author: Gilbert, J.,

text:
    JOHN A. FRANCISCUS v. ROSEMARY FRANCISCUS
    [No. 760,
    September Term, 1975.]

      Decided April 1, 1976.

    The cause was argued before Morton, Gilbert and Moore, JJ.
    Submitted on brief by Joseph I. Huesman and Lerch & Huesman for appellant.

      James D. Johnson with whom was Sheldon H. Bra,Herman on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The limited issue presented by this appeal is whether Judge Albert L. Sklar, sitting in the Circuit Court of Baltimore City, abused his discretion when he denied the appellant’s “Motion to Set Aside Decree Pro Confesso.” For the reasons stated infra, we hold that Judge Sklar did not abuse his discretion.

The record reveals that the appellee, Rosemary Franciscus, filed in the Circuit Court of Baltimore City, on July 3, 1974, a petition for custody of her and appellant’s two minor children. The appellant, John A. Franciscus, a resident of Puerto Rico, was served with process by registered mail, “deliver to addressee only,” in accordance with Md. Rule 107 a 2. Appellant, in an affidavit, however, denied receipt of process, but averred that he received “ . . . other papers . . .” from appellee’s then counsel. On April 7, 1975, appellee’s former attorney filed an affidavit of service, as required by Md. Rule 107 a 2, to which he attached a return receipt upon which appears the signature of the appellant. Printed in a conspicuous manner under the signature is the word, “NUTS!”. The decree pro confesso was entered on April 30, 1975, and notification of the entry of that decree was mailed to appellant. Thereafter, appellant, through his attorneys, on May 27, 1975, by way of a paper writing titled, “Motion to Set Aside Decree Pro Confesso,” and stating that appellant was “. . . appearing specially and solely for the purpose of this Motion and not submitting himself to the jurisdiction of... [the] Court...,” moved to strike the decree pro confesso. The “Motion” alleged that appellant had never received a copy of the petition for custody, although he did receive “other papers.” Further, appellant averred that he had "... a meritorious defense to the Petition for Custody in that . . . [the] Court has no jurisdiction over the persons or the subject matter. . . .”

The Court of Appeals, speaking through Chief Judge Hammond, in Eastham v. Young, 250 Md. 516, 523, 243 A. 2d 559, 563-64 (1968), said that if the entry of an appearance was in reality a general appearance, it would have the result of binding the party to the subsequent proceedings in the case. See also Keen v. Keen, 191 Md. 31, 41, 60 A. 2d 200, 205 (1948). The appellant’s appearance in the instant case, as manifest by the content of the motion to set aside the decree pro confesso, removes all doubt but that appellant was directing his attack upon the service of process as well as the jurisdiction of the court over both the subject matter and the parties.

When the case at bar was heard before Judge Sklar, he had before him the argument of counsel and what can be characterized as a battle of affidavits. The judge, after considering the argument with respect to service of process and jurisdiction, resolved both questions in favor of the appellee, opining that the appellant had “ . . . slept on his rights....”

The chancellor pointed out that appellant admitted that the signature on the return receipt was that of appellant. Judge Sklar further noted that the word, “NUTS!”, was printed under appellant’s signature. The hearing judge was faced with two divergent claims: (1) the affidavit of appellee’s former counsel asserting that he had mailed a copy of the petition for custody to the appellant together with a copy of the summons, on July 3, 1974, and the attached signed return receipt and (2) the appellant’s affidavit denying that he, in fact, received a copy of the petition for custody or the summons, which affidavit was executed June 6,1975.

The hearing judge drew a rational inference that appellant was motivated to pen the word, “NUTS!”, upon the return receipt, not because he received “other papers” but, rather, because “ ... he received something he didn’t like, and it is more probable it was the petition which was filed in this case.” We are unable to say that Judge Sklar’s finding on the facts was clearly erroneous, nor that he abused his discretion in refusing to strike the decree pro confesso.

Appellant, in his brief filed in this Court, steadfastly maintains that he has a “meritorious defense” to the appellee’s petition. He cites Md. Rule 675 a 3 which permits the trial court to set aside a decree pro confesso when “ . . . an answer or the interposing of other defense” is filed. The rule is, however, permissive, not mandatory. Furthermore, Miller v. Talbott, 239 Md. 382, 211 A. 2d 741 (1965), and Richardson v. Richardson, 217 Md. 316, 142 A. 2d 550 (1958), relied upon by appellant, are inapposite. Both cases were concerned with the interposing of a meritorious defense. We interpret the term “meritorious defense” to be one that goes to the core, heart, merits, essence, or substance of the case. Dilatory, procedural, jurisdictional, or other technical objections are not included within its ambit. Cooper v. Freeman Lumber Co., 61 Ark. 36, 41-42, 31 S. W. 981, 982-83 (1895); Marr v. Superior Court, 30 Cal. App. 2d 275, 86 P. 2d 141 (1939). The Supreme Court, in General Inv. Co. v. New York Cent. R.R., 271 U. S. 228, 46 S. Ct. 496, 70 L. Ed. 920 (1926), ruled that “jurisdiction” is the authority of a court to entertain the litigation, weigh the merits, and render a binding decision on the merits. “Merits” was deemed to mean the various factors or elements that constitute the right to seek redress or relief. 271 U. S. at 230.

The allegation by appellant that he has a “meritorious defense ... in that . . . [the] Court. . . [had] no jurisdiction over the persons or the subject matter . . .” is based on a misinterpretation of the term “meritorious defense.” If the defense were “meritorious,” it could not be jurisdictional, although a challenge to the jurisdiction, which may be raised at any time, is proper.

We shall now determine whether the jurisdictional challenge has merit. It is apparent on the face of the pleading that the appellee was domiciled in Baltimore, Maryland, at the time of the filing of the petition for custody. It is equally apparent that the appellee, in the divorce proceeding between the parties to this case, was awarded custody of the two minors by the Superior Court of Puerto Rico, District of Caguas, on June 3, 1970. Until July 1, 1968, Maryland strictly followed the domiciliary rule, i.e., in a situation where parents were divorced, the child’s domicile was held to be that of the parent to whom legal custody has been awarded. Taylor v. Taylor, 246 Md. 616, 229 A. 2d 131 (1967); Berlin v. Berlin, 239 Md. 52, 210 A. 2d 380 (1965); In re Karol, 11 Md. App. 400, 274 A. 2d 407 (1971).

A 1968 Code amendment, Md. Ann. Code art. 16, § 66 (f), confers upon equity courts the authority to determine custody of children as well as visitation rights with respect to the children even though the children are not in Maryland, provided, however, certain prerequisites are satisfied.

Md. Ann. Code art. 16, § 66 (f), provides:

“In all cases where one party to a marriage, existing or pre-existing, removes or has removed a child or children of the marriage from this State, the courts of equity of this State shall exercise jurisdiction to determine custody or visitation rights of the child or children so removed, if:
(1) Maryland was the matrimonial domicile of the parties or the domicile where the marriage contract was last performed; and
(2) Such court shall have obtained personal jurisdiction of the party so removing the child or children; and
(3) One of the parties to said marriage shall have been at the time of said removal, a resident of the State of Maryland and shall continue to reside therein.
Nothing in this subsection shall be construed in any way to limit or modify other methods by which courts of equity obtain jurisdiction to determine the custody or visitation rights of children.”

The statutory modification amplifying jurisdiction has no application to the case now before us because this case’s facts do not meet the statute’s conjunctive prerequisites. Furthermore, the statute makes clear, by its language, that its purpose is not to limit or restrict courts of equity from employing the “other methods” of obtaining jurisdiction to determine custody or visitation rights. When, as here, Md. Ann. Code art. 16, § 66 (f), is inoperative because the factual requirements necessary for the application of the statute are absent, the domiciliary rule applies.

Although the children of the parties were actually attending school in England at the time the petition for custody was filed, their legal custodian, the appellee, was domiciled in Maryland. Therefore, under the rationale of Taylor v. Taylor, supra, the minor children of the parties were domiciled in Baltimore, Maryland, and, thus, subject to the jurisdiction of the Circuit Court of Baltimore City.

