

About five years ago the General Assembly enacted comprehensive legislation with respect to sexual offenses in which it recognized that there were gradations of severity in the perpetration of the common law crime of rape. Maryland Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.) Art. 27, §§ 462 and 463. It classified rape and other sexual offenses by degrees with penalties of varying harshness and spelled out what constituted the crimes it created. §§ 462-464C. It prescribed that a person is guilty of the felony of rape in the first degree

"if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person . . .,”

provided any one of four certain aggravating circumstances was present. § 462 (a). One of such circumstances is that "[t]he person commits the offense aided and abetted by one or more other persons.” § 462 (a) (4).

The statute is silent about the culpability of the person who aids and abets the actual perpetrator of the rape. Therefore, his status is determined under the common law. Lutz v. State, 167 Md. 12, 15, 172 A. 354 (1934); Hooper v. Baltimore, 12 Md. 464, 475 (1859); Gray v. State, 43 Md. App. 238, 241-243, 403 A.2d 853, cert. denied, 286 Md. 747 (1979), and cases therein cited. Under common law, a person who commits a crime as a perpetrating actor, either by his own hand or the hand of an innocent agent, is a principal in the first degree. A person present, actually or constructively, aiding and abetting the commission of the crime, but not himself committing it, is a principal in the second degree, provided there is a guilty principal in the first degree. Agresti v. State, 2 Md. App. 278, 280, 234 A.2d 284 (1967). "[A]s a matter of common law the distinction between principals in the first degree and those in the second degree is one of fact rather than of legal consequence. Their guilt is exactly the same. . . .” R. M. Perkins, Criminal Law, 657-658 (2d ed. 1969). The Court of Appeals noted in Vincent v. State, 220 Md. 232, 239, n. 1, 151 A.2d 898 (1959): "In Maryland, as in many other states, there is little practical difference between a principal in the first and second degree, and the defendant claims no benefit from such a shadowy distinction.” Thus, a principal in the second degree is charged with the substantive offense and may be found guilty of it and be subject to the penalty authorized for it just as if he were the principal in the first degree. See Camphor v. State, 233 Md. 203, 196 A.2d 75 (1963).

Glenn Owen Funkhouser was jointly indicted with Robert Scott Weatherbee but separately tried before a jury in the Circuit Court for Prince George’s County. After the court disposed of motions for judgment of acquittal, four charges remained for the determination of the jury: rape in the first degree (2d count), assault and battery (4th count), kidnapping (5th count), and false imprisonment (6th count). The second count presented that Funkhouser and Weatherbee "did commit rape in the first degree in that they unlawfully engaged in vaginal intercourse with [a certain named person], by force and threat of force, against the will and without [her] consent . .. [and] were aided and abetted by one another, in violation of Article 27, Section 462 of the Annotated Code of Maryland, 1957 edition, as amended, and against the peace, government and dignity of the State.” Under this charge, which was properly drawn, Funkhouser was to be found guilty of rape in the first degree upon legally sufficient evidence that he was either a principal in the first degree or a principal in the second degree, in the commission of that crime.

The evidence placed before the jury was sufficient to prove beyond a reasonable doubt the corpus delicti of first degree rape, the criminal agency of Weatherbee as the actual perpetrator of the crime and the criminal agency of Funkhouser as being present and aiding and abetting Weatherbee’s criminal act. Upon the acceptance by the jury of this evidence, a proper verdict as to Funkhouser would be guilty of rape in the first degree.

The rendering of the verdicts is set out in the transcript of the trial as follows:

"(Whereupon, at 8:00 p.m., the jury returned to the jury box and rendered the following verdicts: Aiding and abetting in first degree rape, 'Guilty’,[] Assault and Battery, 'Guilty’, Kidnapping, 'Not Guilty’, False imprisonment, 'Guilty’. The jury was duly hearkened to its verdicts).”

Defense counsel requested that the roll be called. The transcript reads: "(Whereupon, the jury was duly polled, each juror answering 'Yes’ to the question 'Is the foreman’s verdict your verdict?’)”. After a brief bench conference not concerning the return of the verdicts, the jury was discharged from any further consideration of the case.

