author: Melvin, J.,

text:
    DONNIE CHAVEZ DORSEY v. STATE OF MARYLAND
    [No. 961,
    September Term, 1975.]

      Decided April 15, 1976.

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

      Nathaniel Crow Fide, Jr., Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City and John Prevas, Assistant State’s Attorney for Baltimore City on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On April 15, 1975, the defendant, Donnie Chavez Dorsey, was brought to trial in the Criminal Court of Baltimore on criminal information number 67402585, charging him with attempted robbery with a deadly weapon. After a court trial he was found guilty and sentenced to the Division of Correction for a period of twelve years.

As appellent was only 16 years of age at the time of the alleged crime (30 October 1973), the principle issue raised in this appeal is whether, since there was no waiver by the juvenile court, the Criminal Court of Baltimore lacked jurisdiction to try him. Determinative of the issue is our interpretation of that portion of the public general law that exempts from the juvenile court its exclusive original jurisdiction, in certain cases, over children under 18 years of age. The specific exemption here involved and in effect at the time of the alleged offense provided, in pertinent part, that the juvenile court did not have jurisdiction over:

“A proceeding involving a child who has reached his sixteenth birthday, alleged to have done an act which, if committed by an adult, would be punishable by § 488 of Article 27 as robbery with a deadly weapon . ...”

In Broadway v. State, 23 Md. App. 68 (1974), in construing this very language, we held that it expressed “the clear legislative intent . . . that a child of 16 years or older, alleged to have committed the crime of robbery with a deadly weapon, is without the jurisdiction of the juvenile court”. The State argues now that we should construe the statute as including within the exemption the separate crime of attempted robbery with a deadly weapon as well as the crime of robbery with a deadly weapon. As we understand the argument, it is based on three factors which the State contends show the legislative intent supporting such a construction:

1) Pursuant to Article 27, § 488, the punishment for both crimes is identical.

2) “[A] perpetrator of the crime of robbery with a deadly weapon is not, or should not be, rewarded for his failure to consummate the larceny and reap the ‘fruit’ of the illegal act.”

3) The 1975 amendment (note 1, supra) “more clearly specified the legislative intent that the juvenile court was not to have jurisdiction over the crime of robbery with a deadly weapon, nor was it to have jurisdiction over ‘all other charges against the child arising out of the same incident’ ”.

We find no merit in any of the contentions.

The State concedes that on its face the statute under consideration is free from ambiguity. Attempted robbery with a deadly weapon is simply not within the exemption. If it had been intended to be included, it would have been a simple matter for the Legislature to have done so. It did not. For us to supply the supposed omission would amount to usurpation of the legislative function. In Slate v. Zitomer, 275 Md. 534 (1975), the Court of Appeals, quoting with approval from Amalgamated Insurance v. Helms, 239 Md. 529, 535-536 (1965) said:

“.. . [Cjourts may not ‘attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature’ ”.

With respect to the 1975 amendment, we observe that even if we were to interpret it as including attempted armed robbery, such an interpretation would not warrant a similar interpretation of the statute in effect at the time of the offense here involved or at the time of trial. Moreover, we think it at least doubtful even under the 1975 amendment that, absent a waiver by the juvenile court, criminal courts of general jurisdiction would have jurisdiction to try a juvenile for attempted armed robbery unless he were also “alleged to have committed the crime of robbery with a deadly weapon . . . arising out of the same incident”.

Judgment vacated.

      . Chapter 772, Acts 1973, effective 1 July 1973, amending Code Art. 26, § 70-2 (d) (3).
      The wording of the exemption was further amended by Chapter 2, Acts 1973 (1st Sp. Sess.), effective July 1, 1974, codified in the Courts and Judicial Proceedings Article (Courts Article) as § 3-808(4) to provide:
      “The Court does not have jurisdiction over:
      (4) A child 16 years old or older alleged to have committed the crime of robbery with a deadly weapon . ”

      The most recent change in the exemption was effected by Chapter 554, Acts 1975, effective 1 July 1975, codified in Courts Article (1975 Cum. Suppl.) as § 3-804 (d) (4), providing that the juvenile court does not have jurisdiction over:

        “a child 16 years old or older alleged to have committed the crime of robbery with a deadly weapon as well as all other charges against the child arising out of the same incident...”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF MARYLAND v. WILLIAM JEROME SMITH
    [No. 618,
    September Term, 1975.]

      Decided May 3, 1976.

    The cause was argued before Thompson, Powers, Menchine and Melvin, JJ.

      Michael James Kelly, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, David B. Allen, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County and Richard P. Arnold, Assistant State’s Attorney for Prince George’s County on the brief, for appellant.

      David K. Rumsey, Assigned Public Defender, with whom were Alan H. Murrell, State Public Defender and Edward P. Camus, Public Defender for Prince George’s County on the brief, for appellee.
   Per Curiam.

At a hearing in the Circuit Court for Prince George’s County on 16 June 1975, Judge William B. Bowie granted appellee’s motion to dismiss Indictment No. 14,584 on the ground that appellee had been denied his constitutional right to a speedy trial. In so doing, Judge Bowie commented, “I can’t conceive of a more worthy petition that could be filed to dismiss for lack of speedy trial than this case”. After our own “independent constitutional appraisal” (Epps v. State, 276 Md. 96, 109 (1975)), we completely agree.

We also agree with the State’s comment to Judge Bowie at the hearing that the events leading up to the dismissal were “a rather complicated maze of circumstances”. From the record before us, briefs and oral arguments, we glean from this “maze” the essential facts set forth below.

I

On 9 November 1971, the appellee, William Jerome Smith, was charged by Indictment No. 11,877 with armed robbery. The crime occurred on 14 July 1971 at a Safeway Store in Prince George’s County. There were three victims, all employees of the Safeway Store: Marshall Howell, Milda C. Parker and William L. Savoy. Indictment No. 11,877 charged Smith with robbing only the first victim, Marshall Howell. The State explained at the hearing below:

“[Indictment No.] 11,877 is the same case as [Indictment No.] 14,584. The same victims are listed in the police report, the same victims were known to all the parties. The State’s Attorney’s Office at that particular time apparently had the policy of indicting on only one victim. Of course, that has proven not to be a very wise way to work it”. (Emphasis added.)

At the time of his indictment (No. 11,877), Smith was incarcerated in the District of Columbia on unrelated charges arising from crimes committed in that jurisdiction. The State attempted to extradite Smith, but extradition was denied on 12 April 1972. The State appealed from that decision on 24 April 1972, but withdrew the appeal on 5 June 1972. Despite the denial of extradition, the State was able to obtain Smith’s presence in Prince George’s County for arraignment on 22 November 1972.

In January 1973, Smith was transferred to the Federal Penal Facility at Ashland, Kentucky, where he remained until May of 1974, a period of 15 months. In May 1974, pursuant to a writ of habeas corpus ad prosequendum, Smith was brought back to Maryland where he remained incarcerated in the Prince George’s County Detention Center until 16 June 1975, a period of more than a year — with the exception of a return to the federal authorities for approximately one month.

On 20 May 1974, Smith’s motion to dismiss Indictment No. 11,877 for lack of a speedy trial was denied by Judge Robert B. Mathias with the proviso that the case be tried within 30 days. Nine days later, on 29 May 1974, the State obtained Indictment No. against Smith. This indictment was the same in all respects as No. 11,877 except that it named Milda C. Parker and William L. Savoy as victims instead of Marshall Howell. Howell was then no longer a resident of Maryland and the State considered it doubtful that he would be available for trial.

Both indictments were scheduled for trial on 3 July 1974, but because of a mix-up in the Public Defender’s Office, Smith appeared on the day of trial without counsel and the State’s motion to consolidate the cases was denied. The State then moved to continue No. 11,877 in order to allow for subsequent consolidation, but when the continuance was denied, the State nolle prossed the charges contained in that indictment (No. 11,877).

Indictment No. 14,584, however, was continued to 9 October 1974. The case actually came on for trial on 10 October 1974. On that day, prior to commencement of the trial, Smith moved to dismiss on the ground that he had been denied a speedy trial. The trial judge held the motion sub curia pending trial on the merits. After a jury verdict of guilty on both armed robbery counts (as to the victims Parker and Savoy), the motion was denied.

