text:
    JOHN ANTHONY McLAURIN v. STATE OF MARYLAND
    [No. 686,
    September Term, 1975.]

      Decided May 6, 1976.

      The cause was argued before Orth, C. J. and Gilbert and Melvin, JJ.

      Charles W. Tumbaugh, Assigned Public Defender, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County and Steven D. Silverman, Assistant State’s Attorney for Baltimore County on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On April 1, 1975, the defendant, John Anthony McLaurin, was brought to trial in the Circuit Court for Baltimore County (MacDaniel, J., presiding) on six separate indictments, alleging his complicity in the theft of five automobiles and their contents and the hubcaps of a sixth automobile. He elected a jury trial. The jury found him guilty of the following:

1. Count II of Indictment No. 50585, larceny of a white 1972 Lincoln Continental automobile on 11 November 1974 belonging to Eileen Colvin.
2. Count I of Indictment No. 50586, larceny of 4 automobile hubcaps of a value more than $100 on 11 December 1974 belonging to Elizabeth Eugenia Canavan and taken from her 1974 Thunderbird automobile.
3. Count II of Indictment No. 50587, receiving stolen property consisting of 3 rolls of pennies, Christmas cards and a toy, on 11 December 1974, of a value less than $100, taken from a 1970 Ford automobile belonging to Maude Edna Neilson.
4. Count I of Indictment No. 50588, larceny of a 1972 one-half ton Ford van and its contents on 8 November 1974, belonging to Michael Mierzwinski.
5. Count I of Indictment No. 50590, larceny of a green 1972 Lincoln Continental automobile and its contents on 11 November 1974, belonging to James Henry Farrell.
6. Count II of Indictment No. 50602, receiving stolen property, consisting of a knife and hatchet in a leather case, a plastic tool case, and a jack and handle of a value less than $100, on 11 December 1974, taken from a 1969 Ford van belonging to John Robert Meadowcroft.

Appellant received sentences of ten years on each of the four larceny convictions, and three years on each of the receiving convictions. All the sentences were to be served concurrently except the three year sentence for the receiving conviction in Indictment No. 50587, which was to be served consecutively to the “ten years sentence, in the first indictment [No. 50585]”. Appellant has taken this appeal from all the convictions and presents four questions:

I. Was the appellant denied due process of law and the right to call witnesses on his own behalf?
II. Did the trial judge improperly and prejudicially admit into evidence, over the strenuous objection of trial defense counsel as stipulated, facts and testimony to which the appellant never agreed?
III. Was the evidence sufficient to allow the jury to infer the appellant exercised possession or control over the stolen property found in the car in which he was a passenger?

IV. Was the evidence sufficient for conviction of larceny of either the Colvin car (Indictment No. 50585) or the Farrell car (Indictment No. 50590)?

We discuss the questions and the pertinent facts with respect thereto in the order presented.

I

Due Process

Before the trial began, appellant moved to suppress as evidence articles found by the police in a search of an automobile on 11 December 1974, in which at that time appellant was a passenger. A suppression hearing was held out of the presence of the jury. The motion was denied. During the trial the critical articles found in the car were admitted in evidence without objection and appellant does not now contest the legality of the search or of his arrest. His contention here is that during the suppression hearing the trial judge deprived him of due process by denying him a postponement to secure the presence of a witness for whom he had issued a subpoena but who did not appear in response thereto. The witness, also a passenger in the car, presumably would have testified to whether the trunk of the car was open or closed at the time of the search. As we believe that, under the circumstances revealed by the record, the search of the trunk was proper regardless of whether the trunk was open or closed, we hold that any error by the trial judge in not allowing a postponement was harmless beyond a reasonable doubt.

In Mobley and King v. State, 270 Md. 76 (1973), at 80-81, the Court of Appeals in affirming this Court in Mobley and King v. State, 16 Md. App. 546 (1973), said:

“The Court of Special Appeals concluded that the only theory that could legitimate the warrantless search of the appellants’ vehicle was the so-called ‘automobile exception’ to the search warrant requirement first established in 1925 by Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543. Under that exception, a motor vehicle, unlike a home, may be searched without a warrant or previous arrest under appropriate circumstances when the officer has probable cause in the constitutional context to believe that the vehicle contains the fruits, instrumentalities, or other evidence of a crime. See Dyke v. Taylor Implement Mfg. Co., Inc., 391 U. S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538 (1968); Brinegar v. United States, 338 U. S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); Scher v. United States, 305 U. S. 251, 59 S. Ct. 174, 83 L. Ed. 151 (1938); Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629 (1931); United States v. Lee, 274 U. S. 559, 47 S. Ct. 746, 71 L. Ed. 1202 (1927). Since the rule is justified on the basis that an automobile is so readily movable as to make impracticable the obtaining of a search warrant, the existence of exigent circumstances must be shown in addition to probable cause to validate the warrantless search. Coolidge v. New Hampshire, supra; Chambers v. Maroney, supra. We recognized and applied the doctrine in Peal v. State, 232 Md. 329, 193 A. 2d 53 (1963).
Probable cause to conduct a warrantless search of an automobile under Carroll and its progeny exists in the constitutional sense when the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information, are such as would warrant a man of reasonable caution in believing that the vehicle contained articles lawfully subject to seizure... To satisfy the probable cause requirement, therefore, an officer is not required to have actual knowledge that the vehicle contains fruits, instrumentalities, or other evidence of a erime at the time he undertakes his warrantless search. ‘. . . [o]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause . ...’ Spinelli v. United States, 393 U. S. 410, 419; 89 S. Ct. 584, 21 L.Ed.2d 637 (1969)____”

Officer Ronald B. Schwartz of the Baltimore County Police Department testified at the suppression hearing that at about 9:30 P. M. on 11 December 1974, he “responded” to the parking lot of E. J. Korvettes on East Joppa Road in the Parkville district of Baltimore County. His attention was drawn to two automobiles parked on the lot, a 1974 Ford Thunderbird and a 1972 green two-door Oldsmobile. The two cars were parked about fifteen feet apart. Two people were inside the Oldsmobile and as Officer Schwartz “pulled up on the scene”, a third person opened the driver’s door and got in the back seat of the Oldsmobile. The appellant was in the front passenger seat.

Officer Schwartz noticed that the left rear of the Ford “had been jacked up” and “[o]n the lefthand side the hubcaps had been removed and wheel lugs also removed on the tires”. The “lug nuts” were “scattered along the ground as you would take the lug nuts off and let them fall”. He approached the driver’s side of the Oldsmobile and “receive[d] identification from” two of the occupants. Without entering the car, with the aid of his flashlight he saw “in plain view” on the rear floor of the Oldsmobile “a handle to a jack which appeared to fit the one underneath the T-bird that had been jacked up”. He also observed on the rear floor, again “in plain view”, a hatchet and a knife in a leather case. In the meantime, other police officers had arrived at the scene. While “[t]he three occupants of the car were [being] removed” and searched for weapons (none were found), Officer Schwartz went to the rear of the car and observed that the trunk lid was open “two or three inches” with the key in the lock. Without further opening the trunk, he shined his flashlight inside the trunk and “was able to see a hubcap — chrome in color, the wire type”. He then “went ahead and opened the trunk and observed not only one but there were four [hubcaps]”. When asked by the prosecutor why he opened the trunk he responded:

“The reason why I opened it, well, when I first looked in, of course I was suspicious about the car that had been jacked up. There was also a car sitting one vehicle away with somebody outside the vehicle. As the items had been missing off the car that was jacked up and it appeared to be the items that were in the trunk went to the auto that was jacked up, it further made me suspicious, after which I opened it, after looking in the trunk, and I came up with the various items that are on display.”

Appellant’s testimony at the suppression hearing contradicted Officer Schwartz only with regard to whether the trunk was open or closed when the police arrived on the scene. Appellant said the “trunk was shut”, but with the key in the lock. Referring to his request to have the trial delayed until the missing witness could be located, defense counsel said to the trial judge:

“You have a difference in testimony concerning the facts of the search. I submit that obviously if these things were found in the trunk in plain view the search was reasonable. I don’t believe that is the way it happened. I think there is an escalation of testimony and I wish you would allow me at some time to introduce the testimony of Tony Jeffers on this matter, if he should be located.” (Emphasis added.)

In our view, even accepting a version of the facts most favorable to appellant, Officer Schwartz had ample probable cause to search the trunk under the circumstances. The scene that confronted the officer when he arrived at the parking lot was certainly grounds for believing that someone was “stripping” the Ford of its wheels, probably the individual he saw climb into the back seat of the Oldsmobile as he drove up, acting in consort with the other two persons already in the car. His lawful observation of the jack handle inside the Oldsmobile “which appeared to fit” the jack he saw under the Ford, coupled with his observation of the trunk key still in its lock, furnished the necessary probable cause to believe that the stolen hubcaps were in the trunk. The necessary exigency was also present. Thus, the warrantless search was a proper one.