There was no timely objection to the verdict rendered on the rape charge. But, of course, a person cannot be punished in a criminal proceeding upon a finding that he committed an act which was not a crime. Taking the words of the verdict literally, there is no such crime as "aiding and abetting a first degree rape.” As we have seen, one who so aids and abets is not guilty of the aiding and abetting as an offense, but is guilty of the rape by reason of his aiding and abetting. Furthermore, "it is elementary that a defendant may not be found guilty of a crime of which he was not charged in the indictment.” Turner v. State, 242 Md. 408, 414, 219 A.2d 39 (1966). "[A] judgment based on a jury’s verdict of guilty of a crime for which the prisoner was never accused is invalid.” Barber v. State, 16 Md. App. 235, 241, 295 A.2d 814 (1972). It is self-evident that neither of these defects could be waived by a lack of timely objection so as to permit the judgment to stand. It follows that unless the verdict of the jury here may be deemed as a determination by it that Funkhouser was guilty of first degree rape as charged in the second count of the indictment and as entered on the docket, the judgment entered thereon must be reversed.

We observe that in rendering the verdict as it did, the jury was guided by the court. With the approval of defense counsel and the prosecutor, the court submitted to the jury before it began its deliberations a document entitled "Possible Verdicts.” The four charges the jury was to decide were set out, and the jury was to indicate opposite each one whether the verdict was "not guilty” or "guilty.” The first "possible verdict” was designated as "Aiding and Abetting in First Degree Rape.”

Although the judge referred in her charge to the jury to the second count as "the count of aiding and abetting in first degree rape,” we believe that she fairly set out the correct law. She gave "the legal definition of first degree rape” and then "the concept of aiding and abetting, so that you will put them together in your mind.” She defined rape "as an act of vaginal intercourse with a woman accomplished by force or threats of force against her will and without her consent.” She correctly explained the meaning of "vaginal intercourse,” force and threats, consent, and aiding and abetting. With reference to the last she said:

"A person who aids or abets the principal offender may be guilty of the principal offense even though he did not personally commit each of the acts constituting the offense itself.
Under the common law, persons who are present either actively or constructively and who aid and abet the commission of a crime, but do not themselves commit it, are principals in the second degree.”

She made clear that an aider and abettor was guilty as a principal.

It is readily apparent why the term "aiding and abetting” was so heavily emphasized. The determination whether Funkhouser aided and abetted the commission of the rape was essential both to the proof of the corpus delicti of rape in the first degree under Art. 27, § 462, as charged in count two of the indictment, and to the proof of the criminal agency of Funkhouser under the common law. In other words, if the jury was convinced beyond a reasonable doubt that Weatherbee had vaginal intercourse with the complainant by force, against her will and without her consent, the rape, on the evidence adduced, would be in the first degree only if he was aided and abetted by another person, and Funkhouser would be guilty of that offense only if he were that other person. In this light, the verdict as rendered validly reflected a finding of guilty on the charge presented by the second count. The verdict clearly showed findings of the jury on the elements necessary for the conviction of Funkhouser under the charge — the commission of a rape in the first degree and his criminal agency as aider and abettor. In other words, it accurately indicated "The finding of the Jury... pertaining to the merits of the offense charged.” Md. Rule 702g.

Although the possible verdict under the second count could have been better stated, it is established that

"[w]here the meaning of the verdict is so unmistakable, mere artificiality in its form will not be sufficient to defeat justice by a nullification of a verdict which plainly declared the intent of the jury to convict [on the charge]. Under these circumstances, it is the duty of the court to enforce the rule that every intendment is made in support of the finding of the jury, which was responsive, certain and complete, within the comprehension of laymen, and, so, of the court.” Simmons v. State, 165 Md. 155, 169-170, 167 A. 60 (1933), citing Hechter v. State, 94 Md. 429, 439-443, 50 A. 1041 (1902).

The Court in Simmons quoted with approval Bishop’s New Criminal Procedure, § 1005 a(1), which included the assertion: "Whatever conveys the idea to the common understanding will suffice.” 165 Md. at 170. See Mayne v. State, 45 Md. App. 483, 487, 414 A.2d 1, cert. denied, 288 Md. 739 (1980), cert. denied, 450 U.S. 910 (1981). In Barber v. State, supra, we upheld the verdict where the charge was attempted robbery with a deadly weapon, and the verdict was rendered as "guilty of armed robbery with a deadly weapon” and hearkened as "guilty of armed robbery.” We said: "The very purpose of language is to express ideas; when the language used unmistakably expresses a conclusion, technicalities in the form of the verdict cannot be used to invalidate that verdict.” 16 Md. App. at 242.