A motion for new trial was timely filed and on 6 November 1974, the motion was granted. The State entered an en banc appeal from the trial judge’s ruling on the motion. On 31 December 1974, the en banc panel affirmed the ruling. The new trial was set for 10 February 1975. But on the day of trial, the case was postponed by the trial court when it was discovered that some members of the jury panel summoned to hear the case had been involved in the first trial. The retrial was then set for 15 April 1975. On that date, however, the case was continued because of the temporary illness of appellee’s counsel. Subsequently, the case was set for trial on 11 June 1975, and then rescheduled for 18 June 1975.

On 2 June 1975, appellee filed another motion to dismiss the indictment on the ground that he had been deprived of his constitutional right to a speedy trial. It was this motion, heard on 16 June 1975, that Judge Bowie granted and from the granting of which the State has appealed.

Throughout appellee’s period of incarceration in Prince George’s County beginning in May of 1974, the record reflects numerous pro se motions for a speedy trial and requests to be sent back to the federal authorities so that he could resume participation in various rehabilitative programs available in the Federal Penal System.

On 2 July 1974, 3 years after the crime occurred and 2 years and 8 months after appellee was first indicted, an alibi witness died.

II

The State concedes in its brief that “[t]he delay in this case ... is clearly long enough to be presumptively prejudicial”, citing Epps v. State, 276 Md. 96 (1975) and Barker v. Wingo, 407 U. S. 514 (1972). The State further concedes that “two years, 4 months, and 11 days” of the delay are “chargeable” to the State. The State further characterizes 10 months of the delay as “neutral”. It “charges” appellee only with the 7 months delay between the date of first indictment (9 November 1971) and .the date the State dismissed its appeal of the District of Columbia order denying extradition (5 June 1972).

Without further analysis, we think the concessions of the State together with a mere recital of the facts establishes without question that appellee was denied his constitutional right to a speedy trial under the Sixth Amendment, and that the trial judge properly granted his motion to dismiss the indictment against him. Barker v. Wingo, supra; State v. Wynn, 26 Md. App. 39 (1975); State v. Jones, 18 Md. App. 11 (1973); State v. Hunter, 16 Md. App. 306 (1972).

Order affirmed.

Costs to be paid by Prince George’s County.

      . Subsequently, the order denying extradition was “withdrawn”.


author: Powers, J.,

text:
    OKINO ALAN JACKSON (a/k/a Okino Jackson Alan) v. STATE OF MARYLAND
    [No. 426,
    September Term, 1975.]

      Decided May 5, 1976.

      The cause was argued before Powers, Gilbert and Menchine, JJ.

      Carm,el Snow, Assigned Public Defender, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Suhsher, State’s Attorney for Baltimore City and Leslie Stein, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

The critical evidence against Okino Alan Jackson, the appellant in this case, came before the jury “second hand”. Therein lies the basis of this appeal. At a jury trial in the Criminal Court of Baltimore, presided over by Judge Harry A. Cole, Jackson was convicted of carnal knowledge of a woman child under the age of fourteen years. The sentence was 21 years.

Foregoing the usually less effective shotgun attack upon everything in the record, from arrest to commitment, appellant takes sharp aim at one target. He argues that admission in evidence of res gestae statements made by a witness not competent to testify denied his right to cross examination under the confrontation clause of the Sixth Amendment.

The Hearsay Evidence Admitted

The facts relevant to the issue before us are not complicated. The events upon which the charge was based took place on 21 April 1974. Corretta Venable, then 4 years and 3 months old, lived with her family in the 1000 block of North Broadway, in Baltimore. Her mother, Lorraine Venable, testified that Corretta had been playing at the house of another child in the same block. At about 2:00 P.M. Mrs. Venable, looking out an upstairs window, saw Corretta coming home. She said she knew from the expression on the child’s face that something was wrong with her. She called to Corretta to come upstairs. The transcript shows:

“Q [By Mr. Stein, Assistant State’s Attorney]: Tell the ladies and gentlemen of the jury what happened when she came into the house.
A I asked what was wrong. She said, ‘Kino - -’
MR. LEVINE [Defense counsel]: Objection.
THE COURT: Overruled.
BY MR. STEIN:
Q Go ahead, Ms. Venable.
A She said, ‘Kino done it to me.’ I said, ‘Done what to you?’ She was crying. She said, ‘He took my pants off, my panties.’
MR. LEVINE: Objection.
THE COURT: Overruled.
MR. LEVINE: To this continuous testimony, Your Honor.
THE COURT: It’s overruled.
BY MR. STEIN:
Q Go ahead, Ms. Venable.
A ‘And my shoes. He put his wee-wee in me,’ and she pointed down to her vagina. I then laid her on my bed, and pulled her panties down, and I looked in her vagina, and it was just like she was on her menstrual period.
MR. LEVINE: Objection as to what it was like.
THE COURT: Don’t characterize. Tell us what you saw.
BY MR. STEIN:
Q What did you see when you looked at her vagina?
A I seen blood down there.
Q Ms. Venable, prior to this difficulty, or before this day, had you ever seen blood down there before?
A No, I haven’t.
Q What was then your reaction when you saw the blood on her vagina?
A I started screaming and hollering. I called my oldest daughter.
Q What is the name of your oldest daughter?
A Paretta Venable.”

Mrs. Venable identified the appellant in court as the person known in the neighborhood as Kino, an uncle of Corretta’s playmate.

In the cross examination of Mrs. Venable the transcript reads:

“Q [By Mr. Levine]: Now, how many questions did you ask her before she gave her response?
A The only question I asked her was what was wrong, and she told me.
Q What were her exact words?
A She kept on saying, ‘Kino done it to me. Kino done it to me. Kino done it to me,’ and she was just crying and crying.”
“Q Well, could you please recall what you stated earlier about how she appeared when she first entered the house?
A She had an expression on her face. I knew something was wrong with her.
Q What was the expression on her face.
A Like she was getting ready to cry. After she got into the house, she just started to crying and crying. She said he put a knife to her leg.”

Paretta Venable, Corretta’s 19 year old sister, testified, in somewhat less detail, and also over objection, to substantially the same account of what Corretta said when s.he came home. After Mrs. Venable and her older daughter Paretta had testified, Judge Cole held a hearing in chambers to determine whether Corretta Venable was competent to testify as a witness at the trial. Corretta and her mother were present, as well as the accused and both counsel. The proceedings were recorded and transcribed. The judge ruled that the child, who by then had just reached her fifth birthday, was not competent to testify. That determination was within the court’s discretion, and is not questioned.

There was other incriminatory evidence, but our decision turns on the admissibility of the testimony we have set out above. If admitting that testimony over objection was error, the error surely was not harmless, Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976), and appellant’s conviction would be reversed. If the rulings of the court were correct the conviction would stand.

The statements that the mother testified were made to her by the child were indeed genuine hearsay. The witness related what another person had said at another time and place. The evidence was offered, not merely to prove the fact that such utterances were made, but to .prove, as substantive evidence, the truth of the facts stated in the utterances.

The Dual Aspect of the Question

One aspect of our inquiry is whether, under the circumstances shown, the statements, although hearsay, were admissible under an exception to the rule which ordinarily excludes hearsay evidence. The other aspect of our inquiry is whether the admission of the statements, even if they pass muster under the rules of evidence as an exception to the hearsay rule, denied the accused his constitutional guarantee of the right to confront and cross examine witnesses against him.

The Statements Were Excited Utterances

One of the exceptions to the hearsay rule permits the admission in evidence of hearsay sometimes described as excited utterances, or spontaneous exclamations, or the less precise term, res gestae. In 6 Wigmore, Evidence, § 1747, (3d ed. 1940), the author discusses the exception in terms of the principles on which it is based. One is, the author says,

“* * * the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.”

Other principles, those of necessity to resort to the hearsay statement, and the circumstantial probability of its trustworthiness, are explained in greater detail in §§ 1748 and 1749.

Those principles have been applied numerous times as the law of Maryland.

In Estep v. State, 14 Md. App. 53, 286 A. 2d 187, cert. den., 265 Md. 737 (1972), Judge Gilbert, speaking for this Court, cited a long list of cases in the Court of Appeals and in this Court dealing with the admissibility in evidence of excited or spontaneous utterances under an exception to the hearsay rule. Estep and many, but not all, of the cited cases involved a report or complaint by the victim of a sexual assault. Several of the cases, such as Green v. State, 161 Md. 75, 155 A. 164 (1931), support the admissibility of a hearsay report as proper to corroborate the victim’s evidence when the defense is consent, or that the charge is false.

