text:
    WILLIAM G. CLARK et al. v. JULIAN M. SEIDEL ET AL.
    [No. 252,
    September Term, 1974.]

      Decided March 12, 1975.

    The cause was argued before Powers, Davidson and Moore, JJ.

      James J. Cromwell, with whom were Clark & Cromwell on the brief, for appellants.

      Ivan J. Shefferman, with whom was Glenn M. Cooper on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

Julian M. Seidel and Saul H. Bernstein, as general partners of Westlake Associates Limited Partnership, filed a bill of complaint in the Circuit Court for Montgomery County to enjoin William G. Clark and James J. Cromwell, trustees, from proceeding with foreclosure of a deed of trust on real estate owned by the partnership.

Sale in the foreclosure proceeding was advertised for 18 April 1974. On 10 April the complaint was filed, and an ex parte injunction was entered, to expire on 17 April unless extended. A hearing was held on 16 April 1974 before Judge Ralph G. Shure. The injunction was extended, and on 26 April Judge Shure filed a memorandum opinion, accompanied by a final order enjoining the foreclosure sale. The trustees appealed.

No testimony was taken, but the facts which establish the basis for the legal interpretation on which the case turns are undisputed. We take them from the complaint, the answer, including exhibits to both, and the chancellor’s memorandum, which reflects stipulations agreed to by the parties.

On 10 February 1973 Westlake purchased from another limited partnership a parcel of 2.9 acres of land in Montgomery County. As a part of the settlement Westlake gave the sellers a promissory note for $200,000.00, secured by a deed of trust on the property. The note contained the following promise to pay:

“FOR VALUE RECEIVED, the undersigned promise to pay to the order of LAKEVIEW APARTMENTS LIMITED PARTNERSHIP the sum of TWO HUNDRED THOUSAND and 00/100 DOLLARS ($200,000.00), with interest at the rate of seven per centum (7%) per annum; said principal and interest payable interest only, semi-annually, with the first payment to be due and payable six (6) months from the date hereof. Principal curtailments shall be made in three (3) equal annua! and consecutive installments with the first installment commencing on the 10th day of February 1975.”

After an acceleration clause which provided for a grace period of 10 days after receipt of written notice to correct any default in the payment or terms of the note or the deed of trust, the note contained this provision:

“IN the event a moratorium, or other governmental action, occurs or exists at or subsequent to the date of this note preventing or in any manner restricting sanitary sewer tap-in and connection to all or any portion of the land described in the Deed oí Trust securing this within note, adequate to properly service all improvements contemplated for erection thereon, then and in such event, interest on the note shall accrue during any such period of moratorium or other action; except that all installments of principal required to be paid hereunder shall be extended for the period of such moratorium or other action; except that in no event shall any of the foregoing extensions exceed a period of two (2) years.”

The deed of trust accurately recited the terms of the note it secured, including the acceleration danse and the moratorium clause we have set out above. The deed of trust contained a further clause providing for sale upon default. That clause said, in part:

" * * * upon any default or failure being made in the payment of said note or any installment of principal or interest thereon, * * * the trustee * * * shall have the power * * * to sell * * * the said described land and premises at public auction * * * and from the proceeds of said sale * * * to pay whatever may then remain unpaid of said note whether the same shall be due or not, and the interest thereon to oíate of payment, it being agreed that said note shall, upon such sale being made before the maturity of said note, be and become immediately due and payable at the election of the holder * * *.”

The pleadings, exhibits, and stipulations show that a sewer moratorium did in fact exist when the note was made, and has remained in effect. The facts also permit an inference, which is not rebutted, that the first semi-annual interest payment was made. An advance notice of the second interest payment, due on 10 February 1974, was sent to the makers of the note. When the due date passed and payment was not made, a notice of default was sent. The makers responded, referring to the sewer moratorium, and explained:

“ * * * we are taking the position that interest need not be paid at this time but that it shall continue to accrue in accordance with the terms of the promissory note.”

More than 10 days after that letter, the noteholders exercised their option to accelerate, and notified Westlake that the entire balance and all accrued interest on the note had become due and payable, and that foreclosure proceedings would be instituted.

The parties thus placed in sharp focus the single question in the case: did the extension of time for making payments called for in the note apply to payments of interest as well as to payments of principal?