II

The Stipulation Concerning Fingerprints

The question here directly involves appellant’s conviction of larceny of the 1972 one-half ton Ford van and its contents belonging to Michael Mierzwinski (Count I of Indictment No. 50588). The key evidence linking the appellant to this crime consisted of four latent fingerprints lifted from the van after it was reported stolen from the parking lot of Towson State College on the morning of 8 November 1974. Later that day Lieutenant William Ronald Morton of the Towson State College Campus Police discovered the van parked on a street in the general vicinity of appellant’s home. Responding to Lieutenant Morton’s call, Corporal Edward Vanik of the Baltimore County Police arrived at the scene. Corporal Vanik is a fingerprint expert. He testified that he “processed the van for latent prints” and lifted one fingerprint from the gearshift knob, two prints from the interior of the vent window on the driver’s side, and one print from the interior of the window on the driver’s side. The prints “were then taken back to the Crime Lab and placed in our latent print file for identification”. After the conclusion of Corporal Vanik’s testimony, the following occurred:

“MR. SILVERMAN: We now come to the final stipulation, which is the testimony of Sergeant Henninger, a qualified expert, in Baltimore County in fingerprinting.
MR. TURNBAUGH: May counsel approach the Bench?
THE COURT: Certainly.
(Counsel conferred with the Court at the Bench.)
MR. SILVERMAN: The final stipulation in the case involves the testimony of Sergeant Wayne Henninger who is a qualified expert in identifying and comparing fingerprints in Baltimore County. His testimony would be that he compared the four latent prints, which are these four right here, lifted by Corporal Vanik, the previous witness, from the automobile mentioned, and that in comparing these four latent lifted prints to the inked fingerprint card of this defendant, he found these four prints corresponded identically and positively to the prints of the Defendant John McLaurin. (Emphasis added.)
MR. TURNBAUGH: Objection to the extent the fingerprint card belonged to McLaurin.
MR. SILVERMAN: I read it was the inked fingerprint card of John McLaurin.
THE COURT: Overruled. It has been stipulated to. We are not changing the stipulation in the middle of the trial.
MR. TURNBAUGH: May I speak on that question?
(Counsel conferred with the Court at the Bench.)
THE COURT: Is there anything further as to the stipulation?
MR. TURNBAUGH: Yes, Your Honor. Neither my client nor I have ever stipulated the card that Sergeant Henninger used to compare prints was the card of my client. If we are to proceed I feel the State should present the testimony of whatever person rolled McLaurin’s prints and got them on the card for comparison. Until that is done the comparison is incomplete. I don’t doubt, and have agreed, Sergeant Henninger compared two sets of prints and they came up the same, but you have to tie in the other set that Sergeant Henninger has.
THE COURT: The Court finds that it was allowed in the stipulation that Sergeant Henninger would testify from his information received it was the fingerprint of your client, the Defendant, and that is what he compared them with. We will proceed with the next testimony.”

Appellant contends on appeal, as he did below, that he never stipulated that Sergeant Henninger would testify that the prints he compared with those lifted from the van were those of the appellant. Rather, the extent of the stipulation was that Henninger would testify that the prints lifted from the van were made by the same person whose prints appeared on a fingerprint card forwarded to the Baltimore County Police Department by an Officer Aquilla of the Baltimore City Police Department. As his counsel put it at trial, “Neither my client nor I have ever stipulated the card that Sergeant Henninger used to compare prints was the card of my client”. Consistent with this position appellant argues that the State “unilaterally expanded the ‘stipulation’ to include the required testimony of Officer Aquilla” who “was allegedly to testify that he rolled the Appellant’s fingerprints onto a fingerprint card and forwarded the fingerprint card to the Baltimore County Police”.

Without knowing what transpired at the two bench conferences concerning the stipulation, it is of course difficult for us to assess the accuracy of the trial judge’s finding that the appellant had irrevocably stipulated that Sergeant Henninger would testify “from information received” that the prints he compared with those he lifted from the stolen van were the appellant’s.

The State concedes in its brief that “[w]ithout more in the record, it is difficult to say whether or not the trial court was erroneous in permitting the stipulation to go to the jury”. The record is very clear, however, that immediately following the presentation of the stipulation to the jury appellant objected “to the extent the fingerprint card belonged to McLaurin [the appellant]”. Moreover, there are clear indications in the record that at the time the stipulation was presented to the jury the prosecuting attorney understood that it was not to include that Henninger would testify that he used appellant’s prints for comparison, since Henninger, if present at trial, could not have so testified of his own knowledge. At the hearing on appellant’s motion for a new trial, the prosecutor stated to the court:

“As for the stipulation, the State did not offer any testimony of Officer James Aquilla. The State merely offered the testimony of Detective Henninger. Detective Henninger took the fingerprint card that was prepared by James Aquilla, a Baltimore City Police Officer; that’s all the State introduced. The State merely stipulated that Detective Henninger took an inked fingerprint card which had been prepared by Officer James Aquilla of the Baltimore City Police Department and compared that with the lifted latent prints that Corporal Vanick testified to and came back as being the fingerprints of John McLaurin, the Defendant. When the State mentioned the inked fingerprint card that Officer Aquilla prepared, it merely stated that an inked card bearing the name McLaurin. It did not ask for a stipulation and did not specifically state to the jury and I made sure that I did not state it was this Defendant’s fingerprints. I merely stated it was an inked fingerprint card prepared by this officer bearing the name of John McLaurin, which happened to he the same name of the Defendant. When that came back then Detective Henninger compared the two, and that stipulation came in that the fingerprints were the same. The jury was free to make any inference it wanted to. ” (Emphasis added.)

The prosecutor’s statement to the court can only be described as misleading “double-talk”. If it represents the clarity, or lack thereof, with which the stipulation was described to the trial judge at the unrecorded bench conferences during the trial, the judge’s misunderstanding of the extent of the stipulation is understandable. It is impossible to reconcile the prosecutor’s statement, “I made sure that I did not state [to the jury] it was this Defendant’s fingerprints ”, with the “stipulation” he actually presented to it that Sergeant Henninger’s “testimony would be . . . that in comparing these four latent lifted prints to the inked fingerprint card of this Defendant, he found these four prints corresponded identically and positively to the prints of the Defendant John McLaurin”. (Emphasis added.)

We think it clear that the trial judge, understandably, misconstrued the true extent of the stipulation reached between the State and the appellant. Under the circumstances, understandable or not, it was error to overrule appellant’s objection to the “stipulation” in the form the prosecutor presented it to the jury. The appellant was thereby effectively deprived of his Sixth Amendment right, which we hold he did not waive, to confront and cross-examine witnesses against him. Pointer v. Texas, 380 U. S. 400 (1965); Glasser v. United States, 315 U. S. 60, 70-71 (1941); Johnson v. Zerbst, 304 U. S. 458 (1938). As the “stipulation” was virtually all the evidence presented against appellant regarding the larceny of the Mierzwinski vehicle, the error was obviously not harmless. The conviction under Indictment No. 50588 will therefore be reversed and the case remanded for a new trial thereunder.

Appellant argues further that the erroneous admission of the fingerprint identification was “so excessively prejudicial” that it was bound to have prejudicially affected the jury in determining appellant’s guilt or innocence of the other charges against him as well. We see no merit to the argument under the circumstances. Appellant cites no authority, and we know of none, for the proposition that where, as here, the accused has not sought or been denied a severance under Rule 735 of several charges brought against him, an erroneous ruling on the admissibility of evidence as to one of the charges not affecting the admissibility of evidence as to the other charges, is a ground for affecting the judgment on the other charges.

Ill

Appellant’s Possession of Stolen Property

The Oldsmobile in which appellant was apprehended at 9:45 P. M. on 11 December 1974 was owned by Robert Jeffers. Appellant contends that “[h]is presence as a passenger in the automobile is insufficient to connect him to property stolen several hours before at other locations”. As we have indicated, the hubcaps found in the trunk of the Oldsmobile were properly allowed in evidence to support the State’s case against him for their larceny. Except for the due process contention, which we have already disposed of, supra, appellant does not contest that conviction (Count I of Indictment No. 50586).

In addition to the stolen hubcaps, there were also found in the trunk of the Oldsmobile the stolen articles which he was charged with receiving in Count II of Indictment No. 50587. The evidence shows that these articles were in a 1970 Ford belonging to Maude Edna Neilson at the time it was stolen from the Eudowood Plaza Shopping Center in Baltimore County sometime before 7:15 P. M. on 11 December 1974.

A knife and hatchet found on the rear floor of the Oldsmobile in which appellant was a passenger were shown by the evidence to have been in a 1969 Ford van owned by John Robert Meadowcroft, III, at the time it was stolen from the Towson Plaza parking lot on 11 December 1974 sometime between 7:30 P. M. and 8:00 P. M. These articles were included among those appellant was charged with receiving in Count II of Indictment No. 50602.

The four elements of the offense of receiving stolen property are: 1) the property must be received; 2) it must, at the time of its receipt, be stolen property; 3) the receiver must have guilty knowledge that it is stolen property; and 4) his intent in receiving it must be fraudulent. Jordan v. State, 219 Md. 36, 43 (1959). Appellant argues that elements 1 and 3 are not shown by the evidence. We disagree.