A much less explicit complaint, made by a four year old child to her mother some four or five hours after the occurrence, was held by us in Smith v. State, 6 Md. App. 581, 586-87, 252 A. 2d 277 (1969), to be admissible through the mother as original evidence, although the victim herself was not a competent witness.

Even more analogous, if possible, to the legal principle involved, were the facts in a child abuse case, Moore v. State, 26 Md. App. 556, 338 A. 2d 344 (1975). A 3 1/2 year old boy was taken to the hospital, with extensive injuries. The surgeon testified that he asked the child why his tummy was hurting him. The witness quoted the response, “Daddy was mad, Daddy did it.” In his opinion for the Court Judge Moylan said, at 560:

“In response to the question as to ‘why his tummy was hurting him,’ the child declared, ‘Daddy was mad, Daddy did it.’ This, of course, is classic hearsay. The witness on the stand, Dr. Chilimindris, was recounting an out-of-court declaration by the three and one-half year old declarant which was being offered for the truth of the thing asserted — to wit, to prove that ‘Daddy did it.’ The declarant was not on the stand and, indeed, may have been incompetent (by virtue of age) to take the oath. He was not, therefore, subject to cross-examination.
“We hold, however, that the out-of-court declaration was admissible in evidence upon a well-recognized and long-established exception to the Hearsay Rule — as an excited utterance which is a variety of the broader category known as spontaneous declarations.”

After setting out the reasoning of the foremost text writers on the subject, and citing numerous Maryland decisions which have applied the principle, Judge Moylan concluded, at 566:

“In the case at bar, this three and one-half year old child was in acute distress and suffering significant pain in a hospital emergency room within hours after the inflicting of massive injuries. It is stating the obvious to hold that the trial judge did not abuse his discretion in concluding that the declaration in issue was surrounded by substantial guarantees of trustworthiness and was not uttered designedly with a view to making evidence. Under those circumstances, it was clearly admissible.”

We have no difficulty whatever in holding that admission of Mrs. Venable’s testimony relating what her daughter Corretta reported to her, did not violate the rule against hearsay. As Judge Moylan said for the Court in Moore v. State, supra, at 561:

“The issue [of testimonial competence of the out of court declarant] is, furthermore, irrelevant since the testimonial qualifications do not apply to spontaneous declarations. In dealing with the declarant of an excited utterance, 6 Wigmore on Evidence (3d Edition 1940) said at § 1751, p. 156:
‘Does the disqualification of infancy . . . exclude declarations otherwise admissible? It would seem not; because the principle of the present Exception obviates the usual sources of untrustworthiness ... in children’s testimony; because, furthermore, the orthodox rules for children’s testimony are not in themselves meritorious . . . and, finally, because the oath-test, which usually underlies the objection to children’s testimony, is wholly inapplicable to them.’ ”

The Right of Confrontation Article 21 of the Declaration of Rights of Maryland says:

“That in all criminal prosecutions, every man hath a right * * * to be confronted with the witnesses against him * *

This was organic law in Maryland long before Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965), •held that a similar guarantee in the Sixth Amendment to the Constitution of the United States was applicable to State criminal prosecutions. The Sixth Amendment guarantee is that:

“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * *

Both the Federal and the State guarantees of the right of confrontation appear to be identical. We know of no case which has considered them to be otherwise. Both, then, are equally binding in criminal prosecutions in Maryland, as a matter of Federal as well as State constitutional law.

In State v. Collins, 265 Md. 70, 288 A. 2d 163 (1972), the Court of Appeals held that the constitutional right of the accused to confront a witness against him was violated by the admission in evidence of a pretrial deposition of a State witness, at which the accused was not present and had not waived his right to be present. The Court went on to point out, however, that the deposition testimony was not taken as required by Maryland Rule 727, and was not admissible under any of the recognized exceptions to the privilege of confrontation.

The principle has been recognized and applied in many other cases by the Court of Appeals and by this Court, but never in the context of a collision between the right of confrontation and the admissibility, under a recognized exception to the hearsay rule, of an excited utterance by a person not available or not competent to testify at the trial.

We think it is significant that in none of the Maryland cases dealing with admissibility of excited utterances has the right of confrontation been mentioned. It is also significant that the Supreme Court seems never to have considered the right of confrontation in relation to an excited utterance exception to the hearsay rule.

A careful examination of the Supreme Court’s pronouncements involving the right of confrontation discloses no affirmative expression of a rule to be applied to the case now before us. The cases, and the nature of the evidence as to which the accused claimed he was denied his right of confrontation are: Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892), dying declaration; Mattox v. United States, 156 U. S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895), prior sworn statement; Kirby v. United States, 174 U. S. 47, 19 S. Ct. 574, 43 L. Ed. 890 (1899), dying declaration, use of record of prior trial; Motes v. United States, 178 U. S. 458, 20 S. Ct. 993, 44 L. Ed. 1150 (1900), testimony at a preliminary hearing; Dowdell v. United States, 221 U. S. 325, 31 S. Ct. 590, 55 L. Ed. 753 (1911), use of certified record of the course of a trial; Pointer v. Texas, supra, testimony at a preliminary hearing; Douglas v. Alabama, 380 U. S. 415, 85 S. Ct. 1074, 13 L.Ed.2d 934 (1965), use of prior confession made by witness who refused to testify; Barber v. Page, 390 U. S. 719, 88 S. Ct. 1318, 20 L.Ed.2d 255 (1968), testimony at a preliminary hearing; Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968), use of prior confession made by codefendant who did not testify; California v. Green, 399 U. S. 149, 90 S. Ct. 1930, 26 L.Ed.2d 489 (1970), testimony at a preliminary hearing; Dutton v. Evans, 400 U. S. 74, 91 S. Ct. 210, 27 L.Ed.2d 213 (1970), a somewhat confusing plurality opinion concerning statements by an alleged accomplice of the defendant to a cellmate, related in the testimony of the cellmate.

Our conclusion in the case now before us is suggested, in part, by comments by Mr. Justice White in California v. Green, supra. He said for the Court, at 155-56:

“While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U. S. 719 (1968); Pointer v. Texas, 380 U. S. 400 (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.”

He said further, at 161-62:

“Finally, we note that none of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial. The concern of most of our cases has been focused on precisely the opposite situation — situations where statements have been admitted in the absence of the declarant and without any chance to cross-examine him at trial. These situations have arisen through application of a number of traditional ‘exceptions’ to the hearsay rule, which permit the introduction of evidence despite the absence of the declarant usually on the theory that the evidence possesses other indicia of ‘reliability’ and is incapable of being admitted, despite good-faith efforts of the State, in any way that will secure confrontation with the declarant. Such exceptions, dispensing altogether with the literal right to ‘confrontation’ and cross-examination, have been subjected on several occasions to careful scrutiny by this Court.”

We conclude that a State court may, in a criminal trial, under appropriate circumstances, constitutionally dispense altogether with the literal right to confrontation and cross examination. One might view the confrontation clause and the hearsay exceptions as represented by circles, not quite concentric, but sharing a substantial area covered by both. When a question arises in the area covered by both, either rule alone provides sufficient protection to the rights of the accused.

The hearsay rule exception which made admissible in evidence against the appellant the excited utterances of Corretta Venable to her mother and sister came into play only when it was shown by the circumstances that the probability of accuracy and trustworthiness was substantially equivalent to that of statements tested by conventional confrontation and cross examination.

We hold that the rulings of the court admitting the testimony were correct.

Judgment affirmed.


author: Morton, J.,

text:
    ODELL NEWTON v. STATE OF MARYLAND
    [No. 549,
    September Term, 1975.]

      Decided May 5, 1976.

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

      James M. Smith, Assigned Public Defender, with whom were Gebhardt & Smith on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City and Sandra A. O’Connor, Assistant State’s Attorney for Baltimore City on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

In a non-jury trial conducted in the Criminal Court of Baltimore (Karwacki, J., presiding), appellant was convicted of murder in the first degree and the unlawful use of a handgun in the commission of a crime of violence under one indictment and of attempted armed robbery and unlawful use of a handgun in the commission of a crime of violence under a second indictment. A life sentence was imposed upon the murder conviction and a five year concurrent sentence on the handgun conviction. A sentence of twenty years was imposed on the conviction of attempted armed robbery and a five year concurrent sentence upon the handgun violation. These latter sentences were concurrent with the life sentence.