Had the parties invoked the jurisdiction of the court to declare their rights under the note and deed of trust, Code, Courts Article, §§ 3-401 to 3-415, they might have avoided risking the consequences of default. The makers of the note chose instead to stand or fall on their own interpretation of their obligation to pay.

We hold that the obligation to make the payments of interest as provided in the note was not extended by the existence of the sewer moratorium, that the note was in default when the makers declined to pay the interest due on 10 February 1974, and failed to correct the default before the expiration of the 10 day grace period after receipt of written notice, and that the trustees were entitled to foreclose the deed of trust.

No difficulty appears at present about the terms for payment of the principal of the note. The promise was to pay one third of the principal on 10 February 1975, one third one year later, and one third two years later. This promise was qualified by the moratorium clause of the note, which extended the time for payment of the installments of principal for the period of the moratorium, but not to exceed two years. These principal payments were referred to as curtailments, or installments, as is appropriate in describing periodic reductions of an existing debt.

Interest, on the other hand, was required by the promise in the note to be paid semi-annually, with the first payment to be due and payable six months from the date of the note. The part of the moratorium provision which extends the time for payment of installments of principal is the final clause. That clause is separated from the rest of the provision by a semicolon, and is introduced by the word “except”. Before it expresses the exception applying to installments of principal, the provision states that “interest on the note shall accrue during any such period of moratorium”.

The makers of the note contended below, and the chancellor agreed, that the provision that “interest on the note shall accrue during any such period of moratorium” meant only that interest should continue to be earned. They then enlarged the exception, that installments of principal shall be extended for the period of such moratorium, to mean that not only installments of principal but also payments of interest shall be extended.

We cannot find that meaning in the agreement of the parties. The decision below and the contentions here revolve around the meaning of the word “accrue”. We have examined the cited authorities that apply a meaning for the word. We can conclude only that the word “accrue” has no fixed meaning and that what it means in any use depends upon the context and the intent.

Perhaps the best expression is found in Spaeth v. Hallam, 300 N. W. 600 (Minn. 1941), in which the Court was considering whether a tax on real estate, allocated between a seller and a buyer, was, as to the buyer, a capital expenditure or a current expense. The Court said, at 601:

“It is therefore essential to determine when a real estate tax accrues, not only in the sense of being secured by a lien in favor of the state, but also in the sense of becoming a liquidated, fixed, and payable demand.
“The French and Latin origins of the word ‘accrue’ and its derivatives justify generally the idea that anything accrues when it attaches itself to something else. In that sense ‘accrual’ is synonymous with ‘accretion.’ But the word and its derivatives are anything but words of legal art. In general and legal usage they have a variety of meanings. There is hence need in the process of interpretation for resort to context and, in the case of statute or contract, to declared purpose.”

Somewhat more at length, the Supreme Court of Georgia said, in Hartsfield Co. v. Shoaf, 191 S. E. 693 (Ga. 1937), at 695:

“The verb ‘accrue’ is derived from the Latin ‘ad’ and ‘creso,’ to grow to; and its several parts, ‘accrue,’ ‘accrued,’ and ‘accruing,’ in their generally accepted sense are used to denote something which is to be added to or attached to something else. 1 C.J.S., Accrue, p. 759; Johnson v. Humboldt Ins. Co., 91 Ill. 92, 95, 33 Am. Rep. 47, 49. ‘In the past tense, “accrued” is used in the sense of due and payable; vested.’ 1 C.J.S., Accrue, p. 761; Dictionary of Words and Phrases (English) 11. Webster defines the word ‘accrue’ as (1) ‘to increase; to augment, (2) to come to by way of increase; to arise or spring as a growth or result; to be added as an increase, profit, or damage.’ Blaek defines the word ‘accruing’ as meaning ‘inchoate; in process of maturing; that which may or will ripen into a vested right, an available demand, or an existing cause of action.’ The meaning of the word is dependent somewhat on the facts of each case and the objects to be accomplished either by the statute or contract in which the word is used.”