Here, the docket entry as recorded, " 'Guilty’ as to Count 2 — First Degree Rape,” correctly reflects the jury’s verdict.

II.

The State filed a motion in limine seeking to preclude the defense from introducing evidence with respect to the prosecuting witness’s chastity and past sexual conduct. The matter was heard prior to trial. Funkhouser claims that the court erred in granting the motion over his objection.

A motion in limine is not a ruling on evidence; it adds a procedural step prior to the offer of evidence. It serves the useful purpose of raising and pointing out before trial, certain evidentiary rulings that the court may be called upon to make. Under this rationale and citing substantial authority in support, we have held that the denial of a motion in limine cannot of and in itself constitute reversible error. Offutt v. State, 44 Md. App. 670, 677-678, 410 A.2d 611 (1980); Lapelosa v. Cruze, 44 Md. App. 202, 206-209, 407 A.2d 786 (1979), cert. denied, 287 Md. 754 (1980); Ory v. Libersky, 40 Md. App. 151, 163-165, 389 A.2d 922, cert. denied, 283 Md. 737 (1978). The authorities relied upon in reaching that holding are to the effect that the same rule applies to the grant of a motion in limine. See Lapelosa at 208; Offutt at 677. We now hold that the grant of a motion in limine cannot in and of itself constitute reversible error.

Funkhouser would have us test the constitutionality of Md. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.) Art. 27, § 461 A, which bans reputation and opinion evidence relating to the victim’s chastity, except in certain categories after an in camera hearing to determine whether particular evidence is admissible. The question is not properly before us. We gather from a comment of the court at the pre-trial hearing on the motion in limine that there had been a chambers conference earlier that morning on the matter, but if those proceedings were reported, the record submitted to us does not include a transcript of them. At the pre-trial hearing defense counsel objected to grant of the motion on the ground of the constitutionality of the statute, but he made no proffer of the evidence he sought to introduce except the vague comment that it was "about [the victim’s] sexual background in New Jersey.” More important, he made no attempt whatsoever to introduce the evidence at the trial by way of proffer out of the hearing of the jury, or otherwise. Maryland Rule 1085 requires that, normally, on appeal we not decide "any point or question which does not plainly appear by the record to have been tried and decided by the lower court....” As we have indicated, the grant of the motion in limine did not preserve error, if error there were, and there was nothing relative to the evidence the defense desired to introduce presented to the court for a ruling at trial. We said in Lapelosa v. Cruze, supra, at 207:

"There is no exception to the ... rule, which requires the recording of an objection in the trial below, where the question of admissibility of evidence has previously been raised in a pre-trial motion in limine.”

We adhere to that view.

III.

Funkhouser alleges that the court erred in denying his motion for judgment of acquittal as to the second count charging rape in the first degree. The basis of his claim is that he did not have vaginal intercourse with the victim, and, he asserts, such intercourse is a necessary element of the offense by mandate of the statute. The argument completely disregards the law concerning principals in the second degree, which we have set out fully in part I of this opinion. Of course, vaginal intercourse is a necessary element of rape in the first degree, but here, as we have indicated, that element was supplied by Weatherbee. Again we point out that there was evidence, which, if believed, showed that Weatherbee engaged in vaginal intercourse with the victim by force, against her will and without her consent, aided and abetted by Funkhouser. This was enough for Funkhouser to be guilty of rape in the first degree. His participation as aider and abettor was all that was required to make him as responsible as was the actual perpetrator of the crime, there being no practical distinction between Weatherbee as a principal in the first degree and Funkhouser as a principal in the second degree. Nor was it necessary that Funkhouser be specifically charged as a principal in the second degree.

The denial of the motion for judgment of acquittal as to the second count was not erroneous.

IV.

The court did not abuse its discretion in refusing the request by defense counsel at the beginning of the second day of trial to issue a subpoena for a police officer. Md. Rule 742b requires that a request for the issuance of a summons be filed at least three days before trial and authorizes the court to shorten the time "[flor good cause shown... .” The court below made abundantly clear that good cause had not been shown for the issuance of the summons — "you haven’t given me any reason why I should bring [the officer] in.” Procedural rules must be observed. See Dimery v. State, 274 Md. 661, 668-677, 338 A.2d 56 (1975), cert. denied, 423 U.S. 1074 (1976). In any event, the court stated that the testimony sought from the officer would not be admissible. It seems that the defense desired to impeach the victim’s testimony by a prior inconsistent statement she had made to the officer. But counsel had not laid the proper foundation upon cross-examination of the victim. See Sanders v. State, 1 Md. App. 630, 640-641, 232 A.2d 555 (1967). See also Darby v. State, 47 Md. App. 1, 7, 421 A.2d 108 (1980), cert. denied, 289 Md. 734 (1981).