It appears from the record that appellant was visiting friends at an apartment in Baltimore City on the evening of December 19, 1973. During the course of the evening one of his friends, Anthony Stevenson, discharged a blank starter’s pistol four times in the face of another friend, Evelyn Gee. According to Miss Gee, appellant and Stevenson then discussed a “stickup.” Appellant borrowed the revolver of another person in the apartment, Henry Allen, and he and Stevenson departed from the apartment about 10:30 p.m., purportedly intending to get something to eat from a “sub shop” in nearby Edmondson Village.

Stevenson testified that they hailed a cab and appellant sat up front with the driver while he occupied the rear seat. After they had proceeded approximately a block, Stevenson told the driver to stop the cab, that this was a “stickup” and appellant thereupon shot the driver four times with the .38 caliber revolver he had borrowed from Henry Allen. The driver was killed and both Stevenson and appellant fled in opposite directions and then returned to the apartment.

Appellant’s testimony was in substantial agreement with that of Stevenson with the exception that he asserted it was Stevenson who shot the cab driver with Allen’s gun which appellant had turned over to Stevenson shortly after they had left the apartment.

Evelyn Gee testified that when appellant returned to the apartment shortly after the shooting and before Stevenson arrived, “he had this gun in his hand, like he was out of breath and he had been running and he’s standing beside the wall. He started taking these bullets out of the gun. He said, ‘These stopped a cab driver,’ and that he had shot him. * * * He was taking the bullets out of the gun and he was saying, T shot him one, two, three times.’ Then he said, ‘No, I shot him four times,’ and he pointed to his neck. ‘Four times,’ he said, T shot him right there.’ That’s when Anthony Stevenson got there and then they started arguing amongst themselves.”

Appellant testified that he and Stevenson returned to the apartment at the same time; that he gave the gun back to Allen and started to explain what had recently occurred when Allen told him to keep quiet.

In this appeal it is first contended that “the conviction of the Appellant of both felony murder and the underlying felony of attempted robbery violated the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution.” Counsel for appellant “concedes that the Maryland Courts have held previously that such convictions do not offend the doctrine of double jeopardy, nor trigger a merger of the two offenses,” but urges us to review “past decisions in light of the developing Maryland law on merger and the reasoning and analysis contained in the recent Louisiana case of State Ex Rel. Wikberg v. Henderson, 292 So.2d 505 (LA. 1974).”

While we can understand the appellant’s desire to have a review of prior cases, his request for such a review would be better addressed to the Court of Appeals since this Court is bound by the decisions of that Court which have held that felony murder convictions do not violate the double jeopardy clause of the fifth amendment to the United States Constitution. Accordingly, we cannot subscribe to appellant’s first contention.

It is also contended that “The conviction and sentencing of the appellant on two different counts charging the same handgun violation for the same act of conduct arising out of the same incident impermissibly resulted in multiple punishment of the appellant for the same offense and accordingly violated the appellant’s right to not be placed twice in jeopardy.”

Maryland Code, Art. 27, § 36B (d) (1976) provides:

“Unlawful use of handgun in commission of crime — Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five years nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”

Maryland Code, Art. 27, § 441 (e) (1976) provides:

“The term ‘crime of violence’ means abduction; arson; burglary, including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; robbery; and sodomy; or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.”

We cannot agree with appellant’s contention that the constitutional guarantee against double jeopardy was violated simply because the crimes he committed occurred simultaneously during a single transaction. It is argued that “Appellant was convicted on both handgun Counts, which were identically worded and which charged the same violation for the same act, and the Appellant received separate sentences to run concurrently for these two convictions. Accordingly, it is clear that the question to be resolved in the instant case is whether the Appellant eould validly be convicted of two violations of Article 27, § 36B (d) where there had been only one factual episode in which the Appellant did a single act, but was convicted of the two ‘crime(s) of violence’ of felony murder and the underlying felony (attempted robbery). It is respectfully submitted that these two separate convictions and sentences for the same handgun violation arising out of the same lone act violated the Appellant’s right to not be twice punished for the same offense.”

While the proposition advanced on behalf of appellant is, on the surface, somewhat persuasive, we think that a logical analysis of the factual posture in which the case reaches us compels a different conclusion. Appellant was charged in two separate indictments. In one he was charged with murder; in the other attempted armed robbery. In each indictment he was also charged with unlawful use of a handgun in the commission of a crime of violence. As we have seen, murder and attempted armed robbery are separate and distinct crimes and convictions thereof do not merge. It is at once apparent that the appellant used a handgun in the commission of the crime of murder. Likewise, he used a handgun, although it was the same gun, used at the same time, to commit the crime of attempted armed robbery. Since the crimes of murder and robbery do not merge, we see no logical or rational reason why the handgun convictions underlying these separate offenses should somehow merge. As the State points out, an accused could properly be convicted of six separate crimes if he held up six people at the same time, using the same gun. See e.g.; McCall v. Warden, 3 Md. App. 188(1968).

In the case at bar, we, similarly, have non-merging multiple crimes committed by the appellant, although directed to a single victim. Thus, we canno+ agree that the handgun convictions violated appellant’s constitutional guarantee against double jeopardy. In any event, it is to be noted that from a practical aspect the appellant, here, suffers no heavy loss since the sentences for the two handgun crimes are to run concurrently with the life sentence for murder.

Finally, we cannot agree that the trial judge erred in denying appellant’s motion for a judgment of acquittal. Appellant urges that Stevenson was an accomplice and that there was insufficient corroboration of his testimony to sustain the convictions. While it is perfectly apparent that Stevenson was an accomplice and his testimony needed corroboration, we think ample corroboration is found In the testimony of Evelyn Gee. She testified that both Stevenson and appellant discussed a “stick up” before leaving the apartment and when appellant returned, he announced that he had shot a man in the neck four times. Certainly, we cannot say on the record before us that the trial judge was clearly erroneous in denying the motion for judgment of acquittal. Maryland Rule 1086.

Judgments affirmed.

      . He cites Price v. State, 261 Md. 573 (1971); Robinson v. State, 249 Md. 200 (1968); Lynch v. State, 9 Md. App. 441 (1970); McChan v. State, 9 Md. App. 311 (1970); Parker v. State, 7 Md. App. 167 (1969).

        . See Cousins v. State, 277 Md. 383 (1976).


author: Moore, J.,

text:
    DOUG-DUN CORPORATION v. JAMES SIMMS
    [No. 644,
    September Term, 1975.]

      Decided May 5, 1976.

    The cause was argued before Morton, Davidson, Moore and Melvin, JJ.
    Submitted on brief by Joseph Charles Jacobs and David R. Cuttler for appellant.

      Russell C. Milbum for appellee.
   Moore, J.,

delivered the opinion of the Court.

The sole issue on this appeal is whether the Chancellor committed reversible error when he dismissed appellant’s bill of complaint for injunctive and other relief after a hearing on appellee’s motion ne recipiatur.

The record does not contain any transcript of the proceedings below. The appeal is before us on appellant’s bill of complaint with attached exhibits, the motion ne recipiatur and objection thereto and the court’s “Memorandum of Opinion.” We glean from the bill of complaint and exhibits that appellant was a tenant of appellee, operating a restaurant business in Severna Park, Anne Arundel County. Following extensive damage to the premises by fire, appellant and appellee entered into negotiations for the sale of the business, including a liquor license, and the leasing of the premises to a third party. These negotiations failed, however, and the landlord brought an action for summary ejectment in the District Court for Anne Arundel County and recovered a judgment on February 13, 1975 in the sum of $4500.00, representing rentals past due. No timely appeal from that judgment was made within the two-day period prescribed by § 8-401 (f), Annot. Code of Md., Real Prop. Art. (1975 Cum. Supp.).

On February 19, 1975, tenant-appellant’s counsel mailed to counsel for appellee an uncertified check in the amount of the judgment. This was, of course, an attempted exercise by the tenant-appellant of his right to redemption of the leased premises pursuant to § 8-401 (e) of the aforesaid Article which provides:

“— the tenant shall have the right to redemption of the leased premises by tendering in cash, certified check or money order to the landlord or his agent all past due rent and late fees, plus all court awarded costs and fees, at any time before actual execution of the eviction order.” (Emphasis added.)