In Anglin v. State, 244 Md. 652, at 656, (1966), the Court of Appeals said:

“It has long been established in Maryland that, absent a satisfactory explanation, exclusive possession of recently stolen goods permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief, or, if the circumstances revealed by the testimony so indicate, that he was the receiver of the stolen goods, [citations omitted]”.

In Boswell and Poe v. State, 5 Md. App. 571 (1968) Judge Orth (now Chief Judge) speaking for this Court said at 578-579:

“In Anglin v. State, 244 Md. 652 at 656 the Court used the word ‘exclusive’ in stating the rule but in a number of cases after Jordan there was no reference to the requirement of the exclusiveness of the possession. This Court, in stating the rule, has at times used the word ‘exclusive’ as to the possession and at times made no reference to it. We think it clear that to support the inference the possession must be personal and with a distinct, implied, or express assertion of property by the exercise of complete dominion and right of disposal. A mere constructive possession is not enough; the accused will not be presumed to have stolen articles which he does not know he possesses. It is in the sense of a personal possession and an assertion of property, express, or implied by the exercise of dominion and right of disposal, that the possession is exclusive. So the possession of stolen property is exclusive if it shows exclusion of all persons who arre not parties to the crime, although as to accomplices, the possession of one is the possession of all. See 3 UnderhilVs Criminal Evidence (1957) § 600, p. 1461. Thus, the possession to be exclusive, need not necessarily be in one person and may be a joint possession of several persons. Grimes v. State, 4 Md. App. 607. The term ‘exclusive’, like the term ‘recent’ is a relative one, and its meaning as applied to a given case will vary with the circumstances of the case. 1 Wharton’s Criminal Evidence, 12th Ed., Anderson, § 135, pp. 257-258.” (Emphasis added.)

In the instant case, it is clear that Robert Jeffers had “possession” of the stolen articles found in his Oldsmobile automobile a short time after the Neilson and Meadowcroft vehicles were stolen and from which the stolen articles had obviously been taken. Although appellant denied any implication in the car thefts, he never specifically denied any guilty knowledge of the presence of the stolen articles in the Oldsmobile in which he was apprehended. Moreover, he specifically admitted that he had been in the Oldsmobile with Jeffers on the night of 11 December 1974 since “about eight [o’clock], something like that”. In addition, there was evidence from the appellant himself that a substantial part of his income was gained from acting as a “fence” and selling “hot automobile parts”.

In the circumstances, we hold that the evidence was legally sufficient for the jury to have concluded that appellant had joint exclusive possession of the stolen articles and that he knew they were stolen. As said by this Court in Graham v. State, 6 Md. App. 458 (1969) at 463: “The [trier of fact] is under no obligation to believe the story of appellant, Hale v. State [5 Md. App. 205]. The credibility of the witnesses is a matter for the trier of fact. Jones v. State [5 Md. App. 180], Richardson v. State, 5 Md. App. 719, 722, 249 A. 2d 508”.

IV

Sufficiency of the Evidence for Conviction of Larceny of Two Lincoln Automobiles

(a)

Count II of Indictment No. 50585 charged appellant with stealing Eileen Colvin’s white 1972 Lincoln Continental. The evidence showed that the car was stolen from the Glenmont Towers parking lot in Baltimore County on 11 November 1974. No items from the car were connected with the appellant in any way. The only evidence connecting appellant with the theft of the car was the testimony of Detective Freburger, who testified that appellant had orally “described several vehicles, one being a green Continental, the other being a white Continental, both of them stolen from the Glenmont Tower area. Mr. McLaurin advised me he was implicated in these auto thefts . ..” On cross-examination, however, Detective Freburger conceded that appellant admitted to “stealing one of them. He couldn’t distinguish which one. However, he was able to describe both of them that were stolen that night”. At trial appellant denied stealing either of the cars, implicating instead one Ozzie Hawkins in an effort to help the police “the best I could”. We think this evidence too meager to establish appellant’s criminal agency with respect to larceny of the Colvin automobile. The conviction will therefore be reversed.

(b)

Count I of Indictment No. 50590 charged appellant with stealing a green 1972 Continental automobile belonging to James Henry Farrell. The evidence showed this was the other Continental stolen from the Glenmont Towers parking lot on the evening of 11 November 1974. Here, a tool box shown to have been in the car at the time it was stolen was found in appellant’s garage as the result of a consent search of the garage on 18 December 1974. That evidence effectively cleared up the mystery as to which of the two cars appellant had stolen and, together with appellant’s oral confession, was clearly sufficient to support his conviction of Count I of Indictment No. 50590.

Appellant argues that, since the car was recovered on another parking lot only a short distance away from Glenmont Towers, there was insufficient evidence to support a finding that appellant intended “to permanently deprive the owner” of his property. In the circumstances, we find this argument specious and deserving of no further comment except to say:

“[t]he matter of the appellant’s intention was a question of fact for the determination of the jury and it, not this Court, weighs the evidence in reaching the determination”. Sizemore v. State, 5 Md. App. 507, 518 (1968).

Judgments in Indictments Nos. 50586, 50587, 50590 and 50602 affirmed.

Judgments in Indictments Nos. 50585 and 50588 reversed and remanded for new trial.

      1. The comparison card was never offered in evidence.


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    CLIFFORD LLOYD DiPIETRO v. STATE OF MARYLAND
    [No. 707,
    September Term, 1975.]

      Decided May 6, 1976.

      The cause was argued before Morton, Menchine and Mason, JJ.

      Joseph C. LaVerghetta, Assigned Public Defender, for appellant.

      Henry E. Dugan, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City and Steven Suser, Assistant State’s Attorney for Baltimore City on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Judge Charles D. Harris, in a non-jury trial in the Criminal Court of Baltimore, found the appellant, Clifford Lloyd DiPietro, guilty on a four-count indictment charging forgery and three related offenses. He received concurrent sentences of ten years on each count.

The record indicates that the appellant was employed part-time as a laboratory technician for Dr. Bernard Kleiman from approximately February 1 until August 9, 1974. In July, 1974, while making a routine examination of his cancelled checks, Dr. Kleiman failed to recognize the name of the payee on one of the checks and immediately realized that his signature had been forged. Noticing that the number on the check was far in advance of the numbers he was currently using, he examined his checkbook and found that three checks had been removed. In August, he found a second forged check among his cancelled checks. The appellant’s endorsement appeared on this check. Dr. Kleiman then notified his bank of the problem.

At trial Dr. Kleiman identified the two checks and stated that the drawer’s signature was not his and that he did not know and had never employed the persons whose names appeared on the checks as the payees. He testified that the checks he kept in his office were used to pay office expenses, including salaries. They were kept in an unlocked cupboard in his personal office, although at times the checkbook remained on his desk after he had used it. Dr. Kleiman further testified that while none of his employees ordinarily would have any reason to go into his office, the appellant as well as his other employees had been in without his objection. Only Dr. Kleiman and his associate, Dr. Blankman, were authorized to sign the checks.

Detective Richard Bednarski, a member of the Check Squad for the Baltimore City Police Department, testified that after investigating the incident, he asked the appellant to come into the police station for questioning. After waiving his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (1966)), the appellant stated that he had no knowledge of the forged checks and that he had never had them in his possession. At that time, the appellant voluntarily gave the police officer a handwriting sample and left.

The resulting handwriting analysis by the F.B.I. stated that “Due to unexplained variations, it was not determined whether any of the questioned writing on Q-l and Q-2 [the two forged checks] was or was not written by C. DiPietro, K-l [the appellant].” A Baltimore City crime laboratory report containing the results of a fingerprint comparison test indicated that the appellant’s fingerprint was found on the back of the check on which the appellant’s alleged endorsement appeared. As a result of the fingerprint comparison test, the appellant was arrested and charged with forgery. At trial the results of the F.B.I. handwriting analysis and the Baltimore City crime laboratory fingerprint analysis were read into evidence.

The appellant took the stand and denied having had any involvement in the forgeries. He admitted having been previously convicted of impersonating an officer while in the United States Air Force. He repeatedly denied, however, having been convicted of forgery, uttering and larceny while in the service. Mr. Barry R. Bannister, a fingerprint specialist for the testified that the F.B.I, records showed that appellant had been convicted of committing those crimes under another name.

At the conclusion of the evidence, the trial judge found the appellant guilty of forgery (and other related offenses) with respect to the one check upon which the appellant’s endorsement appeared. Based on his independent comparison of the writing on the forged check with the appellant’s handwriting samples, the judge concluded that the writing on the forged check was, in fact, the appellant’s writing. He reasoned that this finding, coupled with the positive identification of the appellant’s fingerprint on the check, was sufficient evidence from which to find the appellant guilty of forgery.