V.

Funkhouser claims that the court erred in denying two motions for mistrial made by him. In determining that there was no reversible error on these claims, we give due regard to the principle that the grant or denial of mistrial is in the sound discretion of the trial judge, see Wilhelm v. State, 272 Md. 404, 429, 326 A.2d 707 (1974), and to the doctrine that discretionary rulings of the trial judge carry a presumption of validity, Mathias v. State, 284 Md. 22, 28, 394 A.2d 292 (1978), cert. denied, 441 U.S. 906 (1979).

(a)

Upon swearing the prospective jurors on voir dire, the judge informed them that the case involved an alleged rape. She then made inquiry of them as is usual in voir dire examination, including this question:

"Has any member of this prospective jury panel, or any member of your family or close personal friend, who has ever been interrogated for, arrested for, a witness to, a victim of, or convicted of a crime of violence?”

Seven persons came forward, and the information they gave was duly considered and acted upon by the judge. Immediately before the jury was selected, the judge asked:

"Does anyone have any reason why he or she could not sit on a panel in this case and render a fair and impartial verdict based solely on the evidence, for any reason that I have not asked.”

There was no affirmative response. Each counsel expressed satisfaction with the voir dire.

About two hours after the jury retired to deliberate, the judge, in open court, informed Funkhouser and counsel that she had received a note over the signature of the jury foreman which read:

"Your Honor, During the course of discussion among the jurists, one jurist said at age 13 she was afraid about being raped by three individuals. In view of your opening remarks to the potential jurists, we feel you should be aware of this disclosure.”

Defense counsel moved for a mistrial. He opposed any other interference by the court with the deliberations of the jury.

The court denied the motion for a mistrial. It explained:

"The court interprets this [note] as meaning there is one juror, apparently, as so many jurors often do, rely on their own personal experiences day to day basis, in trying to make a determination, a deliberation, in. any case. Jurors often do this. It is only natural, it is human nature that one would rely on one’s own education, their social background, their own personal experiences in adjudicating a case.
The court finds that to be normal. Also, the court feels in the voir dire questions, the court never asked whether there was anyone out there on the prospective jury panel that was afraid of being raped. Since I never asked that question, there would be no reason to believe that this juror had given any kind of incorrect or false answer. Furthermore, the court asked, at the end, if there was any reason why, which I have already asked, why he or she could not sit and render a fair and impartial verdict based solely on the evidence in this case, and I had no affirmative response whatsoever. Therefore, the court is of the opinion that all of the jurors who are back there deliberating in this particular case, have no reason at all to believe that they could not sit and render a fair and impartial verdict in this case, therefore, your motion for a mistrial will be denied. The court finds no prejudice with respect to this note, it appears to be information only. I will therefore respond by saying, 'Thank you for the information, you may continue deliberations’, and I will instruct the bailiff to deliver this to them.”

We think that the court’s appraisal of the situation was sound. We make the further observation that because a person at one time may have been afraid of being raped does not connote that the person was a "victim” of a rape. Many persons today are "afraid” that in their absence their home will be burglarized, but that fear does not make them the "victim” of a burglary. Defense counsel was of the opinion that the "note reflects a dishonesty in one of the jurors from not answering the voir dire questions....” In the circumstances, we see nothing nefarious or improper on the part of the juror concerned because that juror did not come forward in response to either of the above voir dire questions as posed. We find that there was no abuse of judicial discretion in the denial of this motion for a mistrial.

(b)

Funkhouser claims that the court erred in denying his motion for a mistrial based upon certain remarks of the prosecutor during closing argument. He characterizes these remarks as improper comment on his failure to testify. We do not see it that way.

Two statements of the prosecutor are referred to by Funkhouser:

"We have presented all the evidence to you. What about the defendant’s case? Interesting. Not one bit of evidence is offered as far as the rape itself or the kidnapping....”