Since the proffered payment did not comply with the above provisions the landlord-appellee exercised his rights of repossession of the premises by filing a petition for a Warrant of Restitution on February 17, 1975 and the •warrant was duly .filed and issued the same day.

Appellant’s bill of complaint alleged substantially the above facts and claimed that the repossession of the restaurant premises was unlawful. It sought an injunction against the landlord’s interference with the use and enjoyment of the premises as well as damages for trespass and for interference with and interruption of the restaurant business.

The motion -ne recipiatur interposed by the landlord-appellee under Maryland Rule 322 asserted as •grounds for the motion that the judgment in the District Court of Maryland was res judicata and also that there was an adequate remedy at law. On June 17, 1975, 'after a hearing on the motion ne recipiatur held in open court on June 13, 1975, it was ordered that the motion ne recipiatur “is sustained and the bill of complaint is dismissed without leave to amend, with costs of suit to be paid by complainant.” In the memorandum which accompanied the Order, the Chancellor wrote:

“The plaintiff, having failed to allege any facts which would bring himself within the purview of the statute, and having been evicted before complying with the payment provisions of the statute, it is difficult to see how this court could find a basis for equitable relief.
“It follows, therefore, that the defendant’s motion should be granted and the bill of complaint dismissed with costs to the defendant.”

It is apparent that the Chancellor disposed of the bill of complaint as if the case were before the court on a demurrer or a motion for summary judgment. Maryland Rule 322 entitled, Motion Ne Recipiatur or to Strike, is as follows:

“A motion that any pleading be not received either because it is filed too late or is not properly verified, or for any other reason, as well as any motion to strike out any preceding, motion for any reason, may be made either by a motion ne recipiatur or by a motion to strike, or both.”

In a footnote to a discussion of motions ne recipiatur the editor of Poe’s Pleading and Practice poses the question:

“Since under Rule 322 the motion may be filed because a pleading is too late, improperly verified ‘or for any other reason,’ may such a motion be filed to raise the legal sufficiency of a pleading as ‘any other reason’ ? ”

This question must be answered in the negative. The case of Millison v. Citizens National Bank of Southern Maryland, 256 Md. 431, 260 A. 2d 324 (1970) is dispositive of the issue. There the Court of Appeals ruled that it was reversible error for a trial court to grant a motion ne recipiatur where the-motion had been used for the same purpose as a demurrer, i.e., to test the sufficiency of the pleadings. The court relied upon McCormick v. St. Francis de Sales Church, 219 Md. 422, 149 A. 2d 768 (1959) where Judge Henderson stated:

“The fact that the Rule states that motions ne recipiatur and to strike may be used individually, in the alternative, or in combination ‘for any purpose,’ if intended to extend their former scope at all, 11 would not seem to reach so far as to permit them to serve the office of a demurrer, plea, or motion for summary judgment. . . .” 219 Md. at 428.

As the tenant-appellant’s “opposition” to the motion ne recipiatur in the instant case correctly maintained, the defense of res judicata may not properly be raised by a motion ne recipiatur. In an action at law, the better practice is to plead it specially. 2 Poe’s Pleading and Practice § 655 at 354 (6th ed. 1970); but it may be set up under the general issue. Brooke v. Gregg, 89 Md. 234, 43 A. 38 (1899). In equity, it will, of course, be asserted in the answer. At law and in equity, if appropriate to the allegations of the declaration or the bill of complaint, the defense may be asserted by demurrer (Md. Rules 345, 373, see, Moodhe v. Schenker, 176 Md. 259, 4 A. 2d 453 (1939)); and certainly it may be asserted at law or in equity by a motion for summary judgment under Maryland Rule 610.

Here, in granting the landlord-appellee’s motion ne recipiatur and dismissing the bill of complaint the court made a final disposition as if there had been a hearing on the merits or upon either a demurrer or motion for summary judgment. Upon the basis of the rulings of the Court of Appeals above cited, we have no alternative but to reverse and remand for further proceedings.

Decree reversed; case remanded for further proceedings not inconsistent with this opinion; costs to be paid by appellee.

      . We are told in the landlord’s brief that “at the time of the hearing, counsel for appellant went far beyond a strict technical pleading question as to the use by appellee of a motion ne recipiatur by arguing against the grounds set forth in the motion and delving deeply into the contents of his bill of complaint and the details surrounding the case in the District Court.” As previously stated, however, the extent of and the effect of the participation by appellant in the hearing below on the motion ne recipiatur is not before us, no transcript having been made.

      . Poe’s Pleading and Practice § 668, n.4 at 385 (6th ed. 1970).

      . As Judge Digges observed in Millison v. Citizens Bank of Southern Maryland, 256 Md. 431, 437-38, 260 A. 2d 324 (1970):
      “Before the adoption of Rule 322 a motion ne recipiatur was proper to prevent filing of any pleading that was not entitled to be filed, either because of time limitations or because it was deficient in form. If such a pleading had been filed, however, it would have been necessary to use a motion to strike in order to remove it from the record. . . . The Maryland rule was designed to abolish this technical distinction between the two motions and permit either one or both to be used.” (Citations omitted.)

      . Appellee’s counsel suggests in brief that the defense may be raised by preliminary objection, citing Frontier Van Lines, Inc. v. Maryland Bank and Trust Company, 274 Md. 621, 336 A. 2d 778 (1975) and informs us that he made an oral motion to change the motion ne recipiatur to a motion raising preliminary objection but the Chancellor did not rule on his motion. We observe that while the opinion in the Frontier case discloses that a motion raising preliminary objection was made by the appellee bank “grounded on res judicata” the appropriateness of the motion raising preliminary objection was not contested. Furthermore, we fail to discern that res judicata is one of the defenses enumerated under Maryland Rule 323 which lists specific defenses which may, at the option of the pleader, be made by motion.


author: Menchine, J.,

text:
    GEORGE P. REINHARDT v. ANNE ARUNDEL COUNTY et al.
    [No. 645,
    September Term, 1975.]

      Decided May 5, 1976.

      Edwin J. Wolf, with whom were Archibald Eccleston, III andEccleston, Seidler & Miller on the brief, for appellant.

      John M. Court, Assistant County Solicitor and Eugene M. Lemer, City Attorney, with whom.was Michael R. Roblyer, County Solicitor on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

George P. Reinhardt (appellant) filed an amended bill for declaratory decree in the Circuit Court for Anne Arundel' County against Anne Arundel County; the County Executive of Anne Arundel County and the Mayor and Aldermen of the City of Annapolis. The bill of complaint mounted a. scattergun attack upon Code Article 81, § 411C (1975 Repl. Voh) and- an Anne Arundel' County Ordinance codified as § 17-710 of the Anne Arundel County Code on constitutional and other grounds.

The Statute

Code Article 81, § 411C (1975 Repl. Vol.) is the tax enabling act upon which the ordinance depends for validity. At the time of trial in the Circuit Court for Anne Arundel County the statute read as follows:

“§ 4.11C. Additional taxing power in Anne Arundel County; disposition of revenues collected in City of Annapolis.
la) The County Council for Anne Arundel is hereby empowered and authorized, by ordinance, enacted from time to time pursuant to its legislative procedure, to levy, impose, and collect a sales or use tax upon fuels and utilities used by commercial and industrial businesses; residential, commercial and industrial telephone service; and space rentals. The tax rate on fuels, utilities and telephone services shall not be greater than 8%. The tax rates on, and classes of space rentals shall not be greater than those rates and classes in effect January 1, 1973, as specified by the ordinances of Anne Arundel County. The exemptions from the sales or use tax upon fuels and utilities used by commercial a.nd industrial businesses in effect January 1, 1973 as specified by the ordinances of Anne Arundel County shall not thereafter be revoked or reduced except by action of the General Assembly.
fb) Any revenues collected under the authority of this section within the boundaries of the City of Annapolis shall be allocated and distributed in equal amounts to the City of Annapolis and to Anne A rundel County.”