The appellant, as we have seen, was served with process pursuant to Md. Rule 107. Proper service having been found as a fact by Judge Sklar to have taken place, jurisdiction over the appellant was obtained, so that all parties affected by the suit were properly before the court.

The only remaining issue is whether the court had jurisdiction over the subject matter. So as not to prolong this opinion, we merely note that an equity court has jurisdiction of custody matters. Md. Ann. Code, Courts and Judicial Proceedings Art. § 3-602. The statute is a legislative declaration of a jurisdiction long exercised by courts of equity. Coleman v. Coleman, 228 Md. 610, 180 A. 2d 875 (1962). See also Taylor v. Taylor, supra; Smith v. Smith, 216 Md. 141, 140 A. 2d 58 (1958); Burns v. Bines, 189 Md. 157, 55 A. 2d 487 (1947); Stirn v. Stirn, 183 Md. 59, 36 A. 2d 695 (1944); Barnard v. Godfrey, 157 Md. 264, 145 A. 614 (1929); In re Karol, supra.

We hold that the appellant was properly served with process, and wilfully did not respond thereto within the time prescribed. The parties to the case and the minor children whose custody and visitation rights are to be determined, are subject to the jurisdiction of the Circuit Court of Baltimore City. The circuit court has jurisdiction over the subject matter, and Judge Sklar did not abuse his discretion in refusing to strike the decree pro confesso.

Order affirmed.

Costs to be paid by appellant.

      . We note that at the time of filing one of the two children was age 16. Md. Ann. Code art. 16, § 66 (g) provides that such a child may petition the court for a change of custody. The child need not be joined by a guardian ad litem or next friend but may file the petition “ ... on his own.”

      . See Md. Ann. Code, Courts and Judicial Proceedings Art. § 3-1004, which was added to the Code by Laws 1975, ch. 265.

      . The appellant’s affidavit in support of his motion recites that the “other papers” related “ ... to matters in dispute between he [sic] and his former wife. . . .” No attempt was made in the affidavit to assert with any specificity the nature of the “other papers.”

      . But see Md. Rule 124 c which abolished special appearances, although the entry of “[a]n appearance does not waive the right to make a special or preliminary objection.” Md. Rule 124 b.

      . See Md. Rule 323 c. See also Resh v. Resh, 271 Md. 133, 314 A. 2d 109 (1974); Gill v. Physicians and Surgeons Bldg., Inc., 153 Md. 394, 138 A. 674 (1927); Tartar v. Gibbs, 24 Md. 323 (1865); Carroll v. State, 19 Md. App. 179, 310 A. 2d 161 (1973) (citing numerous cases).

      . The children were enrolled in Maryland schools and have attended such schools as of September, 1974.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES DANIEL BECKETTE v. STATE OF MARYLAND
    [Nos. 798 and 799,
    September Term, 1975.]

      Decided April 1, 1976.

      The causes were argued before Thompson, Gilbert and Mason, JJ.

      Harold Buchman fof appellant.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County and Thomas J. O’Connell, Assistant State’s Attorney for Baltimore County on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

On June 3, 1975, James Daniel Beckette, appellant, was convicted, on indictment number 49907, by a jury, in the Circuit Court for Baltimore County, of daytime housebreaking, assault and the use of a handgun in the commission of a felony. Appellant was also convicted, on June 13, 1975, on indictments number 50711 and number 51183, by a jury presided over by Judge Marvin J. Land, in the Circuit Court for Baltimore County, of rape, use of a handgun in the commission of a felony, daytime housebreaking, assault with intent to rape, and assault. The terms imposed upon appellant as a result of both trials aggregate forty years.

Appellant has appealed all judgments of the circuit court. For purposes of clarification in discussing the facts and applicable law, we shall assign to the appeal from the judgment entered on the June 3, 1975, conviction the indictment number 49907, and indictment numbers 50711 and 51183 shall refer to the appeal from the judgments entered in the court presided over by Judge Land. We shall treat each appeal separately within the confines of this opinion.

Indictment No. 4.9907

The evidence discloses that an intruder unlawfully gained entrance into the home of the prosecutrix and her husband while the prosecutrix’s husband was away at work. The intruder climbed the stairway to a second floor bedroom where the prosecutrix was reclining on her bed. The room was well lit from sunlight. The prosecutrix pulled her knees to her chest in an effort to ward off the intruder who was armed with a revolver. The intruder climbed onto the bed, stifled the prosecutrix’s screams and pressed himself against her upraised legs. The woman told the intruder that if he would leave she would not report the matter to the police, and the intruder left the house. The police were called, and a subsequent investigation brought about the appellant’s apprehension. The prosecutrix made a positive judicial identification of the appellant as the intruder. Appellant denied all knowledge of the offense and interposed a defense of alibi. Superimposed upon the alibi was the testimony of several character witnesses who testified to the appellant’s good reputation for truth and veracity. One of the character witnesses was the appellant’s former attorney in this case. The scope of the State’s cross-examination of the witness, over objection, has led to the appellant’s first contention in this appeal.

I

“The court erred in permitting the State to impeach the testimony of appellant’s former attorney concerning appellant’s character by introducing a letter written by the attorney to the appellant in the course of his employment as appellant’s counsel in an entirely unrelated civil matter.”

We do not agree that the letter was written by the attorney “ .. . in the course of his employment ... in an entirely unrelated civil matter.”

The lawyer, who had represented appellant in this case prior to the time that the present counsel entered his appearance, struck his appearance in accordance with Md. Rule 125. Attached to the motion to strike the appearance of counsel was a carbon copy of a letter from then counsel to the appellant. The letter read, in pertinent part:

“Re: Legal representation; criminal and domestic matters
Dear Mr. Beckette:
In accordance with the Maryland Rules of Procedure, Rule 525, l] you are herewith advised of my intention to strike my appearance from any and all of your cases in which I have been your attorney. Said Motion to Strike Appearance will be filed with the Circuit Court of [sic] Baltimore, [sic] County on or after Monday, February 3, 1975.
I regret that this action has become necessary, Jim, but it has. You have repeatedly sought my advice and counsel in these matters, and then acted in total disregard of the advice given. I find that I have no control over you or the case(s) and their development or resolution. Specifically, you have consistently withheld information from me, material to a criminal case defense. You have given me false information on occasion. . . .” [] (Emphasis supplied).

Nevertheless, even if we assume that the letter was written on an “unrelated civil matter,” that fact does not affect our disposition. An attorney’s obligation to respect the confidences of his client, with rare exceptions not here applicable, continues after the termination of the lawyer’s services and even survives the death of the attorney or the client. Md. Rule 1230, Appendix F, “Code of Professional Responsibility” § EC4-6; Moore v. Bray, 10 Pa. 519 (1849); 3 Wharton’s Criminal Evidence § 560 (13th ed. C. Torcia 1973). Of course, the privileged communication status may be waived only by the client. The waiver may be either expressed or implied. McCormick’s Handbook of the Law of Evidence § 93 (2d ed. E. Cleary 1972); 3 Wharton’s Criminal Evidence § 561 (13th ed. C. Torcia 1973); 8 J. Wigmore, Evidence § 2327 (McNaughton rev. 1961).

Patently, the question in the case at bar is: Did the calling of the former lawyer by appellant as a character witness, posing to him an interrogatory which sought the attorney’s personal opinion of appellant’s “ . . . reputation for truthfulness and veracity,” and receiving a favorable answer thereto, open the door for the use of the attorney’s letter as the basis of impeachment? We think it did. We explain why we so believe.