And:

"Five witnesses are called. None speak of the rape or the kidnapping. All they talk about is a fight that night, a fight at the house....”

We note that later the prosecutor said:

"You have to take a look at [what happened in the house] momentarily to decide whether the credibility of the witnesses for the defense had any value, because that is all they talked about was the incident at the house.”

Defense counsel objected at the time the first statement was made. The objection was sustained and the court refused counsel’s request to approach the bench. The second and third statements came in without objection. At the end of the State’s argument, at the bench, defense counsel moved for a mistrial "based on the state’s reference to the defendant not taking the stand.” The court opined: "He didn’t say that,” and after a short discussion, denied the motion.

Assuming for decision, but not deciding, that proper challenge was made, we see no abuse of discretion in the denial of the mistrial. The court had made clear in its instructions to the jury Funkhouser’s right not to testify:

"In this particular case, you may recall, Mr. Funkhouser did not take the witness stand. He has an absolute right not to take the witness stand, and you are not to hold this against him in any way because the burden of proof is on the state.”

In the light of this caution, we agree with the judge that the prosecutor’s remarks are not to be deemed as reflecting on the failure of Funkhouser to testify. The thrust of the remarks was directed toward the lack of evidence rather than pointed directly at the failure of the accused to testify. A prosecutor should not be precluded from making fair comment on the entire evidence; not every neutral or indirect reference that the State makes which implicitly refers to a defendant’s silence is improper comment. See Johnson v. State, 9 Md. App. 327, 334, 264 A.2d 280, cert. denied, 258 Md. 728 (1970); Laws v. State, 7 Md. App. 84, 88, 253 A.2d 780 (1969), cert. denied, 256 Md. 746 (1970); Grace v. State, 6 Md. App. 520, 522, 252 A.2d 297, cert. denied, 256 Md. 745 (1969).

There was no abuse of discretion in the denial of this motion for a mistrial.

VI.

Funkhouser ascribes another error to the trial judge. After the jury had been deliberating some three and a quarter hours, the foreman sent a note to the judge, reading: "We would like to know the definition of aiding and abetting on First Degree Rape.” Defense counsel was opposed "to any tampering with the jury once it has been instructed.... The jury instructions given were clear, were proper instructions, and I object.” He would not agree to having the original instruction on aiding and abetting re-read to the jury. He had no objection to the court’s refusing "to reinstruct the jury on the crime of first degree rape, aiding and abetting....” The court sent a message to the jury to "keep working.”

Fifteen minutes later the jury sent the court another note: "We would like to hear the judge’s charge to the jury aiding and abetting in First Degree Rape.” We think that it is clear the defense counsel objected to any further instruction of the jury "what we are really getting into is the Allen charge.... I think it is a very dangerous field to tamper with a jury once they have retired after a trial and instructions.” The judge gave him a choice: "You may have the court reporter read back the original instruction or you may elect to have the judge reinstruct orally.” Defense counsel chose the former. The reporter read the instructions previously given concerning the crime of first degree rape and "the concept of aiding and abetting.” The jury returned to the jury room and rendered its verdicts three hours and fifteen minutes later.

Funkhouser does not now challenge the content of the re-read instructions. He concedes that what was done did not amount to the "traditional 'Allen’ charge” and that the jury requested the further instruction. He urges, however, that "it had the effect of pressuring the jury into reaching an agreement and unduly highlighting one aspect of the Court’s instruction to the Jury.” We believe that neither of these conclusions is warranted by the circumstances. What the court gave the jury at its repeated request can in no way be likened to an Allen charge. See Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977); Kelley v. State, 270 Md. 139, 310 A.2d 538 (1973); Smoot v. State, 31 Md. App. 138, 355 A.2d 495 (1976). Reinstruction was within the discretion of the trial court, and the reinstruction in the exact words of the original instruction, was not ambiguous, misleading, or confusing. See Battle v. State, 287 Md. 675, 684-685, 414 A.2d 1266 (1980). There was no abuse of discretion. See Veney v. State, 251 Md. 159, 172-173, 246 A.2d 608, cert. denied, 394 U.S. 948 (1969).

Judgments affirmed.

Appellant to pay costs.

      . Prior to 1976 the rape statute, Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 461, was primarily a sentencing law, fixing the punishment without defining the crime. Rape in Maryland was the common law felony. See Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960); note, Rape and Other Sexual Offense Law Reform in Maryland, 1976-1977,7 U. Balt. L. Rev. 151, 152 (1977).