The Ordinance

Section 17-710* of the Anne Arundel County Code imposed a tax upon income derived from space rental for docking and storage of boats and reads as follows:

“Sec. 17-710. Tax on docking and storing boats.
(a) (1) There is hereby levied and imposed a tax of ten per cent (10%) of any charges or other consideration paid or received in exchange for the use of services or facilities (including, but not limited to, marina or boat slip facilities, space rentals, and docking and storage areas) for the purpose of docking or storing boats. If said services or facilities are offered in conjunction with other services or facilities, said tax shall apply only to the portion of consideration derived from space rental, docking or storage.
(2) Notwithstanding any provision to the contrary, said tax shall not be levied or imposed upon the following:
(i) Community-owned pier facilities.
(ii) Sales to the United States of America; provided, however, that nothing contained in this section shall be construed to exempt any instrumentality or agency of the United States of America which is subject to the taxing power of Anne Arundel County, Maryland, from taxation hereunder.
(iii) Sales to embassies and diplomatic services as approved by the State Department of the United States of America.
(b) For purposes of this section, the below listed terms shall be defined as hereinafter set forth:
(1) ‘Nonprofit, community-owned pier’ — Piers or recreational land which is held in common by every lot owner in a subdivision or community, excluding piers owned by an organization comprised of members not necessarily within a subdivision or community who each own an interest in the pier facility as a result of their membership in the organization.
(2) ‘Person’ — Any individual, partnership, firm, society, club, association, joint stock company, corporation, estate, receiver, trustee, assignee, referee or any other person acting in a fiduciary or representative capacity and any other group or combination of individuals acting as a unit.
(3) ‘Taxpayer’ — Any person required by this section to make returns or to pay the tax.
(4) ‘User’ — Any person making use of services and/or facilities for keeping, storing or docking boats.
(c) (1) Every person who offers services or facilities for the storage or docking of boats shall collect said tax from the user of said services or facilities, and report and remit the same as hereinafter provided. The person offering the use of said services or facilities shall have the same right against the user thereof for the collection of said tax as he has for the collection of charges for other services or facilities.
(2) Every person required to collect said tax shall file a return thereof and the remittance with the controller by the twenty-fifth (25th) day of the month next succeeding said collection; any person who fails to collect or remit said tax shall become personally liable therefor.
(3) Any taxpayer failing to file any return and/or pay the tax imposed by this section within the time limited therefor, shall be assessed the amount of tax due, plus interest at the rate of one-half of one per centum (V2 of 1%) per month and a penalty of ten per centum (10%) of the tax due.
(4) If any taxpayer has erroneously, illegally or unconstitutionally paid the tax imposed by this section, the controller shall refund said tax if, within three (3) years from the payment thereof, written application stating the grounds for such refund is filed with the controller.
(d) (1) Every owner, operator and user of such services and facilities shall keep complete and accurate records of all payments and receipts for such services and facilities together with a record of the tax collected thereon; and they shall keep all invoices and such other pertinent records and documents as are necessary to determine the amount of tax due. Such records and other documents shall be open at all times during business hours for inspection and examination by the controller or other duly authorized representatives, agents or employees of Anne Arundel County, Maryland.
(2) If any taxpayer fails to keep records from which the tax imposed by this section may be accurately computed, the controller may make use of a factor developed by surveying other taxpayers of the same type or otherwise compute the amount of tax due and there shall be a rebuttable presumption that said computation is correct.
(e) Any person who wilfully fails to collect the tax imposed by this section, who wilfully fails to pay over to the controller the tax imposed thereby, who wilfully fails to file a return required in connection with said tax, who wilfully makes any false statement or misleading omission in any such return or who wilfully fails to keep complete and proper records as required by law shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars ($1,000.00) or be imprisoned for not more than six (6) months, or both, in the discretion of the court, for each and every such offense.”

The Status of Appellant and the Proceedings Below

The appellant alleged that he was the owner of a motorboat documented under United States Statutes that was docked in a slip at the White Rocks Marina on Rock Creek, a navigable body in Anne Arundel County, Maryland. He alleged that he and all motor and sailboat owners who secure their boats at public or private facilities where a rental charge is collected have been required to pay the tax imposed upon such charges by § 17-710.

Appellant sought: (a) a declaration that the statute and ordinance are unconstitutional, illegal and void and (b) injunctive relief forbidding their enforcement.

The chancellor sustained demurrers by the appellees and declared the statute and ordinance to be valid and constitutional. We shall affirm for the reasons hereafter stated.

The Attack Under the Constitution of the United States

(a) Attack upon Art. 81, § 411C

The Fourteenth Amendment

Appellant contends that § 411C “is void for vagueness under the Fourteenth Amendment,” in that “[t]he term space rentals is not defined in the Act.”

Words used in statutes generally are not specially defined. In such cases the words used should be construed as having their ordinary and accepted meaning. Scoville Service, Inc. v. Comptroller, 269 Md. 390, 393-94, 306 A. 2d 534, 537 (1973).

In Webster’s Third New International Dictionary, Unabridged (1971) the words are thus defined:

“Space— 2a: a limited extension in one, two, or three dimensions: a part marked off or bounded in some way.”
“Rental — 2: an amount paid or collected as rent: income from rent: . . . return (as a sum of money) given or received as rent.”

In Richards Furniture Corp. v. Board of County Comm’rs of Anne Arundel County, 233 Md. 249, 264, 196 A. 2d 621, 629 (1964), it was said:

“ . .. [W]e do not find the statute vague or indefinite in a constitutional sense. It is unnecessary to elaborate upon this point in great detail. The Act is couched in plain and simple language, which may be easily understood by persons of ordinary intelligence. This is all that is required of a statute in order to prevent it from being vague and indefinite in a constitutional sense. United States v. Alford, 274 U. S. 264; Connally v. General Const. Co., 269 U. S. 385; and the Note ‘The Void-For-Vagueness Doctrine in the Supreme Court,’ 109 Penn. L. Rev. 67.”

When the previously defined words are considered in the combined form in which they were used in the statute, the legislative purpose is plain. We see no unconstitutional vagueness in the subject statute.

Article I

Appellant contends that § 411C violated certain sections of Article I of the United States Constitution:

Section 8, Clause 3 — “To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes.”
Section 9, Clause 6 — “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”
Section 10, Clause 3 — “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” (Emphasis supplied to show part of clause upon which appellant relies.)

Maryland Code Article 81, § 411C is simply a grant of power to Anne Arundel County. It impedes commerce in no respect. It imposes no duty or tax. The statute does not infringe upon these provisions of the Constitution. With respect to Section 9, Clause 6, it should be noted, as the court below pointed out, the “provision operates only as a limitation of the powers of Congress, and in no respect affects the States in the regulation of their domestic affairs. Munn v. Illinois, 94 U.S. 113, 135.”

(b) Attack upon Anne Arundel Code § 17-710

The Fourteenth Amendment

Appellant contends that § 17-710 denies him equal protection of law in that the ordinance “by its express terms, exempts non-profit and/or community owned pier facilities. This result clearly discriminates against both commercial pier facilities, and non-residents of Anne Arundel County.”

In Allied American Co. v. Comm’r of Motor Vehicles, 219 Md. 607, 150 A. 2d 421 (1959), it was said at 623 [431]:

“The constitutional need for equal protection does not shackle the legislature. It has the widest discretion in classifying those who are to be regulated and taxed. Only if the grouping is without any reasonable basis, and so entirely arbitrary, is it forbidden. Abstract symmetry or mathematical nicety are not requisites. The selection need not depend on scientific or marked differences in things or persons or their relations. If any state of facts reasonably can be conceived that would sustain a classification, the existence of that state of facts as a basis for the passage of the law must be assumed. The burden is on him who assails a classification to show chat it does not rest on any reasonable basis.”

The Court added at 624 [432]:

“If the classification made by the Legislature is otherwise justified, there can be no sound complaint that the legislative purpose might be better or more fully achieved by other or more expansive and inclusive classification.”

In State Board of Tax Commissioners of Indiana v. Jackson, 283 U. S. 527, 51 S. Ct. 540, 75 L. Ed. 1248 (1931), it was said at 537 [543] [1255]:

“ * * The power of taxation is fundamental to the very existence of the government of the States. The restriction that it shall not be so exercised as to deny to any the equal protection of the laws does not compel the adoption of an iron rule of equal taxation, nor prevent variety or differences in taxation, or discretion in the selection of subjects, or the classification for taxation of properties, businesses, trades, callings, or occupations * * *.’ ”

In Fair Lanes, Inc. v. Comptroller, 265 Md. 361, 289 A. 2d 595 (1972), it was said at 367 [599]:

“The trend in the opinions of the Supreme Court of the United States since the 1931 opinion in Jackson has been toward sustaining the power of the States to make valid classifications for purposes of taxation against attacks based upon the Fourteenth Amendment prohibition of a denial of equal protection of the laws.” (Citations omitted.)