The appellant first contends that the “trial judge overrode his bounds of discretion” when he used, as the basis for comparing the handwriting on the forged instrument, evidence which was introduced solely for the purpose of making the comparison. In making this contention, he points to the opinion of this Court in Parker v. State, 12 Md. App. 611 (1971), where, in the course of the opinion, there was set forth the following quotation from 80 A.L.R.2d 274 (1961):

“ ‘At common law a general rule developed that the trier of facts could not make a comparison of handwriting, but an exception to this rule came to be almost universally recognized when a proved or admitted standard used for comparison with the disputed writing was already in evidence for other purposes. When comparison was permitted under this exception, most courts in which the question has arisen or has been mentioned have held or recognized that the trier of facts could make the comparison with or without the aid of experts or without being controlled by expert testimony if given * * *.’ ” (Emphasis added.)

There are really two sound reasons why the appellant’s contention lacks merit. It is clear from reading the record that although the trial judge did use the appellant’s endorsement on his paychecks as a standard for comparison, even though the endorsed paychecks were introduced solely for the purpose of comparison, he also used other writing samples in reaching his conclusion. These other writing samples introduced at the trial consisted of the appellant’s signature on the Explanation of Rights form, his signature on the Baltimore City Police Department fingerprint chart and his signature on the F.B.I. fingerprint chart. The Explanation of Rights form was used at the trial to show that the appellant voluntarily waived his Miranda rights when he was called into the police station for questioning. The Baltimore City Police Department fingerprint chart was used to show that the appellant’s fingerprint was found on one of the checks. The F.B.I. fingerprint chart was used as evidence of the appellant’s prior convictions. Thus, all of these latter documents were “already in evidence for other purposes.”

Accordingly, even if appellant were correct in his assertion that Parker holds that a proved writing can only be used for comparison with the disputed writing when the former has already been admitted into evidence for other purposes, his contention would fall since it is apparent that evidence of appellant’s proved signatures was already in evidence for other purposes. The so-called Parker ruling, as appellant would have us read it, is thereby satisfied.

But we think that a more fatal defect in the appellant’s contention is that he misreads the holding in Parker.

The issue in Parker was not whether a proved standard could be used for comparison with the disputed writing even though the proved writing was not already in evidence, for in Parker the proved writing was already in evidence for other purposes. The issue in Parker was simply whether the trier of facts, be it jury or court, could properly determine the genuineness of writings without the aid of an expert and we held that the trier of facts could properly make such a determination. It is true that there is a quotation in Parker from the Court of Appeals decision in Williams v. Drexel, 14 Md. 566, 572 (1860), which states:

“We think that, where a paper, which is admitted or clearly proved to be genuine, is already in a cause, and another paper, pertinent to the issue, alleged to be in the same handwriting, is offered in evidence, the jury may compare the latter with the former.”

It is apparent, however, that Judge Powers, who authored the Parker opinion, was simply delineating as a matter of historical interest the common law rule governing the comparison of disputed writings with proved documents already in evidence, for immediately following the discussion he set forth, almost in toto, Maryland Code, Art. 35, § 12 which was in effect at the time of the decision. Article 35, § 12 then provided:

“Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury, or the court, as the case may be, as evidence of the genuineness or otherwise of the writing in dispute.”

Thus, it becomes clear that appellant’s assertion that Parker stands for the proposition that a disputed writing may only be compared with a proved writing if the latter is already in evidence for other purposes is simply not supported by a careful reading of Parker.

In 1973, Article 35, § 12 was rewritten. It now reads:

“(a) In General. — Except as provided in subsection (b) evidence is admissible in any proceeding to prove the execution of a written instrument attested by one or more subscribing witnesses in the same manner as the instrument might be proved had it not been attested. Evidence of a disputed writing is admissible and may be submitted to the trier of facts for its determination as to genuineness.
(b) Exception. — The provisions of this section do not apply to the proof of the execution of a last will and testament or codicil.” (Maryland Code, Courts and Judicial Proceedings Article, § 10-906 (1974)).

The Revisor’s note states:

“This section is new language derived from Article 35, § 12. The section is divided into two subsections in order to place additional emphasis upon the fact that the elements permissible in legal proceedings do not apply to wills. This statute has been recently construed in Parker v. State, 12 Md. App. 611 (1971). Changes are made in style and language.”

The reference to Parker v. State, supra, which was decided under the old wording, emphasizes the fact that the intended change was in style, not in substance.

Moreover, although some states do limit the admissible standard to a standard introduced into evidence for other purposes, see Anno., 80 A.L.R.2d 272 (1962), we cannot find, even in the absence of the statute, any reason for making such a distinction. If the objective is the determination of the authenticity of a signature, then-the most direct and most certain way to reach a confident conclusion is by allowing counsel to introduce any writing proved to be genuine whether it is otherwise relevant to the case or not. Restricting the standard imposes unnecessary obstacles to the ascertainment of facts. Accordingly, we are of the opinion that the authenticity of a disputed writing may be established by use of any writing proved to be genuine regardless of its relevancy to the rest of the case.

The appellant also contends that under the controlling statute, testimony from an expert witness is a condition precedent to a comparison by the trier of fact. Courts Article, § 10-906. The appellant relies on McIntyre v. Saltysiak, 205 Md. 415 (1954), which involved a contested will. It is apparent, however, from reading the governing statute, which was substantially the same as the present statute, that the general rule is not applicable to caveat proceedings. Courts Article, § 10-906 (b). The present case involves the application of the general rule which does not require expert testimony prior to submission of the disputed document to the trier of facts. See Citizens National Bank v. Curtis, 153 Md. 235 (1927); Parker v. State, supra.

The appellant further contends that the evidence was insufficient to support a finding of guilt. First, he asserts that the testimony showed that his fingerprint could have been placed on the check inadvertently in the course of his employment. Secondly, he argues that since the trial judge found that the appellant had endorsed both checks, the judge erred when he found the evidence sufficient to convict the appellant of forging one check but not the other.

In Lawless v. State, 3 Md. App. 652, 659 (1968), this Court stated:

“The fingerprint evidence, as we construe it, need be coupled only ‘with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime’ * * *. The rule does not require under all circumstances in every case that the State affirmatively and conclusively prove that the accused could not have been there other than a time when the crime was committed.”

In the present case, the appellant’s fingerprint was found on the back of a check which had been removed out of numerical sequence from the rest of the checks and near the end of the series which were currently in use. Since the evidence demonstrated that the appellant had no legitimate reason for handling the checkbook, this was sufficient “to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime.”

Appellant’s contention that the trial judge believed both checks were endorsed by the appellant does not comport with a fair reading of the record. The trial judge stated:

“The endorsement on Check 1789 of Richard J. Frazier and the endorsement on Check No. 1791 of Richard J. Schaeffer, in my opinion, were made by the same person. Very striking similarities in the endorsement of those two apparently fictitious payees. But underneath the endorsement of Richard J. Schaeffer on Check No. 1791 is the endorsement of Clifford L. DiPietro, and in comparing Mr. DiPietro’s endorsement on the paychecks which were offered in evidence and other samples of his handwriting, there is no doubt in my mind that Mr. DiPietro did, in fact, endorse Check 1791 under the signature of the fictitious Richard J. Schaeffer.”

It is clear that the trial judge did not find that both checks were endorsed by the appellant, but rather that only the check on which the appellant’s name appeared was in fact endorsed by the appellant. This evidence, coupled with the fingerprint evidence, was sufficient to convict the appellant of forgery. See Bafford, v. State, 235 Md. 41 (1964).

The appellant finally argues that he “was not fully and adequately informed within constitutional dimensions to freely, knowingly, and intelligently be able to elect his rights * * Unable to find authority for his proposition, he claims that as a matter of policy, before a defendant can make an intelligent and knowing waiver of his claimed fifth amendment right to remain silent, he must be made fully aware of the consequences of his decision. More specifically, he contends that he should have been informed that if he testified, the state could question him about his prior convictions.

While certainly the better practice would be to inform the appellant out of the presence of the jury that by taking the stand he may be cross-examined as to his prior criminal record, we find the omission to do so here is not of such prejudicial dimension as to require reversal of his convictions. Since the appellant was represented by counsel, it is inferred that he was advised of his option not to testify. Stevens v. State, 232 Md. 33, 38-39 (1963). Nor does the trial court have any duty to explain to the defendant the ramifications of his decision to testify. State v. McKenzie, 17 Md. App. 563, 582-83 (1973).

Judgments affirmed.


author: Thompson, J.,

text:
    JOHN HENRY COUSER v. STATE OF MARYLAND
    [No. 794,
    September Term, 1975.]

      Decided May 6, 1976.

      The cause was argued before Thompson, Menchine and Lowe, JJ.

      Richard M. Karceski, Assigned Public Defender, with whom was Harold I. Glaser on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with, whom were Francis B. Burch, Attorney General, William A. Smsher, State’s Attorney for Baltimore City and Arthur Cheslock, Assistant State’s Attorney for Baltimore City on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

John Henry Couser, the appellant, was convicted of possessing heroin by the Criminal Court of Baltimore, Judge John Hargrove presiding without a jury. He was sentenced to a four year term. The contentions on appeal will be set out separately after a brief statement of the facts.