      . The proviso does not mean that the principal in the first degree must have been previously convicted. On the trial of the principal in the second degree it is enough if evidence is adduced legally sufficient to show the guilt of the principal in the first degree. Clark and Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967).

      . There was evidence that Weatherbee had vaginal intercourse with the victim without her consent while Funkhouser forcibly held her down. Funkhouser did not have vaginal intercourse with the victim.

      . The verdict was entered on the docket as " 'Guilty’ as to Count 2 — First Degree Rape.”

        In their briefs, both Funkhouser and the State speak of the indictment as charging "aiding and abetting first degree rape” and of the conviction as being for "aiding and abetting first degree rape.”

      . When the document was returned by the jury and filed in open court, "Aiding and Abetting in First Degree Rape” was checked "guilty,” "Assault and Battery” was checked "guilty,” "Kidnapping” was checked "not guilty,” "False Imprisonment” was checked "guilty,” all in accord with the verdicts rendered.

      . We note that the comprehensive legislation enacted defined sexual offenses in non-gender terms.

      . We believe that the court’s instructions were adequate to overcome any possible confusion arising from remarks of counsel. The prosecutor correctly stated the law in his opening statement:
      "The defendant in this case is not actually the one that perpetrated the sexual act, but he was there, as an aider and abettor.... An aider and abettor is one who aids and abets another in the course of a crime such as first degree rape.

        Although the defendant in this case is not the one that committed the sexual act, he does aid and abet in all actions against [the victim]. That will make him as guilty as the party in the first part.”
      The defense did not dispute this view of the law in its opening statement. It claimed that the evidence would show that Funkhouser did not aid and abet the fornication.
      In arguing motions for judgment of acquittal, it seems that both the State and the defense became confused. The State, at times, spoke in terms of "accessory,” declaring that the second count charged Funkhouser as an accessory and that the evidence shows that he was an accessory. Defense counsel said that the second count charged Funkhouser "with being an aider and abettor.”
      In closing statements, both sides muddled the issue. The State indicated that the Legislature made "a special provision in the rape law that we include and hold culpable the person that aids and abets in the commission of a rape.” As we have indicated, this is not correct. Defense counsel, citing § 462, argued that a person who aids and abets the commission of a rape cannot be convicted unless he had vaginal intercourse with the victim. As we have indicated, this also is not correct.

      . Funkhouser could have been charged in the general form authorized by Md. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.) Art. 27, § 461 B (a), that he, on a certain day, in the county aforesaid "did unlawfully commit a rape ... upon [the victim] in violation of Article 27, Section 462, of the

        Annotated Code of Maryland; contrary to the the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State.”
      If this general form or one substantially to that effect is used, the defendant is entitled to a bill of particulars specifically setting forth the allegations against him. § 461 B (b).

      . Funkhouser was sentenced on the rape conviction to the jurisdiction of the Division of Correction for a period of six years. The court merged the conviction of assault and battery and the conviction of false imprisonment into the conviction of rape in the first degree.


text:
    COMPTROLLER OF THE TREASURY v. CITIZENS FOR HOYER
    [No. 788,
    September Term, 1981.]

      Decided February 8, 1982.

    The cause was argued before Moylan and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Gerald Langbaum, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

      Douglas M. Bregman for appellee.
   Orth, J.,

The issue in this appeal is whether a "performance” was furnished at a "COCKTAIL RECEPTION IN HONOR OF STENY H. HOYER for Governor.” Riding on the determination of the issue is $4,270. If a performance was furnished, that sum shall be retained by the Comptroller of the Treasury of Maryland who collected it in satisfaction of admission and amusement taxes claimed to be due. If a performance was not furnished, the coffers of the Citizens for Hoyer, a political committee which staged the reception, will be enriched by the refund of the taxes plus interest.