There can be no question but that appellant’s former attorney was the one who made a matter of public record the accusation that appellant had furnished the attorney with “false information.” The filing in the court of a copy of the letter containing the accusation placed the information within the purview of the public. Court files, unless sealed by order of the court, are properly viewable by any person. Md. Ann. Code, Courts and Judicial Proceedings Article § 2-203; Perlman v. United States, 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950 (1918); Ex parte Uppercu, 239 U. S. 435, 36 S. Ct. 140, 60 L. Ed. 368 (1915). See also Annot., 175 A.L.R. 1260, § 3 (1948) (Restricting access to judicial records); 66 Am. Jur. 2d Records and Recording Laws § 15 (1973); 20 Am. Jur. 2d Courts § 62 (1965). In this case, however, the disclosure that appellant had on occasion furnished his erstwhile counsel with false information was also communicated by the then attorney to Judge Raine, to the appellant’s employer, and to the Pre-trial Release Division of the circuit court. The communication took the form of a carbon copy of the attorney’s letter to appellant being directed to each of the above named. We are compelled to deduce that appellant was fully aware, or should have been, that the letter’s content was known to the prosecution. Notwithstanding that knowledge, appellant elected to call his former lawyer as a character witness. The transcript disclosed the following:

“Direct Examination.
By Mr. Buchman:
Q. How long have you known him?
A. I have known Mr. Beckette since I was about twenty-one, which would be about fifteen years.
Q. Did you at one time earlier represent him in these proceedings?
A. Yes, and other proceedings.
Q. As a result of your acquaintance with Mr. Beckette, have you been able to form any opinion as to his reputation for truthfulness and veracity?
A. Yes.
Q. What is your opinion?
A. I would say yes, Mr. Beckette is truthful.
Q. Would you believe him under oath?
A. Yes, sir.
Q. Have you formed an opinion of his reputation in the community as a peaceful law-abiding person?
A. Yes, sir. I have had an opportunity to do that since we worked together [in] the Essex Council, and I would say his character is generally peace-loving, and he is an upstanding character in the community.
Cross Examination
By Mr. O’Connell [Assistant State’s Attorney]:
Q. I believe you were also at one time Mr.
Beckette’s attorney, is that correct?
A. Yes, sir.
Q. Did you have occasion one time to send him correspondence, particularly January 26th, 1975?
Mr. Buchman: Your Honor, I would object to a confidential communication between client and lawyer.
The Court: I don’t know what he is getting at. Overruled. What is the answer . . .?
A. (By the witness) I don’t remember it.
Mr. O’Connell: May we approach the Bench? It would probably save a lot of trouble.
The Court: All right.
(Conference at the Bench.) 11 The Court: Read back the last question. (Whereupon, reporter read back the following question:
Question: Did you have occasion one time to send him correspondence, particularly January 26th,1975?)
The Court: There was an objection made, and overruled.
A. (By the witness) The answer is, Your Honor, I don’t remember. I sent him correspondence. I could have sent correspondence on that date.
Q. (By Mr. O’Connell) In addition, . . . did you file a motion to strike your appearance in this case?
Mr. Buchman: Objection.
The Court: Overruled.
A. Yes.
Q. Along with that, did you file a letter dated January 26th, 1975, addressed to Mr. James Daniel Beckette?
Mr. Buchman: Objection.
The Court: Overruled.
A. Yes;
Q. I believe you just testified that Mr. Beckette has been a truthful man, is that correct?
A. Yes.
Q. Did you not in that letter —
Mr. Buchman: I object to the question he is about to ask.
The Court: Does the question —
Mr. Buchman: It refers to something —
The Court: Finish the question.
Q. Did you not on January 26th, 1975 state to Mr. Beckette —
Mr. Buchman: Again, Your Honor, I object.
Mr. O’Connell: I quote —
The Court: Wait a minute — he has raised an objection. The basis of your objection as we discussed at the Bench is privileged communication between lawyer and client?
Mr. Buchman: Yes.
The Court: I think he lost that when he testified as to his reputation in the community where he lives. Overruled. Finish the question.
Q. (By Mr. O’Connell) Did you not also state to Mr. Beckette, ‘You have given me false information on occasion.’ ?
A. Yes.
Mr. O’Connell: I have no further questions.
Mr. Buchman: Your Honor, I object and move that the question and answer be stricken.
The Court: Overruled.
Redirect Examination
By Mr. Buchman:
Q. . . . did that refer to his relationship with his wife?
A. Yes.
Q. Nothing to do with this case?
A. No.
Q. You had asked him to be sure that he stayed away from his wife and he violated that instruction part?
A. Yes, and at that time I represented him in a domestic situation between him and his wife.
Q. And he did not follow your instructions with respect to this domestic situation?
A. No.” (Emphasis supplied).

It is the witness’s testimony, based upon his acquaintance with appellant which led to the witness’s forming and expressing an opinion as to appellant’s truthfulness, that allowed the State to cross-examine the witness for the purpose of impeachment. Recently, in Taylor v. State, 28 Md. App. 560, 346 A. 2d 718 (1975), cert. granted, February 3, 1976, and Brown v. State, 29 Md. App. 1, 16, 349 A. 2d 359, 368 (1975), we pointed out that the common law rule was “vastly broadened” by Courts Art. § 9-115. In Taylor we said:

“ ... No longer is a character witness prevented from speaking of specific acts or precluded from demonstrating a basis of knowledge leading to his own independent opinion.” 28 Md. App. at 568.

This is true because Courts Art. § 9-115 modifies the common law and permits the introduction of character evidence grounded on personal knowledge, and deletes the limitation that such evidence be confined to the accused’s reputation in the community.

Under the peculiar circumstances of this case, once the appellant made the tactical decision to call his former lawyer to the stand as a character witness and to have him testify on personal knowledge as to the appellant’s truthfulness and veracity, he implicitly waived the client-attorney privilege relative to confidentiality that had existed between the accused and the former attorney. The confidentiality was dubious as it had already been reduced to a mere myth by the attorney’s prior letter to the client, a copy of which, as we have said, was filed in the court and otherwise distributed. The State, having acquired through lawful means, the public record, the knowledge that the former lawyer was withdrawing from this case partially because of his having been furnished “false information” by the accused, was not prevented from utilizing that information to attack the witness’s credibility. We think it would be an absurdity to hold that the State could not, under the circumstances, attempt to impeach testimony by the witness that the witness thought the appellant to be a truthful person and believable under oath, when the witness declined to represent appellant because, inter alia, appellant had furnished the witness, former counsel, with false information. We perceive no error by the trial judge in overruling the appellant’s objections to the testimony. Appellant cannot have it both ways. He cannot call the former attorney as a character witness and then preclude the impeachment of the witness based on a matter that has been made part of a public record. We make clear that in this opinion we deal solely with the permissive cross-examination under the facts of this case. We are not to be construed as holding that a letter, similar to the one in the case sub judice, filed in a court, and otherwise publicly distributed, entitles the State to call the former lawyer as its witness for the purpose of impeaching the accused’s credibility. We do not reach that issue, and we expressly do not decide it. The case of Harrison v. State, 276 Md. 122, 345 A. 2d 830 (1975), relied upon heavily by appellant, is inapposite. The unusual factual posture of the instant case is readily distinguishable from Harrison's holding.

II

Appellant next challenges the trial judge’s advisory jury instructions. He asserts:

“The court erred in instructing the jury that the defendant who raises the defense of alibi has the burden of going forward with evidence sufficient to generate a reasonable doubt that he was present at the crime.”

The judge instructed the jury:

“ . . . [T]he defendant in this case has asserted the defense of alibi. This means that he could not have committed the offense with which he is charged because he was not at the place where the alleged crime took place at the time of its commission. With regard to this defense, once the State has introduced emdence otherwise sufficient to place the defendant at the scene of the crime, the defendant has the burden of going forward with eridence sufficient to persuade you that a reasonable doubt exists as to whether or not he was present at the crime. If you find from the evidence that the defendant has met this burden, you must find the defendant not guilty. ” (Emphasis supplied).

Appellant’s counsel took timely exception. The trial judge remarked that his instruction did not shift the burden of proof to the appellant. The judge stated, “For the record, further, so that we will understand each other, that instruction is taken from Robinson versus State. 20 Md. App. 450 [, 316 A. 2d 268 (1974), cert. denied, 272 Md. 747 (1974),] directly from that case.”

As we see it the judge misconstrued Robinson. In Robinson,--we said:

“We think the sound view to be that an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State’s proof to a point where it no longer convinces the fact finder beyond a reasonable doubt. Proof of an alibi, like any other defense testimony, is simply a means of controverting the State’s effort to establish criminal agency.” 20 Md. App. at 459.