It was stipulated that Detective David Harris and Sergeant Newman would testify that after receiving certain information from an informant they began surveying the entrance way to an alley near Pennsylvania Avenue in the City of Baltimore. They observed the appellant, Couser, enter the alley and disappear from the view of the officers for approximately three minutes, when he reappeared and met with an unknown person. The unknown person and the appellant then parted in opposite directions. A few minutes later the officers resumed their surveillance from the rear of the alley. Soon thereafter they saw the appellant re-enter the alley and walk to the rear of the buildings, again disappearing from their view for approximately one minute before reappearing between two buildings. This time the officers exited their police vehicle. When they were approximately six feet from the appellant, they ordered him to stop, identifying themselves as police officers. Appellant began to run and dropped a package containing two glassine bags of white powder, later identified as heroin. One of the officers picked up the two bags while the other ran after the appellant and apprehended him within a few minutes. The officers searched the general area of the alley for 45 minutes hoping to find a “stash”, which is a street term for hidden narcotics. The search proved fruitless.

Thereafter the appellant testified, denying that he dropped the heroin and giving a legally innocent explanation for his two trips into the alley. On rebuttal, the State called Detective David Harris to the stand who supported the statement given by the State’s Attorney at the beginning of the trial.

I. The appellant was improperly advised of the jury’s function in determining his guilt or innocence should he have elected a trial by jury.

At the beginning of the trial, appellant’s counsel informed the court that the defendant elected a trial before the judge. Thereafter, in attempting to let the record establish that the election was the personal election of the accused, the following transpired:

“Mr. Kroop: Now, furthermore, I have told the Court that we agreed to waive a trial by jury. I have explained to you and think you are aware that a jury consists of twelve persons that would sit there in the jury box. Each of those twelve people would be selected at random from the community of Baltimore City. The jurors would be comprised of men, women, all different races, creeds, colors and religions. They would also have to all agree beyond a reasonble doubt that you were in fact either guilty or not guilty. If all twelve of them did not agree — You could never be found guilty unless all twelve agreed. Do you understand that?
“Mr. Couser: Yeah.
“Mr. Kroop: Now, I want to explain that instead of a jury trial Judge Hargrove will listen to the facts and he, and he alone, will make a decision as to whether or not you are guilty of any of these charges in the first or second count. Do you understand that?
“Mr. Couser: Yeah.”

Appellant points to the error in the information furnished by his counsel that the jurors would have to agree beyond a reasonable doubt that he was not guilty and alleges that this misinformation vitiated his election to have the case tried before the court. We do not agree.

State v. Zimmerman, 261 Md. 11, 273 A. 2d 156 (1971) established that a post conviction proceeding is usually the proper way to determine the validity of a waiver of a jury trial. We think this case illustrates the sound reasoning of Zimmerman, supra. Whether or not the single misstatement in counsel’s explanation of a jury trial was sufficient to mislead the appellant depends on what information counsel had imparted to the accused prior to trial and what information the accused had otherwise acquired. In view of the appellant’s extensive involvement in many prior criminal proceedings, as shown by the record, it is not likely appellant was actually misled, but if he were he is free to establish that fact in post conviction procedures.

II. The appellant’s waiver of his right to a trial by jury, if intelligently made, was coerced by the state’s threat to bring the appellant to trial on a separate, unrelated charge, criminal information number 27400360.

The appellant alleges because the State agreed to, and did, nol. pros, an unrelated charge as part of an agreement to stipulate what the police officers’ testimony in chief would be, he was coerced into agreeing to the stipulation. As the appellant concedes in oral argument such a ruling would be tantamount to holding that plea bargaining is illegal. We decline to so hold.

Plea bargaining has been approved inferentially by the Supreme Court of the United States, Santobello v. New York, 404 U. S. 257, 92 S. Ct. 495, 30 L.Ed.2d 427 (1971), by the Court of Appeals of Maryland, Miller v. State, 272 Md. 249, 322 A. 2d 527 (1974), and by this Court, Sturgis v. State, 25 Md. App. 628, 336 A. 2d 803 (1975). In the instant case there were two unrelated charges pending against appellant. In return for appellant agreeing to proceed on partially stipulated evidence, a nol. pros, was entered on the second charge. We see no coercion. It was a simple agreement which was kept by the prosecutor. If an accused can enter a guilty plea in return for a prosecutor’s agreement to dismiss a second charge, it is obvious there is nothing improper in his agreeing to accept stipulated testimony in return for the same promise. Sturgis, supra.

III. The appellant was not properly advised, nor did he waive or acquiesce in the procedure of stipulating to the State’s case in chief.

Under this heading, the appellant contends that the waiver was improper because he was not advised in open court that he would have a right to a hearing to suppress the contraband seized and oral statement given. He relies on Brookhart v. Janis, 284 U. S. 1, 86 S. Ct. 1245, 16 L.Ed.2d 314 (1966), which he contends held that a stipulated statement of facts was tantamount to a plea of guilty and therefore the accused must be advised of all of the rights set out in Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969), wherein it was held that an accused entering a guilty plea must be advised and understand his right to a jury trial, his right to be confronted by the witnesses against him and that in such a trial the fact that he did not testify could not be used to infer guilt. We are aware of no court that has held that an accused must be further advised as to the manifold rights he waives by entering a guilty plea. We hold there is no necessity for the trial judge to advise an accused of his rights to a hearing to suppress evidence prior to acceptance of a guilty plea or prior to the accused’s agreement to be tried on stipulated facts. In Palmer v. State, 19 Md. App. 678, 680, 313 A. 2d 698 (1974), cert. denied, 271 Md. 742, we held that the proper time to present a Brookhart v. Janis, supra, question was on post conviction proceedings.

We note that the case was not tried on an agreed statement of facts but was tried simply on the stipulation that the police officers’ testimony in chief would be received by stipulation. See Barnes v. State, 31 Md. App. 25, 354 A. 2d 499 (1976).

IV. The failure of the trial court to rule on the appellant’s motion for a judgment of acquittal at the conclusion of the entire case makes the entry of the trial court’s guilty finding a nullity.

The second count of the criminal information charges the appellant with simple possession of heroin. The trial judge did not specifically rule upon the appellant’s motion for a judgment of acquittal, but found a verdict of guilty on that count. In the recent case of State v. Sirbaugh, 27 Md. App. 290, 294, 339 A. 2d 697 (1975), this Court stated that the failure of a trial judge to rule on a motion for acquittal in a jury trial was equivalent to a denial of the motion, although the specific holding was that a trial judge had no authority in a criminal case, unlike a civil case, to withhold ruling on a motion and submit the case to the jury. Although the Court of Appeals in Brice v. State, 254 Md. 655, 255 A. 2d 28 (1969), and this Court in Saunders v. State, 8 Md. App. 143, 258 A. 2d 776 (1969), have held that it is error for a trial judge to fail to rule on a pretrial motion, provided his attention is called thereto prior to the conclusion of the case, the rationale of those cases has no application to a motion to dismiss in a non-jury case. It is apparent the finding of guilty is a clear ruling by the court that there was sufficient evidence to deny the motion. If there were error it would be harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976), Jones v. State, 11 Md. App. 468, 482, 275 A. 2d 508 (1971).

V. The appellant’s sentencing was based upon an impermissible consideration.

The criminal information in the instant case was divided into two counts. The first charged the appellant with possessing heroin “in sufficient quantity to reasonably indicate under all the circumstances, an intent to manufacture and distribute such controlled dangerous substance.” Count two simply charged the unlawful possession of heroin. At the end of the trial, the trial judge stated as follows:

“Mr. Kroop, I think to save you some argument, I think under the circumstances at that point I have to — All inferences must be in favor of the defendant. I think I would have to grant your motion as to the first count. In most cases, as you know, you have a quantity. There’s no quantity. There’s only two bags which is relatively small quantity under the circumstances, and the fact that you don’t have much more than that, I would deny — I would grant the motion as to the first count.” (Italics added).

In imposing sentence, the trial judge stated:

“All right. Well, I have read the report fully and I really honestly feel this gentleman must be incarcerated. The report is not a very good one. His history of crime is extensive. Not just light. It is very extensive. As a matter of fact, he hasn’t spent many years on the street since 1955. And I am satisfied that the evidence in this case clearly established, well, not so much that I think under the circumstances I gave him the benefit of the doubt, but it clearly established that Mr. Couser was involved in the drug traffic. He is not an addict. He says he was not an addict. And he doesn’t have any signs of addiction. Yet his involvement in the narcotic field shows me that he is involved in it in a way for monetary gains and his probation report seems to indicate the same thing. And when you find someone in that if you don’t punish him then I think we might as well give up the chase on narcotics because anyone who will go out and indulge in the business of dispensing narcotics and ruining the lives of hundreds of people and then coming to the Court and asking you to save his, well, I can’t give much consideration to that because it is a sad picture of our society, this narcotic business, and I am satisfied that Mr. Couser was in it. His life style, of course, is — shows that he was in the — pretty much in the business according to the Probation Department. He was living pretty good on his job. Of course, he had a fairly decent job. But, on the other hand, I am satisfied that that is what — that he was in the business of narcotics. So, I will have to give him four years, four years to the Commissioner of Correction from today. He has been on bail all the time.”