The authority under which the taxes were collected is § 402 (a) of Article 81 of the Maryland Code (1957, 1975 Repl. Vol.). In pertinent part the statute provides that any county by resolution may levy a tax on the gross receipts of every person, firm, or corporation obtained from sources within the county derived from the amounts charged for "admission to any place . . . including a cover charge for seats or tables at any roof garden, cabaret or other similar place where there is furnished a performance, if payment of the amounts entitles the patron thereof to be present during any portion of the performance,” and for "refreshment, service or merchandise at any roof garden, cabaret or similar place where there is furnished a performance.” The term "roof garden or other similar place” is defined by the section to

"include any room in any hotel, restaurant, hall or other place where music or dancing privileges or other entertainment, except mechanical music, radio or television, alone, and where no dancing is permitted, are afforded the members, guests, or patrons in connection with the serving or selling of food, refreshment or merchandise.”

Baltimore County implemented the statute by the passage of Bill No. 42-72, Resolution No. 2 (10 May 1972), and the tax so levied was in effect at the time of the Hoyer event.

The Hoyer reception was held on 21 February 1978 at Martin’s West in Baltimore County as a political fund raiser. Gross receipts of $85,400 were realized from the sale of tickets at a cost of $100 for a ticket, which admitted one person. The net proceeds were intended to be applied to a political campaign for Hoyer. The function began at 5:30 p.m. and continued until about 9 p.m. A "full buffet” was served.

Whether a "performance” was furnished within the contemplation of the statute centers on a band of seven musicians (accordion, trumpet, saxophone, trombone, guitar, drums, and bass) located on a platform in view and hearing of those present. The band played fifteen to twenty pieces of Dixieland music for about one and a half hours in half hour intervals, for which it was paid $320, an amount stated to be low as a favor to Hoyer. There was no dancing; the music was not "dance music” but "rally music,” typified by such songs as "When the Saints Go Marching In.” That a band would be present at the function had not been advertised to the public and was not indicated on the tickets issued. Those attending the reception "came because it was a political event, and not because of the opportunity to hear music.”

The Committee paid the Comptroller $4,270 calculated by him to be due on the gross receipts derived from the amounts charged for admission to the reception. Subsequently, the Committee filed with the Comptroller a "Claim for Refund of Tax Erroneously Paid to State of Maryland.” The Comptroller denied the claim. The Committee appealed to the Maryland Tax Court, which, after a plenary hearing, affirmed. The Committee appealed to the Circuit Court for Baltimore County. That court, upon the record made in the Tax Court, Md. Code (1957, 1980 Repl. Vol.) Art. 81, § 229 (o), reversed the order of the Maryland Tax Court upon a finding that it was erroneous as a matter of law, Id.; and ordered that the refund claimed be returned with any interest due. The Comptroller appealed to this Court.

Although the Tax Court gave no reasons for its affirmance of the Comptroller’s denial of the claim for refund, it is readily apparent from the record of the proceedings before it that the basis of its decision was its belief that the Committee had furnished a performance at which a patron was entitled to be present by reason of the purchase of a ticket. Equally manifest is that the Tax Court concluded that the performance furnished was the playing of music by the band. Therefore, the crux of the determination of the propriety vel non of the order of the Circuit Court is the question of what constitutes a performance, and the corollary consideration whether, as a matter of law, the activities of the band in the circumstances fell within the ambit of a performance.

"Performance” as contemplated by § 402 (a) was not defined by the Legislature. Our attention has not been called to a definition of performance in this context which has been adopted by the Comptroller or followed by the Maryland Tax Court. The circuit court judge in this case explicitly declined to define it. The Court of Appeals was "unable to precisely define 'performance’ in the terms of its meaning in this admission tax statute. . . .” Comptroller v. Mandel Re-election Com., 280 Md. 575, 584, 374 A.2d 1130 (1977). Each of them, however, despite the absence of a clear-cut definition, was able to conclude whether a certain activity was or was not a performance. The Comptroller had done so in the past under a long-standing policy to collect an admission tax in a case such as this if there were live music. Id. at 578. After Mandel, it seems that he tempered this policy only to the narrowest extent mandated by his interpretation of the facts of that case, namely that for live music not to constitute a performance it must be virtually inaudible as background music, "piddling” in amount, and played by musicians who deliberately make themselves invisible to the patrons. The Maryland Tax Court was apparently of like mind. The circuit court thought that Mandel and the case before it were coterminous and followed the Mandel rationale in arriving at the decision.

The holding in Mandel was that as a matter of law "playing a little bit of organ music behind a curtain under the circumstance of [that] case does not constitute a performance.” 280 Md. at 585. The holding had impact beyond the facts on which it was based only to the extent that it established that any live music whatever at a political fund raiser was not per se the furnishing of a performance so as to establish tax liability. Remaining open is the question of under what circumstances does the presence of live music at a political fund raiser mount up to the furnishing of a performance?