The quoted excerpt from Robinson simply points out the practical effect of an alibi defense on the State’s case. It is not and was never intended to be a “blueprint” for a “patented” jury instruction. In this connection, we think it well to restate what Judge Digges wrote in State v. Grady, 276 Md. 178, 186, 345 A. 2d 436, 440 (1975):

“ ... [W]e suggest that it is not always appropriate to quote from appellate decisions in jury instructions since the language employed in a particular opinion may not adequately inform jurors of their responsibility.” (Citations omitted).

See also Blizzard v. State, 30 Md. App. 156, 351 A. 2d 443 (1976), wherein we stated that the underlying reasons for a jury instruction need not be communicated to that body. In addition, we discussed the difficulty that may arise when the phrases of “ .. . appellate opinions are ‘lifted’ and turned into jury instructions.” 30 Md. App. at 168.

Shortly after Robinson, we, in Jackson v. State, 22 Md. App. 257, 263, 322 A. 2d 574, 577 (1974), cert. denied, March 5, 1975, opined:

“ ... An alibi defense . . . merely requires an accused to go forward with such exculpatory evidence as he may wish to present for the trier of fact to consider in determining whether the State has met its burden [of proving the defendant guilty beyond a reasonable doubt]. The trial judges are cautioned not to instruct that an accused has the ‘burden of proof of establishing alibi because such an instruction is wrong. Moreover, an instruction that places the ‘burden’ upon an accused to prove by a preponderance of the evidence his alibi, may effectively erode the only defense available to an accused, and thus, cause him to stand naked and defenseless before the State’s accusation.”

We further said in Jackson that it is for the trier of fact to determine whether the alibi evidence, “ . . . considered and weighed on the same scale as all other evidence . . . creates a reasonable doubt of the defendant’s guilt.” 22 Md. App. at 264. Subsequently, in Grady v. State, 24 Md. App. 85, 329 A. 2d 726 (1974), we restated the holdings of Robinson and Jackson. The Court of Appeals, affirming our decision, said in State v. Grady, supra:

“ ... In sum, under the Federal Constitution, as well as the law of Maryland, the burden is on the State to prove all elements of the alleged crime and to do so beyond a reasonable doubt; hence, the defendant does not have to establish his alibi, not even by a minimal standard of proof. ‘Evidence of alibi should come into a case like any other evidence and must be submitted to the jury for consideration of whether the evidence as a whole on the issue of presence proves the defendant’s guilt beyond a reasonable doubt.’ Smith v. Smith, 454 F. 2d 572, 578 (5th Cir. 1971), cert. denied, 409 U. S. 885 (1972).” 276 Md. at 182.

We deem it advisable to counsel trial judges against injecting into jury instructions any assertion that a defendant carries a “burden of going forward with evidence sufficient to persuade . . . [the jury] that a reasonable doubt exists as to whether or not... [a defendant] was present at the crime.” Such an instruction, in our view, may mislead the jury into thinking that a defendant carries a burden of proving his alibi beyond a reasonable doubt. The State carries the “burden of proof,” not the appellant. Referring to the going forward with evidence establishing an alibi as a “burden” serves to confuse, not enlighten, and this should be avoided. An alibi is no different than other evidence offered by a defendant. It must be overcome by the State’s proof beyond a reasonable doubt.

Because we believe a fair reading of the instruction in this case would lead the jury to believe that the appellant carried the burden of eroding the State’s proof through the presentation of “evidence sufficient to persuade .. . [the jury] that a reasonable doubt exists,” we conclude that the judgment must be reversed.

Having so held it is unnecessary for us to reach the third issue presented by appellant as that question may not arise anew at a retrial.

Indictments No. 50711 and 51183

Appellant was, as we have already noted, also convicted by a jury in the Circuit Court for Baltimore County of rape, housebreaking and the use of a handgun in the commission of a felony.

On appeal to this Court, appellant’s counsel candidly admits that he has “ . .. carefully scrutinized the record of the trial proceedings, [and] ... is unable to discover any reversible error.”

Under Anders v. California, 386 U. S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967), and Tippett v. Director, 2 Md. App. 465, 235 A. 2d 314 (1967), whenever an appeal is presented to us in such a posture, we are required to examine fully the record of the proceeding. We have, in the instant case, reviewed the suppression hearing, the voir dire, the transcript of the trial, including evidentiary rulings, as well as the trial judge’s jury instructions. We have searched the record in its entirety in order to find anything that is “arguable on the merits” and we discover no such issue. This appeal is, as counsel noted, wholly frivolous.

Judgment on Indictment No. 19907 reversed.

Case remanded for a new trial.

Judgments on Indictments 50711 and 51183 affirmed.

      . The letter from the attorney to the appellant refers specifically to Md. Rule 525 as authority for withdrawal from the case. Rule 525, however, is concerned with audits. It has no application, whatsoever, to the case at bar. What was obviously meant by counsel was Rule 125.

      . As far back as 1651, Sir Alan Patrick Herbert, in Jacula Prud&ntum, recorded a proverb that one should, “Deceive not thy physician, confessor, nor lawyer.”

      . See 3 Wharton’s Criminal Evidence § 557 (13th ed. C. Torcia 1973) (examples of some of the exceptions to the general rule).

      . The transcript does not disclose at what point the bench conference ended. We infer that, the conference was not recorded and that the judge’s instruction to “Read back the last question” occurred before the jury after the conference had ended.


text:
    COMMUNITY REALTY COMPANY, INC. et al. v. JOHN K. SISKOS et al.
    [No. 806,
    September Term, 1975.]

      Decided April 1, 1976.

    The cause was argued before Thompson, Gilbert and Mason, JJ.

      William R. Levasseur for appellants.

      Stephen B. Caplis, with whom was Peter G. Angelos on the brief, for appellee John K. Siskos. J. Kent Leonnig,

      Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Albert A. Levin and H. George Meredith, Jr., Special Assistant Attorneys General on the brief, for other appellee.
   Gilbert, J.,

delivered the opinion of the Court.

This appeal arises from a Workmen’s Compensation claim that had its origin when John K. Siskos, appellee, fell from a ladder. Siskos broke his right leg and otherwise injured himself. At the time of the injury, Siskos was employed by Community Realty Co., Inc., one of the appellants. American Insurance Company was the insurer of Community Realty, and, as such, is also an appellant.

From the record, we glean that the accident occurred on March 11, 1971. The Commission, in its award of compensation, May 18, 1973, found that Siskos had sustained a 35% loss of use of his right foot and 10% industrial loss of use of the body. Seemingly dissatisfied with the award by the Commission, Siskos appealed to the Superior Court of Baltimore City. On August 21, 1974, the appeal was dismissed by Siskos’s attorney. According to the record, Siskos had filed a petition with the Commission to reopen the case in order that the Commission might “ . .. determine increased disability.” The appellants impleaded the Subsequent Injury Fund. The Fund raised seven issues, not here germane because the Fund was held by the Commission not to be “. . . involved in this case.”

The petition to reopen the matter was heard before Commissioner Joseph I. Paper on November 15, 1974. The Commission, on January 29, 1975, found that Siskos had “ . . . a permanent partial disability resulting in 65% loss of use of the right foot, .. . [including the] fore leg, and a permanent partial disability under ‘Other Cases’ amounting to 25% industrial loss of use of his body. . . .” The result, expressed in dollars and cents, was an increase of $8,296.01 over the original award.

Aggrieved by Commissioner Paper’s decision, the appellants entered an appeal to the Superior Court of Baltimore City. The case was heard non-jury by Judge Solomon Liss, “ .. . primarily on the record before the Commission together with argument of counsel.” At the conclusion of the trial, Judge Liss stated:

“Gentlemen, I would say, as I said before, I think this is the kind of case in which I am not convinced, on the basis of this record, that the Commissioner considered a portion of the injury which was not compensible as determined by [another] Commissioner . . . previously.
From the records, I find it is quite possible for me to determine that he did not so consider it.
Under those circumstances, the burden is on . . . [appellants] to convince me that it is not so, and I am just not convinced. I don’t know.
What is the old cliche, when your mind is in a state of equal balance? That is it.”