The appellant’s contention is that because he was acquitted of the first count of the criminal information of possession with intent to distribute the trial judge committed error in considering that he was a dealer in imposing the maximum sentence for the simple possession. We do not agree. It is apparent to us the trial judge acquitted him of the charge in the first count of the criminal information solely because he was found to be in possession of such a small quantity of heroin rather than on any belief that he was not engaged in the sale of narcotics. In other words, appellant was not charged and acquitted of the sale of narcotics but was charged and acquitted of possession of a quantity sufficient to indicate an intention to sell. Therefore, there was nothing inconsistent in the judge considering the fact that he was engaged in the sale of narcotics in imposing the maximum sentence for simple possession. The trial judge’s reasons for the sentence were well within the principles set forth by the Court of Appeals in Henry v. State, 273 Md. 131, 328 A. 2d 293 (1974), which permitted a trial judge, in sentencing, to consider the accused’s involvement in another crime even though a jury had concluded it could not find that the accused was guilty of the other crime beyond a reasonable doubt.

Judgment affirmed.

Appellant to pay costs.

      . In a non-jury trial, unlike a jury trial, this Court is required under Md. Rule 1086 to review the sufficiency of the evidence on request whether or not there has been a motion filed with the trial judge. Williams & McClelland v. State, 5 Md. App. 450, 247 A. 2d 731 (1968).


author: Orth, C. J.,

text:
    ROSA MARIA KAPNECK v. PHILIP R. KAPNECK
    [No. 836,
    September Term, 1975.]

      Decided May 6, 1976.

    The cause was argued before Orth, C. J., and Menchine and Mason, JJ.

      Ferdinand J. Mack, with whom were Shadoan & Mack on the brief, for appellant.

      James J. Cromwell, with whom were Clark & Cromwell, P.A. on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

This appeal calls for us to examine the authority of a court of equity to grant injunctive relief with respect to its jurisdiction as to divorce and alimony and custody and support of a child. The examination is to be made in the light of Maryland Rule BB 71, § c and a mandate of Courts Art. § 3-603 (a). Rule BB 71, § c reads: “An injunction in an action for divorce, alimony, support of wife fl or child, custody of child or annulment of marriage shall not be governed by this Subtitle.” The statutory mandate referred to declares: “The court shall hear and determine a case of alimony in as full and ample manner as such case could be heard and determined by the Ecclesiastical Courts of England.”

On 11 June 1975 the Circuit Court for Montgomery County, sitting as a court of equity, issued an ex parte pendente lite injunction in an action pending before it whereby Rosa Maria Kapneck (Wife) sought a decree of divorce from Philip R. Kapneck (Husband), alimony, custody and support of minor children, counsel fees and suit money.

On 11 June 1975 Wife filed a verified motion for an order enjoining Husband “from harassing [Wife] and the minor children of the parties.. .See Rule 370, § a 4. The motion set out in detail grounds for the requested order. It was asserted that the house in which the parties lived, and all personal property therein except Husband’s clothing and personal effects were the property of Wife. The same day the chancellor “upon consideration of the verified motion of [Wife], Exhibits l-6[] and the points and authorities in support thereof, and the record herein,” issued an ex parte pendente lite injunction. Husband was enjoined from entering the home without written permission of Wife, from conversing with her by telephone, from threatening her, from touching or assaulting her, and from communicating with her concerning the divorce action except through his attorney. Husband could move for a modification of the order on 10 days notice. On 24 June, Husband moved to vacate and dissolve the injunction and Wife promptly opposed that motion. The chancellor granted Husband’s motion:

“Upon consideration of the Motion of [Husband] to Vacate and Dissolve Ex Parte Pendente Lite Injunction issued by this Court on June 11, 1975, and the Points and Authorities in support thereof, it is, by the Circuit Court for Montgomery County, Maryland, Sitting as a Court of Equity, this 11th day of July, 1975,
ORDERED, that the operation of the Ex Parte Pendente Lite Injunction dated June 11, 1975, be and the same is hereby dissolved and vacated.”

On 6 August 1975 Wife noted an appeal from the order of 11 July 1975. Courts Art. § 12-303 (c) (l).

Although “the Inhabitants of Maryland are entitled to the Common Law of England,” the law of divorce did not come here by that means, because it had no common law foundation. W. T. Nelson, in his historical research for the original edition of his work on divorce and annulment, found that “save for the reign of Henry VIII, the church, in England, from a very remote period extending perhaps even before the reign of Edward the Confessor, kept a close watch upon matrimonial affairs upon the theory that marriage was a sacrament and that it had general control of all things pertaining to the good of the soul. To such extent as the ecclesiastical courts would grant any relief, they followed their conscience and religious tenets rather than precedents. They kept records only as they saw fit, and their decisions were rarely reported.” 1 W. T. Nelson, Divorce and Annulment (2nd ed., 1945) § 1.01, n. 1, hereinafter cited as Nehon. The courts of common law and chancery saw fit to permit this situation to continue. “Not until 1809 was anything resembling a modern ‘divorce court,’ with decisions fairly consistently reported, set up in England; and that was still not a court of law or chancery, but one of the ecclesiastical courts specially designated for the purpose.” In England “[jJurisdiction of matrimonial affairs continued to be ecclesiastical until the establishment, in 1870, of the ‘probate, admiralty and divorce court,’ since which time the subject has been one of lay jurisdiction and handled in a manner similar to that with which we are familiar in most states of the Union.” The church did not recognize an absolute dissolution of an originally valid marriage. Thus it was that in England, and in the American colonies and early states, absolute divorces were obtainable only by act of parliament or of the legislature or equivalent legislative assembly. Church policy precluded the ecclesiastical courts from granting absolute divorces; they granted legal separations (divorces a mensa et thoro) and under certain circumstances declared marriages wholly void. Some of the American colonies and states, including Maryland, followed this lead. “From the earliest times in this State, divorces were granted by, and emanated from, the legislature. . . .” Courson v. Courson, 213 Md. 183, 186 (1957). By Acts 1841, ch. 262, the legislature granted jurisdiction of all divorce actions to the courts of equity of this State. “It was thereafter held that these enactments did not preclude the legislature from granting divorces, Wright v. Wright, 2 Md. 429, 450, but by Sec. 33 of Art. 3 of the Maryland Constitution, the legislature is now prohibited from so doing.” Id.

Unlike the granting of an absolute divorce, power to grant alimony has always been regarded as judicial, not legislative. “[A]n attempt by the legislature to grant alimony was held to be a judicial function and therefore unconstitutional. Crane v. Meginnis, 1 Gill & J. 463, 474 [1829].” Courson v. Courson, supra, at 186. “Hence, though determination of such matters [as compulsory support and the settlement of property rights between husband and wife] is now commonly incident to divorce proceedings, adjudications with respect thereto are ordinary functioning of the courts for which there is no difficulty in finding a proper historical and common-law background.” Nelson, § 1.01. “So, at the present time and for many years past in Maryland, the jurisdiction to hear and determine questions of divorces and alimony, both temporary and permanent, is, and has been, vested in the courts of equity in this State.” Courson v. Courson, supra, at 186.

As we have seen, the General Assembly declared in 1841 that jurisdiction of an action for divorce, alimony, or annulment of marriage was in a court of equity and the statute has survived as Courts Art. § 3-603 (a). The Court of Appeals said in Murray v. Murray, 134 Md. 653, 657 (1919): “It is by statute that the jurisdiction exercised by the courts of equity in this State, in divorce cases, is conferred upon them; which statute likewise limits and prescribes the jurisdiction so conferred.” Nelson elaborates on this as a general proposition. “The power of the courts over divorce suits is derived entirely from the statutes, and is wholly dependent thereon. For example, only such judgments may be entered as are authorized by statute, and all the legislative requirements must be fulfilled to give the court jurisdiction. Not only must the statutes be strictly complied with, but they are also, usually, rather strictly construed.” Nelson, § 1.02. Ordinarily, therefore, to the extent that the proceedings are governed by statutes particularly relating thereto, such statutes are controlling and whether the action is to be regarded as at law or in equity becomes immaterial. “In some states, statutes expressly classify divorce proceedings as equitable, or provide that they are to be governed by equity practice; in which event, of course, the statute is controlling, as the legislature unquestionably has power to place its own classification upon the proceedings.” Nelson, § 1.03. Statutes in most states usually refer practice in divorce cases to equity practice or that in civil actions generally, so that the extent to which practices of the English ecclesiastical courts might be resorted to by way of precedent is now rarely of practical interest. Nelson, § 1.05. Not so in Maryland, however. Courts Art. § 3-603 (a), after providing that a court of equity has jurisdiction in domestic matters, declares: “The court shall hear and determine a case of alimony in as full and ample manner as such case could be heard and determined by the Ecclesiastical Courts of England.” Read literally, this may be construed as applying only to alimony. The Court of Appeals, however, over a century ago, used this reference to the “Ecclesiastical Courts of England” to state that in Maryland divorce practice is founded on the practice of the ecclesiastical courts of England. “The court in such case sits, not in the exercise of its general and ordinary equitable jurisdiction, but as a Divorce Court; and must be governed by the rules and principles established in the Ecclesiastical Courts in England, wherein a similar jurisdiction has been exercised, so far as they are consistent with the provisions of the Code. * * * In respect to the mode in which Courts of Equity shall exercise jurisdiction in divorce cases, and the principles by which they are to be governed, the Code is silent. But from the nature of the jurisdiction itself, it has always been considered that the decisions of the English Ecclesiastical Courts, in similar cases, may properly be referred to as precedents; and they have uniformly been cited and relied on as safe and authoritative guides for the courts of this State in disposing of cases of this kind.” J. G. v. H. G., 33 Md. 401, 406-407 (1870). By 1926 the Court of Appeals, with respect to divorce cases, found it to be “well settled by our decisions that the rules of the ecclesiastical courts of England prevail in Maryland so far as they are consistent with the Code. Emerson v. Emerson, 120 Md. 584.” Clarke v. Clarke, 149 Md. 590, 592 (1926). This view was applied in resolving a question of alimony in Winkel v. Winkel, 178 Md. 489 (1940). The Court said, at 503: “The practice here is founded on the practice of the ecclesiastical courts of England, whence our procedure largely came. DeBlaquiere v. DeBlaquiere, (1830) 3 Hag. Ecc. 322, 162 Eng. Reprint, 1173; Saunders v. Saunders, 1 Sw. & Tr. 72, 164 Eng. Reprint, 634; Kerr v. Kerr, (1897) 2 Q. B. Div. 439, 443; Covell v. Covell, (1872), L.R. 2P. & D. 411, 413, 414.” The rule was affirmed in Dougherty v. Dougherty, 187 Md. 21, 29 (1946), Lickle v. Boone, 187 Md. 579, 582 (1947) and Gold v. Gold, 191 Md. 533, 537 (1948), in each of which the Court said in substantially the same language that since the legislature conferred jurisdiction in all applications for divorce upon the courts of equity, “this Court has recognized the essential difference between a divorce suit and the ordinary equity case. In divorce proceedings the court sits, not in the exercise of its ordinary equity jurisdiction, but as a divorce court and is governed by the rules and principles established in the ecclesiastical courts in England so far as they are consistent with the provisions of the Maryland Code.”