See also: National Can Corp. v. State Tax Comm’r of Md., 220 Md. 418, 153 A. 2d 287 (1959), appeal dismissed 361 U. S. 534, 80 S. Ct. 586, 4 L.Ed.2d 538 (1960); Brown v. State, 177 Md. 321, 330, 9 A. 2d 209, 213 (1939).

The classification made by the County Council in enacting § 17-710 was reasonable.

Article I

Although appellant had alleged in his bill of complaint that § 17-710 was in violation of Section 8, Clause 3; Section 9, Clause 6; and Section 10, Clause 3, supra, his attack in this Court under Article I is limited to a claim of unconstitutionality under Section 10, Clause 3, supra.

Section 10, Clause 3 (Duty Upon Tonnage)

Essentially, the appellant relies upon two Supreme Court cases: Cannon v. New Orleans, 87 U. S. 577, 22 L. Ed. 417 (1874); and Clyde Mallory Lines v. Alabama, 296 U. S. 261, 56 S. Ct. 194, 80 L. Ed. 215 (1935). Both may be distinguished by limitations expressed in the opinions themselves.

In Cannon, supra, wher ein a tax was held unconstitutional as a tonnage tax it had been said at 581 [419]:

“Whatever more general or more limited view may be entertained of the true meaning of this clause, it is perfectly clear that a duty or tax or burden imposed under the authority of the State, which is, by the law imposing it, to be measured by the capacity of the vessel, and is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, is within the prohibition.”

This language must be considered in the light of the facts to which it was applied. The Supreme Court had preceded the quoted words by saying at 580-81 [419]:

“It is in proof that of the twenty miles and more of the levee and banks of the Mississippi within the City, not more than one tenth has any wharf, and that vessels land at various places where no such accommodations exist. The language of the ordinance covers landing anywhere within the city limits. The tax is, therefore, collectible for vessels which land at any point on the banks of the river, without regard to the existence of the wharves. The tax is also the same for a vessel which is moored in any part of the Port of New Orleans, whether she ties up to a wharf or not, or is located at the shore or in the middle of the river. A tax which is, by its terms, due from all vessels arriving and stopping in a port, without regard to the place where they may stop, whether it be in the channel of the stream, or out in the bay, or landed at a natural river bank, cannot be treated as a compensation for the use of a wharf This view is additionally enforced if, as stated by counsel for the plaintiff, in their argument, the Supreme Court of the State has decided that under the Act of 1843, of the Louisiana Legislature, no wharfage tax or duty can be levied or collected by the City.
“We are of opinion that, upon the face of the ordinance itself, as applied to the recognized condition of the river and its banks within the City, the dues here claimed cannot be supported as a compensation for the use of the City’s wharves, but that it is a tax upon every vessel which stops, either by landing or mooring, in the waters of the Mississippi River within the City of New Orleans, for the privilege of so landing or mooring.
“In this view of the subject, as the assessment of the tax is measured by the tonnage of the vessel, it falls directly within the prohibition of the Constitution, namely: ‘That no State shall, without the consent of Congress, lay any duty of tonnage.’ ” (Emphasis added.)

In Mallory, supra, it had been said at 265-66 [196] [218]:

“* * * [T]he prohibition against tonnage duties has been deemed to embrace all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port.”

The Supreme Court went on to explain, however, at the same page:

“But it does not extend to charges made by state authority, even though graduated according to tonnage, for services rendered to and enjoyed by the vessel, such as pilotage, Cooley v. Board of Wardens, supra, or wharfage, Keokuk Northern Line Packet Co. v. Keokuk, supra; Northwestern Union Packet Co. v. St. Louis, 100 U. S. 423, 25 L. Ed. 688; Cincinnati, P. B. S. & P. Packet Co. v. Catlettsburg, 105 U. S. 559, 26 L. Ed. 1169; Parkersburg & O. River Transportation Co. v. Parkersburg, 107 U. S. 691, 2 S. Ct. 732, 27 L. Ed. 584; Ouachita & M. River Packet Co. v. Aiken, 121 U. S. 444, 7 S. Ct. 907, 30 L. Ed. 976, or charges for the use of locks on a navigable river, Huse v. Glover, supra, or fees for medical inspection, Morgan’s Louisiana & T. R. & S. S. Co. v. Board of Health, 118 U. S. 455, 6 S. Ct. 1114, 30 L. Ed. 237.

The Supreme Court in Keokuk N. L. Packet Co. v. Keokuk, 95 U. S. 80, 24 L. Ed. 377 (1877), thus explained the nature of the judicial inquiry to determine whether an ordinance is violative of this section, saying at 84-85 [380]:

“* * * To determine whether the charge prescribed by the ordinance in question is a duty of tonnage, within the meaning of the Constitution, it is necessary to observe carefully its object and essence. If the charge is clearly a duty, a tax or burden, which in its essence is a contribution claimed for the privilege of entering the port of Keokuk, or remaining in it, or departing from it, imposed as it is, by authority of the State and measured by the capacity of the vessel, it is, doubtless, embraced by the constitutional prohibition of such a duty. But a charge for services rendered or for conveniences provided is in no sense a tax or a duty. It is not a hindrance or impediment to free navigation. The prohibition to the State against the imposition of a duty of tonnage was designed to guard against local hindrances to trade and carriage by vessels, not to relieve them from liability to claims for assistance rendered and facilities furnished for trade and commerce.”

After pointing out, at 87 [381] that:

“What was intended by the provisions of the second clause of the tenth section of the first article was to protect the freedom of commerce, and nothing more. The prohibition of a duty of tonnage should, therefore, be construed so as to carry out that intent.”

the Supreme Court declared at 88 [381]:

“In Cooley v. The Board of Port-Wardens, 12 How. 299, this court recognized a clear distinction between wharfage and duties on imports or exports or duties on tonnage. Referring to the 2d [sic] paragraph of section 10, art. L, of the Constitution, Curtis, J., speaking for the court, said: ‘This provision of the Constitution was intended to operate upon subjects actually existing and well understood when the Constitution was formed. Imposts, and duties on imports, exports and tonnage, were then known to the commerce of the civilized world to be as distinct from fees and charges for pilotage, and from the penalties by which commercial States enforced their laws, as they were from charges of wharfage or towage, or any other local port charges for services rendered to vessels or cargoes, and to declare that such pilot fees or penalties are embraced within the words imposts, or duties on imports or exports, or tonnage, would be to confound things essentially different, and which must have been known to be actually different by those who used this language. * * * It is the thing and not the name that is to be considered.’
“For these reasons, we hold that the ordinance cannot be considered as imposing a duty of tonnage, and what we have said is sufficient to show that most of the other objections of the plaintiffs in error to its validity have no substantial foundation. It is in no sense a regulation of commerce between the States, nor does it impose duties upon vessels bound to or from one State to another, nor compel entry or clearance in the port of Keokuk; nor is it contrary to the compact contained in the ordinance of 1787, since it levies no tax for the navigation of the river; nor is it in conflict with the act of Congress respecting the enrollment and license of vessels for the coasting trade. All these objections rest on the mistaken assumption that port charges, and especially wharfage, are taxes, duties and restraints of commerce.”

In the subject case, the boat owner is not compelled to subject himself to the tax. He continues to have access to the navigable waters of the State and to the ports of the City of Annapolis and Anne Arundel County.

The tax imposed by § 17-710 is not a tax upon the “privilege of entering, trading in, or lying in a port.” Clyde Mallory Lines v. Alabama, supra. The ordinance applied a tax in the form of a percentage of rental fees collected by commercial dock owners from boat owners who choose to use their facilities. The ordinance imposes no requirement on the boat owner to pay a tax unless he uses a commercial dock facility. In sum, the subject ordinance does not impose restrictions upon movement upon navigable waters; or impair the entry of vessels into ports or restrain or impede interstate commerce. Rather, it is imposed only upon boat owners who use physical facilities within Anne Arundel County that have been provided for their service and convenience. Union Barge Line Corp. v. Marcum, 360 S.W.2d 130, 132 (C. of A.Ky. 1962).

We find no infringement of Article I of the Constitution.

The Attack Under the Maryland Constitution Article 15 Declaration of Rights

Appellant, relying upon County Comm’rs of Anne Arundel County v. English, 182 Md. 514, 35 A. 2d 135 (1943), contends that the tax imposed by § 411C and § 17-710, both supra, upon income derived from “space rentals” is a tax on property and as such is constitutionally infirm as lacking the uniformity required by Article 15.