Appellants then appealed to this Court where they present two issues for our review, videlicet

“I. On a reopening by claimant, is the Workmen’s Compensation Commission precluded from awarding compensation to an area of the claimant’s body which was specifically found by an earlier order not to be causally related to the accident, i.e. was the decision of the Commission in the first instance binding on the Commission on a later reopening as having the effect of res judicata?
II. Did the Commission have sufficient evidence before it to modify and/or adjust a prior award and did the Commission exceed its powers and misconstrue the law and facts applicable thereto?”

On the basis of the record before us, question I and the second part of the compound sentence of question II are not well taken, and for reasons hereafter explained we shall not consider them. We treat the first part of the compound sentence of question II as a challenge to the sufficiency of the evidence.

We do not render answers to the remaining issues presented because the appellants have grounded their appeal upon extraneous matters not included in the record. Appellants’ assault upon the Commission’s order, as affirmed by the trial court, injects into this case the issue of res judicata with respect to the findings of the Commission at the original hearing in May, 1973. To support their contention, appellants have printed as part of the record extract what purports to be the transcript, medical reports and findings of the Commission from the May, 1973, hearing. The difficulty is that there is nothing within the record that leads us to conclude that the proceedings of May, 1973, were ever before Judge Liss. The record in this case, as it reaches us, is confined to the events that occurred at the time of the hearing before the Commissioner on the petition to reopen, the paper writings relative to the appeal to the Superior Court of Baltimore City and a transcript of Judge Liss’s oral opinion.

Patently, if the matter was not before the trial court, it may not be considered by us. We are compelled to ignore that portion of the record extract that is concerned with the May 18, 1973, hearing. Consequently, we are left with a record confined in its scope to the petition to reopen and the action taken thereon by the Commission and the trial judge.

Md. Rule 1028 mandates that a record extract “ . .. shall be copied verbatim . . .’’ from the record. The noun “record” as used in the rule means the entire file, including pleadings, transcript, judgment appealed, the opinion of the trial judge or the jury charge, if there be a jury, and other allied paper writings. See Rule 1026. The parties are not entitled to supplement the record by inserting into their record extract such foreign matter as they may deem advisable. In this connection, we note that the appellants, with the consent of the appellee, on November 26, 1975, filed a motion in this Court to remand the case to Judge Liss. The reason for the motion, as stated by the movant, was:

“2. That prior to the subject February 27, 1975 appeal by the Employer and Insurer, an earlier appeal from a prior award of the Commission dated May 18, 1973, had been entered by this claimant in the Superior Court of Baltimore City. At that time, the Commission’s entire record was transmitted to and filed in the Superior Court before claimant dismissed his appeal on August 8, 1974. Thus, the entire record of the Commission, including the full transcript, all medical reports submitted at hearings, the awards of the Commission, etc., was filed with the Superior Court of Baltimore City but in a separate appeal file (WCC//A-508418) from that presently before this Honorable Court and is not now included as part of the record presently before this Court. Also omitted from the present record are the legal papers from the earlier appeal, i.e., appeal, answer and subsequent dismissal.
3. That it is believed that Judge Liss, in deciding the subject, case considered the facts contained in the claimant’s earlier appeal, which facts were vital to the argument below by the Employer and Insurer and which facts are vital also to the appeal herein. Nevertheless, that part of the Superior Court file referred to in Paragraph #2 above, has not been transmitted to this Court. Those parts of the Commission’s record which were not transmitted on March 26, 1975 and May 20, 1975, of course, are not a part of this record. Consequently, even if the parties stipulate to the facts in this case, the subject record will not fully and accurately reflect the matters before the trial judge below.
4. That since the issue of res judicata will be a major issue in this appeal, it is necessary to secure a complete record and, furthermore, it is essential that all of the records before the Workmen’s Compensation Commission and all of the records pertaining to the earlier appeal should be presented to this Court. Therefore, the substantial merits of this case cannot be fairly determined by affirming, reversing or modifying the judgment below.
5. That the question now presented before this Court has substantial merit and that the purposes of justice will be advanced by further proceedings to bring before the Court below and before this Court all essential evidence which the Commission and the Superior Court inadvertently omitted from the subject record.”

Appellants requested us to “ . . . remand this case . . . ” and to order the trial “ . . . court to conduct further proceedings to amend the pleadings and to introduce .additional evidence, so that the merits may be fully presented to the lower court and/or to this . . . Court.” Chief Judge Orth denied the appellants’ motion. We glean from the denial that the Chief Judge believed, as do we, that appellants had already been afforded their day in the trial court and that they could not use the remand as a vehicle to relitigate their case in an endeavor to “plug the holes” and shore-up its weak foundation. Notwithstanding the denial of the motion, appellants then printed within their record extract material which they had theretofore acknowledged, in the motion to remand, was not in the record. At the expense of repetition, we reiterate that we shall not consider it. The denouement of the issues appellants seek to foist upon us will have to await another day when they are properly raised in the trial court, preserved for appeal, and presented to this Court.

We have previously indicated that we shall consider this appeal as challenging the sufficiency of the evidence. We do so because we think the first part of the compound sentence of the second question raised by appellants, viz: “Did the Commission have sufficient evidence before it to modify and/or adjust a prior award,” presents that question squarely to us.

The record reveals that when Siskos testified before the Commission on the petition to reopen, he related to the Commission the increase in pain and immobility to which he was subjected after the award of May, 1973. He described in detail his increased loss of locomotion and the pain he suffered in his chest area. Subsequent to the May, 1973, hearing, Siskos had been examined by an orthopedic specialist whose written report was received into evidence without objection. The report stated that Siskos had an “80 per cent” disability of the right foot and, “[disability of the left shoulder, which includes the chest . . . [of] 50 per cent permanent.” At the conclusion of the testimony, the Commission suggested that the appellants have Siskos examined by a “chest surgeon.” The examination was made and the “chest surgeon[s]” reported that, “More on the grounds of sympathy to . . . [Siskos] than based on medical knowledge, I venture to establish his disability at 10% to his chest wall and 15% to his left shoulder girdle. Both disabilities should be considered as permanent in nature.”

As we have said above, Commissioner Paper concluded that Siskos had a 65% loss of use of the right foot and 25% industrial loss of use of his body. Judge Liss reviewed these findings and affirmed the Commission’s decision. We cannot say that Judge Liss was clearly erroneous. Md. Rule 1086.

It has been held in a series of cases that the “ . . . decision of the Workmen’s Compensation Commission is prima facie correct and the burden of proving otherwise is upon the party attacking that decision.” Dent v. Cahill, 18 Md. App. 117, 123, 305 A. 2d 233, 237 (1973). See ABC Day Care Center, Inc. v. Browne, 17 Md. App. 470, 302 A. 2d 708 (1973); William J. Burns Int’l Detective Agency, Inc. v. Ferris, 16 Md. App. 568, 299 A. 2d 487 (1973); Holbrook v. G.M. Assembly Division, General Motors Corp., 15 Md. App. 425, 291 A. 2d 171 (1972); Carling Brewing Co. v. Belzner, 15 Md. App. 406, 291 A. 2d 175 (1972); Yelton v. Higgins, 13 Md. App. 599, 284 A. 2d 857 (1971); Loving Helicopters v. Kaufman, 13 Md. App. 418, 283 A. 2d 640 (1971); Winters v. Payne, 13 Md. App. 327, 283 A. 2d 807 (1971); Uninsured Employers’ Fund v. Merritt, 13 Md. App. 73, 281 A. 2d 411 (1971). See also Morris v. Christopher, 255 Md. 372, 258 A. 2d 172 (1969); Blake Constr. Co. v. Wells, 245 Md. 282, 225 A. 2d 857 (1967). Where, however, the attack upon the Commission’s findings falls short of meeting the burden that has been thrust upon them by the law or come close to meeting the burden but, nevertheless, leave the mind of the trier of fact in a state of equilibrium, the Commission’s findings must be affirmed. Blake Constr. Co. v. Wells, 245 Md. at 286; Dent v. Cahill, 18 Md. App. at 124.

Judge Liss’s comment that appellants have not met their burden and that his mind, as trier of fact, was left in a “state of equal balance,” means that under Blake and Dent, the supplemental award passed by the Commission was properly affirmed.

Judgment affirmed.

Costs to be paid by appellants.