The injunction here was issued by the equity court in a divorce proceeding. Therefore, the court, not sitting in the exercise of its ordinary equity jurisdiction, but as a divorce court, was governed by the rules and principles established in the ecclesiastical courts of England so far as they were consistent with Maryland statutes. The injunction enjoined Husband from doing five specific things. Of the specific acts enjoined, one concerned the trespass by Husband on the real property of Wife: “ORDERED that [Husband] be, and he hereby is, enjoined from entering or remaining upon any portion of the house or land owned by [Wife] located at 10101 Chapel Road, Potomac, Maryland, without the written permission of [Wife] first had and obtained .. . .” The remaining four specific acts enjoined concerned protection of Wife’s person and personal rights from crimes and torts: “FURTHER ORDERED that [Husband] be and he hereby is enjoined from attempting to carry on any telephone conversation with [Wife], ... from making any threats of any nature against [Wife], . . . from touching or offering to touch or assaulting or offering to assault [Wife], and . . . [from communicating] with [Wife] concerning the subject matter of this action except through his attorney of record.” Our attention has not been called to a Maryland statute authorizing the issuance of such an injunction by an equity court in a domestic relations action, and we find no such statute. Nor do we find that authority to issue injunctions was enjoyed by the ecclesiastical courts of England, except, perhaps, to “enjoin perpetual silence” upon a person holding out a marriage. It is asserted in 2 J.P. Bishop, Marriage, Divorce and Separation § 462 (1891) under the heading “What has been the Influence of the Ecclesiastical Practice on Ours”:

“The Injunction, — familiar in equity yet unknown in the common-law tribunals, may be resorted to in divorce cases by courts having equity powers. But there is no pretence that a mere common-law court could issue this process in a divorce litigation without the aid of a statute, since it is unknown in the ecclesiastical practice. ” (emphasis added)

See 1 T.W. Waterman’s Eden on Law and Practice of Injunctions 171-172 (1852). The equity court below, as we have found, was not sitting in the exercise of its general and ordinary equitable jurisdiction but as a divorce court, and therefore, as we have indicated, it was governed by the rules and principles established in the ecclesiastical courts of England. It did not enjoy its usual equity powers. Since the ecclesiastical courts did not have the authority to issue an injunction like the one here, under the firmly established law of this State, neither did the court below.

When the chancellor below dissolved the injunction, he did so “[u]pon consideration of the Motion of [Husband] . . . and the Points and Authorities in support thereof . . . .” Among other claims in his Motion, Husband contended: (1) “There is no statutory authorization for an Ex Parte Pendente Lite Injunction in a divorce action and the Rules, in fact, preclude the entry of such an Injunction”; (2) “There is no general power for a Court of Equity to enter such an Injunction in a divorce action in accordance with Maryland Law”; (3) “[Wife] has provided no source from which a Court of Equity in a cause of action derives the powers to issue such an Injunction.”

The first two claims made in the Motion went to the equity court sitting as a divorce court. As we have indicated, we agree that there is no statutory power or general power bestowed upon an equity court sitting in its judicially established special capacity as a divorce court which permits it to issue such an injunction. In the light of this finding, we need not determine whether Rule BB 71, § c, which provides that the “Injunction” Subtitle shall not govern an injunction in an action for divorce, alimony, support of wife or child, custody of child or annulment of marriage, necessarily precludes the issuance of an injunction in a domestic action.

The third claim of Husband in his Motion went to the general powers of a court of equity. We need not decide whether a court of equity could issue the injunction here issued because, we reiterate, the court below was sitting as a divorce court, not as an equity court, and did not have general equity powers. We observe, however, that the Court of Appeals 'has held that equity will relieve by injunction against continuing or repeated trespasses, committed in pursuance of a single plan or purpose. Baker v. Howard County Hunt, 171 Md. 159, 175 (1936). See Note, 2 Md. L. Rev. 160 (1937). On the other hand, the Court of Appeals has held that in this State no injunction will be granted to restrain the commission of a tort to the person, to restrain or prevent crime, or to enforce the performance of a moral duty, except so far as rights to property are concerned. Chappell v. Stewart, 82 Md. 323, 325-326 (1896). The court iterated its stand in Bank v. Bank, 180 Md. 254, 266 (1942). See Anno., 175 ALR 438, 461 (1948).

We conclude that the court below was correct in dissolving the injunction.

On appeal, Wife presents two questions:

(1) “Does Rule BB70, Maryland Rules of Procedure, preclude the issuance of an injunction in an action for divorce, alimony, support of wife and child and custody of minor children?”
(2) “Do the equity courts of this State have the power to protect the parties to litigation during the pendency therof, by the issuance of a pendente lite injunction against one of the parties
(a) Where the case is one for divorce and alimony?
(b) Where the case is one for divorce, alimony, child custody and child support?”

We have disposed of the first question by finding it unnecessary to reach it.

As to question 2 (a) we have held that the equity court sitting as a divorce court does not have the power to issue such an injunction. Wife points to Dackman v. Dackman, 252 Md. 331 (1969) in which wife sought permanent alimony on the grounds of the husband’s adultery and filed a petition for an ex part,e injunction, which the court issued, against the husband and various other persons and corporations to prevent him from disposing of or removing from the State his considerable assets. Id., at 333. The wife also filed a petition praying that a designated resident of Nevada, where the husband was establishing a domicile, be authorized to serve upon the husband personally the petition for the ex parte injunction and the order of court thereon. The Court of Appeals noted, at 334, n. 1: “The injunction was later modified to a mutually satisfactory form by agreement of the parties.” We do not read Dackman as dispositive of the authority of an equity court sitting as a divorce court to issue an injunction. It is manifest that the authority for the issuance of the injunction was not before the Court of Appeals and was not decided by it.

We note four other cases, not referred to by Wife, in which there was an injunction or enjoining order of an equity court in a divorce or alimony action: Ricketts v. Ricketts, 4 Gill 105 (1846); Gechter v. Gechter, 51 Md. 187 (1879); Stewart v. Stewart, 105 Md. 297 (1907); and Snyder v. Snyder, 159 Md. 391 (1930). In each the trial court enjoined the husband from disposing of his property. In none was the authority of the trial court to issue the injunction or order questioned on appeal and that point was not considered by the Court of Appeals.

Wife supports the issuance of the injunction here by quoting from Myerberg, The Practical Aspects of Divorce Practice, 150 (2d ed. 1961), in which techniques are suggested to protect the wife from physical violence and harassment. One such suggestion, “if the case is already in the divorce court, is to petition the court for an injunction restraining the husband from molesting [the wife].” It is asserted: “A prayer for such relief can, of course, be included in the bill of complaint at the time of filing suit, and this preliminary aspect of the case should be set down and pressed for prompt hearing before the court.” The authority for this statement is not given and we are not persuaded by it to depart from our contrary view.