We do not see § 411C as imposing a property tax. Neither is it discriminatory or lacking in uniform application. Villa Nova v. Comptroller, 256 Md. 381, 260 A. 2d 307 (1970).

Article 23 Declaration of Rights

The purpose subserved by Article 23 has been equated with the due process provisions of the Fourteenth Amendment. Oursler v. Tawes, 178 Md. 471, 13 A. 2d 763 (1940).

Appellant’s contention that § 411C offends against this Article is rejected for the reasons hereinbefore given in the discussion of the Fourteenth Amendment, supra.

Article III, Sections 29 and 33

We see no titling defect under Section 29.

Section 33 is not a special law. See: Potomac Sand and Gravel Co. v. Governor, 266 Md. 358, 293 A. 2d 241 (1972).

Article XI-A

Appellant mounts his attack against § 4-11C under Sections 2 and 4 of this Article.

The Sections read as follows:

2. “The General Assembly at its first session after the adoption of this amendment shall by public general law provide a grant of express powers for such County or Counties as may thereafter form a charter under the provisions of this Article. Such express powers granted to the Counties and the powers heretofore granted to the City of Baltimore, as set forth in Article 4, Section 6, Public Local Laws of Maryland, shall not be enlarged or extended by any charter formed under the provisions of this Article, but such powers may be extended, modified, amended or repealed by the General Assembly.”
4. “From and after the adoption of a charter under the provisions of this Article by the City of Baltimore or any County of this State, no public local law shall be enacted by the General Assembly for said City or County on any subject covered by the express powers granted as above provided. Any law so drawn as to apply to two or more of the geographical subdivisions of this State shall not be deemed a Local Law, within the meaning of this Act. The term ‘geographical sub-division’ herein used shall be taken to mean the City of Baltimore or any of the Counties of this State. (1914, ch. 416, ratified Nov. 2,1915.)”

He argues that § 411C is invalid because it “attempts to extend, modify or amend the expressed powers of Article 25A, Section 5, and that such extension, modification or amendment cannot be accomplished by a public local law, but rather may only be accomplished by a public general law.”

Section 411C had been initiated by Ch. 302 of the Acts of 1971. We do not see passage of that chapter as an act amending the Express Powers Act (Art. 25A). The Legislature, acting under Art. XI-A, § 2, supra, in enacting the Express Powers Act had granted a limited taxing power to Baltimore City and to those Counties of the State who elected to adopt a charter form of government. It did not surrender its right to enact local taxation legislation in areas not included within the Express Powers Act’s grant of taxing power.

In Baltimore v. State, 15 Md. 376 (1860), it was said at 467:

“. . . The power to levy taxes is a sovereign power, and unless committed to some portion of the people, may always be exercised by the Legislature. It is not to be considered as parted with by mere construction, and we have not been referred to any portion of the Constitution which divests it.”

The Legislature in numerous instances has recognized its continuing sovereign power to enact local laws pertaining to taxation in charter counties as to matters not encompassed within the Express Powers Act.

Article XI-E

Appellant suggests that § 411C violated Article XI-E of the Maryland Constitution, in that subsection (b) “allow[s] the City of Annapolis to impose a tax upon space rentals in the amount of one-half (V2) of the tax imposed by Anne Arundel County.. .. Appellant contends that such legislative purpose cannot be accomplished by a ‘public local law’ and that to do so violates the clear meaning of Article XI-E of the Maryland Constitution.” This issue was neither raised in his amended bill of complaint nor decided by the court below. We decline to pass upon it. Rule 1085.

Additional Contention Natural Resources

Appellant contends that the statute and ordinance impose a tax on water owned by the State in violation of the Maryland Code Natural Resources Article, and Code Article 81, § 9. We do not see it that way. Section 17-710 imposes the tax on “consideration paid or received in exchange for the use of services or facilities (including, but not limited to, marina or boat slip facilities, space rentals, and docking and storage areas) for the purpose of docking or storing boats.”

We see no conflict in the several enactments.

Declaratory decree affirmed.

Appellant to pay the costs.

      . Under the terms of Ch. 853, § 2 of the Acts of 1973, § 411C would have expired on July 1, 1975. Ch. 616 of the Acts of 1975, however, repealed and reenacted the section as follows:
      “(a) The County Council for Anne Arundel may by ordinance, enacted from time to time pursuant to its legislative procedure, levy, impose, and collect a sales or use tax upon fuels and utilities used by commercial and industrial businesses; residential, commercial and industrial telephone service; and space rentals.
      (b) Any revenues collected under the authority of this section within the boundaries of the City of Annapolis shall be allocated and .distributed in equal amounts to the City of Annapolis and to Anne Arundel County.”
      Under Ch. 616, § 2 the power to tax was extended to July 1,1977.

      . § 17-710 was initiated as Council Bill No. 35-71; was twice reenacted in substantially the same form by Bill No. 49-73 and Bill No. 34-75.

      . Demurrers to the original bill of complaint seeking the same relief previously had been sustained and an appeal taken to the Court of Appeals of Maryland. That appeal was dismissed as premature and the case remanded pursuant to Maryland Rule 871 to permit appellant “to amend his Bill of Complaint to set forth with clarity and specificity, those averments pertaining to the constitutionality of [the Statute and Ordinance].” Reinhardt v. Anne Arundel County, et al, No. 121, September Term, 1974, filed January 29,1974 (unreported).

      . Article 15
      “That the levying of taxes by the poll is grievous and oppressive and ought to be prohibited; that paupers ought not to be assessed for the support of the government; that the General Assembly shall, by uniform rules, provide for the separate assessment, classification and sub-classification of land, improvements on land and personal property, as it may deem proper; and all taxes thereafter provided to be levied by the State for the support of the general State Government, and tíy the Counties and by the City of Baltimore for their respective purposes, shall be uniform within each class or sub-class of land, improvements on land and personal property which the respective taxing powers may havp directed to be subjected to the tax levy; yet fines, duties or taxes may properly and justly be imposed, or laid with a political view for the good government and benefit of the community.”

      . Article 23
      “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”

      . Section 29
      “The style of all Laws of this State shall be, ‘Be it enacted by the General Assembly of Maryland:’ and all Laws shall be passed by original bill; and every Law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title; and no Law. nor section of Law, shall be revived, or amended by reference to its title, or section only; nor shall any Law be construed by reason of its title, to grant powers, or confer rights which are not expressly contained in the body of the Act; and it shall be the duty of the General Assembly, in amending any article, or section of the Code of Laws of this State, to enact the same, as the said article, or section would read when amended. And whenever the General Assembly shall enact any Public General Law, not amendatory of any section, or article in the said Code, it shall be the duty of the General Assembly to enact the same, in articles and sections, in the same manner, as the Code is arranged, and to provide for the publication of all additions and alterations, which may be made to the said Code.”

      . Section 33
      “The General Assembly shall not pass local, or special Laws, in any of the following enumerated cases, viz.: For extending the time for the collection of taxes; granting divorces; changing the name of any person; providing for- the sale of real estate, belonging to minors, or other persons laboring under legal disabilities, by executors, administrators, guardians or trustees; giving effect to informal, or invalid deeds or wills; refunding money paid into the State Treasury, or releasing persons from their debts, or obligations to the State, unless recommended by the Governor, or officers of the Treasury Department. And the General Assembly shall pass no special Law, for any case, for which provision has been made, by an existing General Law. The General Assembly, at its first Session after the adoption of this Constitution, shall pass General Laws, providing for the cases enumerated in this section, which are not already adequately provided for, and for all other cases, where a General Law can be made applicable.”

      . See: e.g., 1975 Ch. 118 (Prince George’s County)
      Ch. 896 (Prince George’s County)
      1974 Ch. 383 (Prince George’s County)
      Ch. 890 (Anne Arundel County)
      1973 Ch. 853 (Anne Arundel County)
      Ch. 867 (Baltimore County)
      Ch. 871 (Montgomery County)
      1971 Ch. 105 (Prince George’s County)
      Ch. 331 (Montgomery County)
      Ch. 576 (Montgomery County)
      Ch. 738 (Prince George’s County)

      . But see: Carroll County v. Westminster, 123 Md. 198, 203-04, 91 A. 412, 414-15 (1914).