      . For reasons that escape us, the Fund, in its answer to the appellants’ appeal to the Superior Court of Baltimore City, urged the court to reverse the Commission.


author: Mason, J.,

text:
    JOHN HENRY SMITH v. STATE OF MARYLAND

      [No. 14,

    September Term, 1975.]

      Decided April 12, 1976.

      The cause was argued before Moylan, Davidson and Mason, JJ.

      Stephen A. Tarrant, Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donaldson C. Cole, State’s Attorney for Cecil County, Edwin H. W. Harlan, Jr., State’s Attorney for Harford County and Peter C. Cobb, Assistant State’s Attorney for Harford County on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, John Henry Smith, was tried before a jury in the Circuit Court for Cecil County and convicted of two counts of murder and two counts of arson. He was sentenced to life imprisonment for each of the murder counts, the terms to be served concurrently. For the arson counts, he was sentenced to two thirty year terms which were to run concurrently with each other, but consecutively to the sentences imposed for the murder counts.

The crimes for which the appellant was convicted stemmed from the burning of Gene’s Bar and Restaurant in Forest Hill, Harford County, during the early morning hours of January 30, 1972. The building — a single structure with the bar and restaurant on the lower floor and family dwelling quarters on the upper floor — was completely destroyed. At the time of the fire, the bar and restaurant had closed for the night and seven persons were sleeping in the living quarters. Five persons managed to escape but the bodies of Rosalie Ann Poe, age fifteen, and Diane Elizabeth Reichert, age eighteen, were found in the debris, burned beyond recognition.

On appeal five issues are raised:

I. Whether a second and subsequent indictment on the arson charges could properly be removed to Cecil County, over the objections of the appellant, for consolidation with the other charges pending against appellant.

II. Whether appellant’s conviction of two counts of arson for the burning of a single building constitutes double jeopardy.

III. Whether appellant’s motion for acquittal in regard to the murder charges should have been granted on the basis that the State failed to prove the corpus delicti of the alleged crimes.

IV. Whether the Miranda warning given appellant was so defective that the trial court erred in admitting, over appellant’s objection, certain statements made by the appellant while in police custody.

V. Whether the trial court erred in refusing to admit the results of a “psychological stress evaluation” test proffered by appellant.

We consider these issues in order.

I.

REMOVAL OF THE SUBSEQUENT INDICTMENT

Article IV, Section 8 of the Constitution of Maryland provides in relevant part:

... in all cases of Presentments or indictments for offences, which are or may be punishable by death, pending in any of the courts of law in this State having jurisdiction thereof upon suggestion in writing under oath of either of the parties to said proceedings that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record of proceedings in such suit or action, issue presentment, or indictment, to be transmitted to some other court having jurisdiction in such case for trial, but in all other cases of presentment or indictment, pending in any of the Courts of law in this State having jurisdiction thereof, in addition to the suggestion in writing of either of the parties to such presentment or indictment that such party cannot have a fair and impartial trial in the court in which the same may be pending, it shall be necessary for the party making such suggestion to make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same, And thereupon the said court shall order and direct the record of proceedings in such presentment or indictment to be transmitted to some other Court having jurisdiction in such cases for trial....

This constitutional provision has been embodied in Maryland Rules 542 and 738.

On January 30, 1973, the grand jury for Harford County returned three indictments, charging the appellant with the murder of Diane Reichert, the murder of Rosalie Ann Poe, and the arson of a dwelling house. On July 11, 1973, the appellant filed a motion for removal under Maryland Rule 738 in which he claimed he could not receive a fair and impartial trial in Harford County. The motion was granted and the case was transferred to Cecil County. On April 6, 1974, the grand jury for Harford County returned an additional ten count indictment against the appellant. This indictment arose out of the same factual circumstances as the first indictments and was apparently obtained because the State believed the first arson indictment may have been defective. The new indictment charged several counts of arson and related burning offenses and one count of burglary.

The State, under Maryland Rule 725 (Motion for Appropriate Relief) moved to transfer the new indictment to Cecil County in order that it could be consolidated with the other indictments by proper motion in that court. The appellant objected to the granting of this motion, claiming the additional indictment was a new case in which the State, in order to transfer it, had to comply with Maryland Rule 738 and file a suggestion under oath that it could not receive a fair and impartial trial in Harford County. The State indicated it could not in good conscience make such an affidavit. The motion was granted and the new indictment was transferred to Cecil County. Prior to trial in Cecil County, the State entered a nolle prosequi to the first arson indictment and substituted, in lieu thereof, the new arson indictment.

The issue is whether the subsequent indictment containing non-capital offenses arising out of the same indictment was properly removed. In Stevenson and Borum v. State, 9 Md. App. 152, 263 A. 2d 36 (1970), this Court held that where the defendant exercises his absolute right to removal of the capital charge the other non-capital previously consolidated charges are carried along. In that case, however, both the capital and non-capital offenses were removed at the same time. See also State v. Coffield, 17 Md. App. 305, 301 A. 2d 44 (1973). In the present case, the capital and non-capital charges were removed on July 11, 1973, but the additional charges were not removed until September 25, 1974.

As a general rule, the effect of a change of venue in a criminal case is to remove the cause absolutely from the jurisdiction of the court granting the change, except for curing irregularities or omissions in the record. Further, the court to which the indictment has been transferred is not divested of jurisdiction by dismissal, nolle prosequi or mistrial, and it retains exclusive jurisdiction to try the case after a new indictment for the same offense has been returned. 21 Am. Jur., Criminal Law, §§ 431, 434 (1965).

Although the cases are few, there is authority in other jurisdictions which hold that a subsequent indictment can be transferred to a removee court without the necessity of complying with the statutory provisions authorizing removal. In Ex parte Lancaster, 206 Ala. 60, 89 So. 721 (1921), a change of venue in a murder prosecution was ordered. The trial in the removee court resulted in a mistrial and a nolle prosequi was entered. The accused was re-indicted in the court of original jurisdiction, and he sought to prevent trial in that court. The State resisted, claiming that the jurisdiction of the removee court was divested by the entering of a nolle prosequi in the case. The State further contended that if the accused wanted his case transferred to another court, he would have to file another application for removal. The court held:

When the change of venue was granted for the trial of the defendant for this offense to Marion county, the statute contemplates that Marion county is the only one in which the trial of the defendant for that offense may be had, regardless of the number of the indictments that may afterwards be preferred against him for the same offense.

See also Annot. 85 A.L.R.2d 997 (1962). Cf. State ex rel. English v. Normile, 108 Mo. 121, 18 S. W. 975 (1892), where the court held that the finding of a new indictment was not an amendment of the pleadings in the pending case, but was the recommencement of the prosecution which could only be done in the court having original jurisdiction.

We think the better rule is that once an order for removal has been granted in a criminal case, jurisdiction in the transferring court to try the case ends. Thereafter,, all subsequent indictments for the same offense, or founded upon the same transaction, should be transmitted to the transferee court without the necessity of complying with the provisions of Maryland Rule 738. Furthermore, if a nolle prosequi of the original indictment or any count contained therein is entered in the transferee court, this fact does not reinvest jurisdiction for the trial of the new indictment in the court of original jurisdiction. To hold otherwise would mean that once a case has been removed the prosecution could not effectively correct a defective indictment or bring additional charges. It would also permit the prosecution, for all intents and purposes, to nullify the removal statute by entering a nolle prosequi to an indictment that has been ordered removed. We hold, therefore, that the removal by the appellant of his case from Harford County to Cecil County because he could not receive a fair and impartial trial fixed, at that point, the place of venue in Cecil County, not only for the original indictment, but also for the subsequent indictment.

II.

DOUBLE PUNISHMENT

Article 27, § 6 of the Annotated Code of Maryland provides in part:

Any person who . . . sets fire to or burns . . . any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto . . . shall be guilty of arson ....

The appellant was convicted under Counts One and Three of the arson indictment, which charge in part:

Count One
. . . John Henry Smith . . . unlawfully did willfully and maliciously set fire to and burn and cause to be burned a certain dwelling house ... of Milton Eugene Poe, Sr. . . .
Count Three
.. . John Henry Smith ... on the said day, in the said year .. . unlawfully did willfully and maliciously set fire to and burn and cause to be burned a certain shop . . . t/a Gene’s Bar and Grill, said shop being parcel of, belonging to, and adjoining a certain dwelling of Milton Eugene Poe, Sr. . . .