Wife also quotes other treatises and texts which indicate that the trial court may enjoin harassment of the wife by the husband. As we construe such authorities, however, they are in the frame of reference of proceedings governed by statutes particularly relating thereto, or statutes referring practice in divorce cases to equity practice or that in civil actions generally. They are not in the context of a court of equity sitting with special jurisdiction as a divorce court and bound by rules and principles of the ecclesiastical courts of England.

In the argument on question 2 (b), Wife suggests that even though an equity court derived its jurisdiction in the case for divorce, alimony or annulment from the ecclesiastical courts of England, her action also seeks custody and support of minor children. “That jurisdiction,” she asserts, “is not in any way derived from the Ecclesiastical Courts of England, and, consequently, the court in such proceeding may enter an injunction under its general equity powers.” Even if a court in the same action may sit as a general equity court as to some relief prayed and as a special divorce court as to other relief prayed, the injunction here did not go to the custody and support of the minor children but to the harassment of Wife. We think it clear that it was issued by the court as a divorce court, and we have found that there was no authority for it. And although the court as an equity court may have enjoined a continuing trespass in certain circumstances, we have seen that it was without power, as the law in this jurisdiction stands, even in that capacity, to prohibit the acts it attempted to restrain.

We have a final observation. Whatever the reasons were a hundred years ago to distinguish between a divorce suit and the ordinary equity case and to so construe the statutory provisions reading that the equity court “shall hear and determine a case of alimony in as full and ample a manner as such case could be heard and determined by the Ecclesiastical Courts of England” in such a way as to establish a difference in the powers of a court of equity sitting as a divorce court vis-á-vis a court of equity sitting in exercise of its ordinary equity jurisdiction, we think that the purposes have been fully served. The artificial distinction drawn between divorce jurisdiction and equity jurisdiction now leads only to confusion and uncertainty. Nelson points out, § 1.05: “Due to the scope of modern divorce laws in most states, and the fact that such statutes usually refer practice in divorce cases to equity practice or that in civil actions generally, the extent to which practices of the English ecclesiastical courts might be resorted to by way of precedent is now rarely of practical interest.” We see no real reason today for the old rules and principles of the ecclesiastical courts of England to be of substantive interest in this State and are aware of no compelling incentive for Maryland to remain unique in this respect. Nelson suggests, § 1.05, with respect to reference to ecclesiastical precedents that “[i]t may well be regarded as doubtful whether, in matters of practice, it would be proper to do so, as no American court is a heritor of, or of comparable purpose with, the ecclesiastical courts of England and Scotland.” The matter may be easily remedied by statute. Perhaps the General Assembly will be favorably disposed to enact appropriate legislation.

Order of 11 July 1975 dissolving injunction of 11 June 1975 affirmed; appellee to pay costs.

      . Courts Art. § 3-603 (a) provides: “A court of equity has jurisdiction in an action for divorce, alimony, or annulment of marriage.”

      . Courts Art. § 3-602 (a) provides: “A court of equity has jurisdiction over the custody, guardianship, legitimation, maintenance, visitation and support of a child.” “Legitimation” and “visitation” were inserted by Acts 1975, ch. 317, effective 1 July 1975.

      . Code, Art. 16, § 3 provides: “In cases where a divorce is decreed, alimony may be awarded to either spouse.” The phrase “to either spouse” was added by Acts 1975, ch. 332, effective 1 July 1975. “Alimony” as used in the section is commensurate with “support”. Dackman v. Dackman, 252 Md. 331 (1969); Colburn v. Colburn, 15 Md. App. 503 (1972). See LaChance v. LaChance, 28 Md. App. 571 (1975).

      . The BB Subtitle bears the heading: “Injunction”. Rule BB 71, § a states: “This Subtitle shall apply when an injunction is sought in equity or pursuant to Subtitle BF (Mandamus and Injunction as Ancillary Relief in an Action at Law), subject to sections b and c of this Rule.” Section b concerns labor disputes. Section c, set out above, concerns domestic relations.

        . The Bill of Complaint was filed by Wife on 2 June 1975 and docketed as Equity No. 52566. It contained what was designated as “Count One” and “Count Two”. But see Maryland Rule 370, § a 1. The prayers for relief. Rule 370, § a 3, under Count One were for a decree of divorce a vinculo matrimonii, for the care and custody, pendente lite and permanently, of the four minor children of the couple, for alimony pendente lite and permanently, for support and maintenance for the minor children, pendente lite and permanently, for counsel fees and suit money, and that Wife be awarded “such other and further relief as to the Court may seem meet and proper and the exigencies of the case may require.” The prayers for relief under Count Two were the same except that a decree of divorce a mensa et thorn was sought.

      . There were allegations in the Motion that in 1974 Wife had sued Husband for divorce a vinculo matrimonii based upon adultery but forgave him, dismissed the action and reconciled with him upon execution of an agreement. The ^agreement was appended to the Motion as Exhibit No. 6. Among other things, Husband agreed to convey the jointly owned home and contents to Wife.

      . Exhibits 1-5 were photographs of the physical damage Husband had allegedly done to the house.

      . In the interim, Husband answered Wife’s Bill of Complaint and filed a Counter-Bill seeking a divorce a vinculo matrimonii, a divorce a mema et thorn, custody of the children, a recision of the reconcilation agreement and restoration of the property conveyed by him to Wife. Wife answered the Counter-Bill. The present status of the divorce actions is not shown in the record before us. Upon joint motion of Wife and Husband the court below ordered the Clerk of that court to transmit to the Court of Special Appeals certified copies of the original papers. Rule 1026, § d.

      . Art. 5, Declaration of Rights, Constitution of Maryland.

      . The preceding quotations and historical summary are from Nelson, § 1.01.

      . Now Courts Art. § 3-603 (a). See note 1 supra.

      . Section 33, Art. 3, Constitution of Maryland, provides inter alia: “The General Assembly shall not pass local, or special Laws, in any of the following enumerated cases, viz:... granting divorces....”

      . For a history of alimony see Courson v. Courson, supra, at 185-186.

      . Nelson, § 1.03 states, footnotes omitted:
      “Divorce suits are civil proceedings, and are commonly thought of, in most states, as suits In equity. This is doubtless due to the fact that the hearings are usually relatively informal and the issues are rarely tried to a jury even in contested cases. Many decisions of courts of last resort have referred to such proceedings as equitable, or in the nature of equitable proceedings, or controlled generally by equity practice and principles. To treat a divorce suit as one in equity is historically an error, however, as a suit for absolute divorce was unknown to the common law, either in the law courts or in chancery. Such a suit is sui generis. Because of the interest of the state in the continuance and solidity of the marital relation, it may be proper to apply thereto equitable maxims, such as the ‘clean hands’ requirement, and to relax the practice to accord with the more liberal rules of equity proceedings and of trials generally by the court without a jury; but the better reasoned decisions indicate that, save as procedure is relaxed to this extent to afford expedition and extend the realm of permissible inquiry, a divorce proceeding is actually and properly to be classified as an action at law rather than a suit in equity. If equitable considerations are to be invoked or applied, in the absence of statute making the proceedings equitable, it should be on grounds of public policy rather than in the name of equity. On the other hand, such matters as the awarding of alimony, and determining custody of children and providing for their support, though commonly incident to a divorce suit, have a distinct origin and are properly to be regarded as independent causes of action only permissibly joined with the cause of action for divorce, usually by virtue of statute. In so far as they are concerned, courts of equity historically had jurisdiction, and the proceedings are truly equitable.”

      . “In Maryland, there never was an Ecclesiastical Court....” Courson v. Courson, supra, at 185. It was the High Court of Chancery (or the Court of Ordinary) which had, “under the Provincial Government, entire jurisdiction of claims for alimony, or separate maintenance, from the husband based on his misconduct.”

      . 3 Blackstone’s Commentaries 123 (Hammond ed., 1890) states that of the matrimonial causes, one of the first and principal is “when one of the parties boasts or gives out that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other in the spiritual court; and, unless the defendant undertakes and makes out a proof of the actual marriage, he or she is enjoined perpetual silence upon that head, which is the only remedy the ecclesiastical courts can give for this injury.”

      . Indeed, the jurisdiction of the ecclesiastical courts of England was “defective in the ability to enforce its decrees. No other process exist[ed] but excommunication.” 3 Blackstone’s Commentaries 551 (Gavit, 1941). See M. Hale, The History of the Common Law of England 30-31 (6th ed. 1820).
      Blackstone observed that there were “many obstinate or profligate men who would despise the brutum fulmen of mere ecclesiastical censures.” Therefore, the common law “compassionately steps in to the aid of the ecclesiastical jurisdiction, and kindly lends a supporting hand to an otherwise tottering authority.” By the common law “an excommunicated person was disabled to do any act, that is required to be done by one that is probus et legalis homo. ” 3 Blackstone’s Commentaries 132 (Hammond ed. 1890).
      Gavit notes at 551, n. 4: “Excommunication is now prohibited. In lieu thereof, the defendant is pronounced contumacious.”

      . We list them as they are cited in Wife’s brief: High on Injunctions, 4th ed., pp. 1389-1390; 27 A. C.J.S. § 103; Law of Domestic Relations, Clark, pp. 392, 393, 394; 24 Am. Jur. 2d, 1142-1143.