The Court in Mandel, declaring, as we have indicated, that it was unable to define "performance” precisely, stated that it need not attempt to do so for the purposes of the opinion. This was so because it was able to reach its holding upon three factors considered pursuant to the rules of statutory construction: (1) the ordinary meaning of the word performance; (2) the construction placed on the word by other courts; and (3) the principle as enunciated by the Supreme Court and repeated and followed by the Court of Appeals that "[i]n case of doubt [relative to the interpretation of statutes levying taxes] they are construed most strongly against the government, and in favor of the citizen.” 280 Md. at 584. Our perusal of the Court’s discussion of the ordinary meaning of the word performance and construction of it by other courts leads us to this guideline as consistent with common sense, public concept, and legislative intent:

A performance within the contemplation of the amusement tax statute is furnished at a political fund raiser, like the one here, upon the playing of live music with the intention that it be, or with the appreciation of it as, the singular attraction, as opposed to a diversion while primary interest is focused elsewhere.

It is patent that no one was attracted to the Hoyer reception by the band; that the band would play was not even brought to the attention of the public in advance. As with the Mandel cocktail party and buffet dinner, "[t]hose present were drawn not by the . . . music, but by the combination of paying homage to respected political friends; . . . and acquaintances; consumption of a certain amount of beverages, alcoholic and otherwise; and the privilege and pleasure of basking in the glory of those dominant in the affairs of the State and its Democratic Party.” 280 Md. at 584. And, we may add, to be seen by the proper persons and recognized as making a contribution. At the reception the band was not presented as the piece de resistance; it was no more than an hors d’oeuvre. Like the musical presentation at the Mandel party, it was not a musical "performance” as the public thinks of such matters. Although the band was visible and audible, it was by no means the singular attraction when it was playing, and the fact that it could be seen and heard did not raise it to that level. The music furnished by this local band did not constitute a primary purpose of the occasion. There was no response to it by way of dancing. It was but background music, regardless that it played "Dixieland” pieces, characterized in the stipulation as "rally music,” whatever that may connote. It is probable that the attention of many of those in attendance, even if they were aware that music was being played, was not focused on the music or its source but on general conviviality. The music did not even comprise an interlude in the course of the activities traditional at such affairs — drinking, eating, and meeting people. It was simply a diversion while the primary purposes of the reception continued. The short of it is that the circuit court was correct in holding as a matter of law that the music presented at the political fund raiser "in honor of Steny H. Hoyer for Governor” did not constitute the furnishing of a performance within the contemplation of Art. 81, § 402 (a) and in ordering a refund of the tax paid.

Judgment affirmed.

Costs to be paid by appellant.

      . This compendium of facts concerning the band is from a stipulation by the parties filed in the Maryland Tax Court, Miscellaneous No. 330, and a part of the record on this appeal.

      . As Mr. Justice Stewart said about hard-core pornography in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676 (1964):
      "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it. . . .”

      . At the hearing of the instant case before the Maryland Tax Court, the Director of the Admissions and Amusement Tax Division of the Comptroller of the Treasury testified that the Division had imposed the admissions tax on approximately one thousand political fund raisers, including those similar to the one here. It was the presence of entertainment, he said, that rendered the gross receipts subject to the tax.

      . In the circumstances we place no more significance on the principle of administrative construction, see Smith v. Higinbothom, 187 Md. 115, 132-133, 48 A.2d 754 (1946), than did the Court of Appeals in Comptroller v. Mandel Re-election Com., 280 Md. 575, 374 A.2d 1130 (1977). See Comptroller v. American Cyanamid Co., 240 Md. 491,214 A.2d 596 (1965). Nor do we agree with the Comptroller that the "amendment-rejection theory” necessarily leads to the inference in the circumstances here that the Legislature intended not to include any political fund raiser within the ambit of exemptions to the amusement and admissions tax. See Prince George’s County v. Md. Comm’n, 40 Md. App. 473, 489, 392 A.2d 105 (1978), vacated on other grounds, 285 Md. 205, 401 A.2d 661 (1979).

      . The principles relative to statutory construction are so well established as to require no further repetition. They are fully set out in State v. Fabritz, 276 Md. 416, 421-422, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976).