The building the appellant was convicted of burning was a single structure which served a dual purpose. On the first floor Milton Eugene Poe, Sr., operated a bar and restaurant. On the second floor he resided with his wife and four children. Between the two floors there was an inside stairway which provided access and communication.

The pivotal question is whether the single act of burning-one building housing a bar and restaurant on the first floor and a dwelling on the second floor constitutes one or two offenses under § 6, supra.

In judging whether crimes set forth in different counts of an indictment are the same we must determine, “whether each count so set up constitutes the same elements and would require the same evidence to convict. If such is the case, then the counts charged the same crime, but if such is not so, the counts would charge a different crime.” Weinecke v. State, 188 Md. 172, 177, 52 A. 2d 73 (1947). In Thomas v. State, 277 Md. 257, 353 A. 2d 240 (1976), the Court of Appeals after a comprehensive review of the federal and state laws on the issues of double jeopardy observed:

Certain principles concerning the required evidence or same evidence test emerge from the cases. The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes. And of course if both statutes have exactly the same elements, the offenses are also the same within the meaning of the prohibition against double jeopardy, and successive prosecutions are barred.

At common law the term dwelling house comprehended not only the mansion house but all outhouses which were a parcel thereof. 5 Am. Jur. 2d Arson, § 19 (1962). Further, it is a well settled common law doctrine that a building in order to constitute a dwelling house need not be used exclusively for that purpose. The use of one part of the building as a dwelling gives the character of a dwelling house to the entire building if there is internal communication between the part used for dwelling purposes and the part used for other purposes. United States v. Cardish, 145 F. 242 (D. Wisc. 1906).

Here, the appellant, in a single act, burned one building which included a dwelling and a shop that was a parcel thereof. In Butina v. State, 4 Md. App. 312, 317, 242 A. 2d 819 (1968), this court stated that under § 6, supra, a person commits arson if he sets fire to or burns or causes to be burned a “dwelling house (and other property that is parcel thereto designated by the statute) . . .”. (Emphasis added).

It is manifest under the common law and under § 6, supra, that the bar and restaurant and the dwelling house were the same identical building and that the burning was the same identical act. Applying the test set forth in Weinecke, supra, the same evidence required to convict under Count One was necessary to convict under Count Three and vice versa. Thus, the two counts charged the same offense.

The fifth amendment to the Constitution of the United States, in pertinent part, states, “. . . nor shall any person be subject for the same offense to be twice put in jeopardy . . . .”

In Ex parte Lange, 85 U. S. (18 Wall) 163, 21 L. Ed. 872 (1874), the Supreme Court said:

... we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it. Id., 173.

In North Carolina v. Pearce, 395 U. S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court observed that the double jeopardy clause provides three related protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. (Emphasis added).

Inasmuch as the Supreme Court in Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969), held that the double jeopardy clause of the fifth amendment to the Constitution is applicable to State prosecutions through the fourteenth amendment, the Supreme Court decisions are controlling in cases presenting double jeopardy issues in this State. Since the appellant was twice punished for the same offense in violation of his constitutional rights the judgment under Count Three will be reversed.

III.

IDENTITY OF THE VICTIMS

The evidence disclosed that prior to the time of the fire, which occurred around 2:40 a.m. on January 30, 1972, there were seven persons sleeping in the dwelling portion of the building. After the blaze was extinguished, two were missing, Rosalie Ann Poe, age fifteen, and Diane Elizabeth Reichert, age eighteen.

Two bodies were found in the debris. Both were burned and charred beyond recognition and “burst open” from the heat. The deputy medical examiner determined that both of the deceased were females, and that the cause of death was due to suffocation and burning. No autopsy or scientific tests were performed to identify the victims. One of the victims had a small chain necklace around her neck which was similar to the one Diane Reichert was wearing when last seen alive. The bodies of the two females taken from the burned structure were assumed by all to be Rosalie Ann Poe and Diane Reichert and no further identification was attempted.

The appellant contends that the court erred in denying his motion for judgment of acquittal to the murder charges because the State failed to prove the corpus delicti. In Maryland, the corpus delicti in a homicide case is established if there is proof that the victim is dead and that the death was a result of criminal activity by someone. Bagley v. State, 232 Md. 86, 192 A. 2d 53 (1963); Pierce v. State, 227 Md. 221, 175 A. 2d 743 (1960). The corpus delicti may be established by direct or circumstantial evidence. Robinson v. State, 18 Md. App. 678, 308 A. 2d 734 (1973). In a case such as this, where the victims’ bodies were destroyed beyond recognition, circumstantial evidence which tends to prove the identity of the victims is admissible. See 40 Am.Jur.2d, Homicide, § 289 (1968). We conclude, therefore, that the evidence and inferences drawable therefrom were sufficient for the jury to find beyond a reasonable doubt that the burned and charred bodies found in the building were the bodies of the same girls whom the appellant was charged with murdering.

IV.

ADEQ UACY OF THE MIRANDA WARNING

In the landmark case of Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court stated:

The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system . . . that he is not in the presence of persons acting solely in his interest. (Emphasis supplied).

Two oral and one written statement were introduced into evidence against the appellant. Prior to making the oral statements, the police read the appellant his Miranda warnings from a card which contained, inter alia, the following: “If you choose to answer, your answers can be used against you in court.” The prelude to the written statement contained a similar warning: “If you want to make a statement and answer our questions, anything you do or say can be used against you in a court of law.”

The appellant argues that by omitting the words “and will” from the Miranda warnings, the statements in question were improperly admitted into evidence against him. He further contends a warning that a statement can be used in court against you is not the same as the admonition that it can and will be used.

This precise question was raised and disposed of in Davis v. United States, 425 F. 2d 673 (9th Cir. 1970). In that case, the court held that a warning card which reads, “Anything you say can be used against you in court” rather than “anything you say can and will be used against you in court” was sufficient to conform to Miranda requirements. Of like import is Craft v. United States, 403 F. 2d 360 (9th Cir. 1968), where the accused was told that any information elicited from him “could be” instead of “will be” used against him. The court held that the language used left no uncertainty as to the consequences of his making the statements, therefore, the appellant was sufficiently apprised of his rights.

We agree with the rationale of the federal cases, supra. The omission of the words “and will” in the Miranda warnings was not sufficient, standing alone, to render the statements inadmissible.

V.

ADMISSIBILITY OF THE PSYCHOLOGICAL STRESS EVALUATION TEST

The appellant contends that the trial court erred in refusing to admit into evidence the exculpatory results of a psychological stress evaluation test he had taken. According to the evidence adduced the psychological stress evaluation test is basically a voice lie detector test. The principle underlying this test is that the human voice has many frequencies or a number of sound waves. In addition to the voice that can be heard, there are a series of low frequency (FM) sound waves which are inaudible to the human ear. When a person is under stress or lying, these FM sound waves tend to disappear, due to physiological changes in the body. Conversely, when a person is not under stress or is telling the truth, these FM sound waves are more pronounced. In other words, the absence of FM sound waves indicates the person is lying; the presence of FM sound waves indicates the person is telling the truth.

In order to conduct this test, the subject is asked certain questions and the answers are recorded on a tape recorder. This tape is reduced in speed and is fed into a psychological stress evaluator, which is similar to an electrocardiogram machine. Based on the reading of the chart from this machine, the examiner determines whether the subject is lying or telling the truth. This instrument has been in existence for approximately five years. It has a purported accuracy of 85 percent which is comparable to that of a lie detector.

In State v. LaForest, 207 A. 2d 429 (1965), the Supreme Court of New Hampshire stated:

Polygraph and scientific tests to determine deception are familiar investigative devices in criminal investigation and are employed generally in industry and government for various purposes. . .. Nevertheless the results of these tests have been rejected by the courts as evidence of guilt or innocence of the accused by the overwhelming weight of judicial authority on the ground that these tests have not yet attained sufficient scientific acceptance as an accurate and reliable means of ascertaining truth or deception ....
In this case we follow the general rule that evidence of polygraph tests is inadmissible.

In Rawlings v. State, 7 Md. App. 611, 256 A. 2d 704 (1969) this court in adopting the rule enunciated in LaForest, supra, stated:

We have examined all available authorities and have concluded that at this stage in the science or the art of lie detecting, the rationale of the general rule expressed above represents the sounder approach to the issue. Accordingly, we find no fault in the lower court’s excluding the results of the lie detector tests administered to the appellant .... Rawlings, supra, 614.

We decline to reconsider our decision in Rawlings, as urged by the appellant. The difference, if any, between the psychological stress evaluation test and a lie detector test is too minor and shadowy to justify a departure from our prior decision. A lie detector test by any other name is still a lie detector test.

Judgments under counts one and two of indictment 2923 affirmed.

Judgment under count one of indictment 3262 affirmed.

Judgment under count three of indictment 3262 reversed.

      . On July 11,1973, appellant moved for dismissal on the ground that he had been denied a speedy trial. The motion was denied and appellant took an interlocutory appeal to this court.
      In a per curiam opinion filed May 23, 1974 (No. 687, September Term, 1973) we dismissed the appeal as premature. The Court of Appeals denied appellant’s petition for writ of certiorari on November 7, 1974. (Miscellaneous docket, No. 176, Criminal).
      On October 4,1974, the appellant filed a second interlocutory appeal, this time challenging the removal to Cecil County of a subsequent indictment. We granted the State’s motion to dismiss that appeal on December 12,1974. (No. 773, September Term, 1974).

      . The automatic removal provision of the Maryland Constitution as applied to civil litigants was held unenforceable under the equal protection clause of the United States Constitution. Davidson v. Miller, 276 Md. 54 (1975).

      . In Bartholomey v. State, 267 Md. 175 (1972), death sentences under existing discretionary statutes of Maryland were declared unconstitutional. In Johnson v. State, 271 Md. 189 (1974), the Court of Appeals held that there was no absolute right of removal in cases formerly punishable by death. Art. 27, § 413, effective 7/1/75, provides for the imposition of the death sentence in eight enumerated situations.

      . Inexplicably both the appellant and appellee briefed and argued this issue on an incorrect assumption that the appellant had been convicted under Article 27, §§ 6 and 7. Apparently neither looked at the indictment. See Haslup v. State, 30 Md. App. 230, 351 A. 2d 181 (1976).


text:
    WILLIE CASON v. STATE OF MARYLAND
    [No. 275,
    September Term, 1975.]

      Decided April 12, 1976.

    The cause was submitted on briefs to Gilbert, Lowe and Mason, JJ.
    Submitted by Alan H. Murrell, Public Defender, Arnold M. Zerwitz, Assistant Public Defender and Barry Cohen, Assistant Public Defender, for appellant.

      Submitted by Francis B. Burch, Attorney General, David B. Allen, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City and Charles Frey, Assistant State’s Attorney for Baltimore City, for appellee.
   Mason, J.,

delivered the opinion of the Court.

On June 11, 1974, the appellant, Willie Cason, was sentenced in the Criminal Court of Baltimore to three years for the crime of shoplifting. This sentence was suspended and the appellant was placed on probation. On January 23, 1975, a probation revocation hearing was held and the hearing judge found that the appellant had violated the following conditions of probation: (1) he failed to conduct himself in a law abiding manner, viz., he committed subsequent offenses; and (2) he failed to take psychiatric treatment as directed. As a consequence of these violations, appellant’s original three year sentence, imposed and suspended on June 11,1974, was reinstated.

At the probation revocation hearing, the appellant requested to represent himself. The court stated, “I am not going to let him waive his right. I want you (counsel) to stay there, in a sense take a passive role, that’s what he seems to want.” The court further stated it was “not letting him waive counsel because I don’t think it is intelligently waived.”

On appeal, the appellant contends, in effect, that he was denied assistance of counsel. Before we address this issue, we must determine whether the appellant was entitled to counsel in the first instance. Ordinarily, a probation revocation hearing which does not involve the imposition of a sentence is not a critical stage of a criminal proceeding and the probationer is not entitled to counsel as a sixth amendment right under the United States Constitution. Knight v. State, 7 Md. App. 313, 255 A. 2d 441 (1969). On the other hand, the constitutional right to counsel extends to probation revocation proceedings where: (1) sentence is imposed at the hearing, or (2) due process would be affronted. Laquay v. State, 16 Md. App. 709, 299 A. 2d 527 (1973). Here the appellant had already been sentenced at conviction for the substantive offense. Therefore, any right he has to counsel must be invoked under the due process clause of the fourteenth amendment, rather than under the sixth amendment. In Gagnon v. Scarpelli, 411 U. S. 778, 93 S. Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court stated at 411U. S. 790-791:

It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements... . Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.

In applying the facts of this case, i.e., appellant’s inability to intelligently waive counsel, to the general principles enunciated in Gagnon, supra, we conclude that under the dictates of fundamental fairness and due process the appellant was entitled to counsel. See Lau v. State, 29 Md. App. 615, 350 A. 2d 142 (1976); McRoy v. State, 24 Md. App. 321, 330 A. 2d 693 (1975).

We now return to the issue of whether the appellant was denied assistance of counsel. It is clear that a defendant in a criminal case has a constitutional right of self-representation and he may defend himself without counsel when he knowingly and intelligently elects to do so. Faretta v. California, 422 U. S. 806, 95 S. Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Renshaw, 276 Md. 259, 347 A. 2d 219 (1975); Hamilton v. State, 30 Md. App. 202, 351 A. 2d 153 (1976) . By the same token, we hold that the constitutional right of self-representation extends to a probationer.

In Renshaw, supra, the defendant at trial requested appointment of different counsel which was denied. The trial court told the defendant he could conduct his own case but counsel would be standing by and available if needed. The Court of Appeals, speaking through Judge Levine, held that a request for different counsel is not a waiver of the sixth amendment right to the assistance of counsel. Regarding self-representation and waiver of counsel, the Court of Appeals observed:

To be sure, a criminal defendant does have a constitutional right to proceed without counsel if he intelligently and competently waives his right to counsel. (Citation omitted). But the standard for waiver of the right to counsel remains unchanged .... The record must show that the defendant is competent to waive the right to counsel, and that he knowingly and intelligently has done so after being made aware of the advantages and disadvantages of self-representation .... Where the accused cannot waive the right to counsel, or has not effectively done so, the court must take steps to insure that the accused is represented by counsel even if he professes his unwillingness to have a lawyer. Id. at 267-268 (Emphasis supplied).

In the present case, the hearing judge held, and rightfully so, that the appellant could not knowingly and intelligently waive his right to counsel. Notwithstanding this holding, the judge, instead of insuring full legal representation for the appellant, directed counsel to remain at the trial table but to “take a passive role”. Consequently counsel did not participate in the hearing and the appellant was compelled to conduct his own defense. The appellant was entitled to more than the mere presence at the trial table of someone with a law degree. He had a right to genuine and effective representation. Renshaw, supra.

In speaking to the issue of representation by counsel in the absence of a waiver, the Renshaw court cogently and succinctly stated:

Absent a waiver, effective representation must be afforded regardless of whether it is requested by the accused. (Citation omitted). No waiver having been made here, the trial court should have ordered counsel to continue to render the fullest possible legal representation under the circumstances, with or without the cooperation of the defendant, bearing in mind, as the Supreme Court noted in Gagnon v. Scarpelli, [411 U. S. at 787] . . . that the lawyer who represents a criminal defendant is “bound by professional duty to present all available evidence and arguments in support of [the client’s] positions and to contest with vigor all adverse evidence and views.” The court erred, therefore, in advising counsel to remain silent unless requested by the defendant to speak. Id. at 270 (Emphasis supplied).

We similarly conclude that the hearing judge in the case subjudice erred in advising counsel to take a passive role.

It follows from the views we have expressed that the absence of effective representation of counsel in this proceeding was a denial of due process under the fourteenth amendment.

Order revoking probation reversed.

Case remanded for a new hearing.

      . The hearing judge apparently concluded that the appellant could not intelligently waive counsel because of his mental condition.