Less applicable, we believe, but referred to by the chancellor and cited here by appellees, is a construction of the word “accruing”, by the Supreme Court of Pennsylvania in Gross v. Partenheimer, 28 A. 370 (Pa. 1894). The question involved the payment of interest on a mortgage, which was a lien on property transferred from a buyer to a seller, and involved both interest whieh was overdue and interest which was currently accruing. The Court said, at 371:

“As generally understood, ‘accruing’ interest means running or accumulating interest, as distinguished from accrued or matured interest. When we speak of interest which is from day to day accumulating on the principal debt, but which is not yet due and payable, we call it accruing interest. When we refer to interest heretofore payable, but still remaining unpaid, we speak of it as overdue interest, arrears of interest, or interest in arrear, just as we speak of rent in arrear. We are therefore of opinion that the words ‘accruing interest’ do not refer to, nor in any manner embrace any part of, the six months’ interest which was then overdue and unpaid.”

In a United State District Court case entitled In Re Pincus Clothing Co., 5 F. Supp. 365 (D.C. Ala. 1933), the District judge considered the effect in a bankruptcy case of a landlord’s lien under state law for “unpaid rent accrued and which shall accrue within six months”. The Court said, at 367:

“ * * * it appears that the meaning of the word ‘accrue’ is dependent somewhat on the facts of each case and the objects to be accomplished either by the statute or contract in which the word is used.
“So when the statute says that where the tenant is adjudged bankrupt the lien shall, as against the trustee, attach only for unpaid rent accrued and which shall accrue within six months from the day of adjudication, then the contemplation of the statute was that it was rent which became due and payable within that time.”

We have examined Ewbank v. United, States, 50 F. 2d 409 (7th Cir. 1931), cited by the chancellor below, but we find no enlightenment there.

The law concerning interest on money owed was clearly stated by the Court of Appeals in Owens v. Graetzel, 146 Md. 361, 126 A. 224 (1924). The Court said, at 368:

“The rule is that interest accumulates from day to day but is not payable until the date upon which the principal becomes due and payable, unless there is a different contract between the parties as to the payment of interest.”

And the Court further said, at 369:

“The ordinary and usual time of paying interest is at the expiration of definite fixed periods during the continuance of the loan. This usage or custom is based upon the theory that payment of interest is in the nature of a sum of money given as compensation for the use of the principal sum for the definite period specified, and is in this respect analogous to the payment of rent or the hire of personal property. If there is no agreement to the contrary, rent is payable at the expiration of a definite period of occupancy by the tenant; hire for the use of personal property is payable after the property has been so used; and interest for the use of money is payable at the certain specified times after the borrower has had the use of the principal for the specific time for which interest is charged.”

Neither side contends here that the language of their agreements is ambiguous. Neither offered testimony or evidence below to explain any asserted ambiguity. The chancellor noted this when he said:

“We have here no testimony presented by either side in any attempt to clear up an alleged ambiguity, if in fact the language concerning ‘interest’ was susceptible of more than one construction * * * /’

The chancellor felt that the “sewer moratorium was of principal concern” to the parties, and felt that it therefore followed that delay in payment was logical, since nothing could be done to make the property income producing until sewer was available. We agree with the reasoning, but not with the extent to which it was applied. It would, we think, be more logical, and more in accord with widely recognized business practice, to defer the obligation to pay the debt, while at the same time requiring payment of interest, or “rent”, for the debt foreborne.

If the parties intended that interest merely be “earned”, but not become payable, during a moratorium, their words were superfluous. That would have happened in any event. When the parties provided that interest “shall accrue”, and provided as an exception that installments of principal shall be extended, they were emphasizing the contrast in the treatment of the two kinds of obligation. We hold that “shall accrue”, as applied to interest, meant that interest shall be earned and paid as provided in the note, even though payments of principal may be deferred.

The note was in default, the entire obligation was accelerated, the trustees had a right to foreclose, and it was error to enjoin the sale. We shall reverse the order. The trustees will then be free to proceed with foreclosure.

Order of 26 April 197U reversed.

Appellees to pay costs.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    THOMAS LIGHTFOOT v. STATE OF MARYLAND
    [No. 368,
    September Term, 1974.]

      Decided March 13, 1975.

    The cause was argued before Gilbert, Menchine and Moore, JJ.
    Submitted on brief by H. George Meredith, Jr., Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and
      William, Giuffre, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

On January 20, 1972 close to 8:30 p.m., an armed robbery occurred at the Speedy Clean Laundromat located at Gwynn Oak and Liberty Heights Avenues in Baltimore City. The crime was perpetrated by three tall young men, all armed. The net proceeds of their unlawful enterprise came to $90.

Thereafter, the appellant, Thomas Lightfoot, Daniel Lightfoot and Robert Lightfoot (apparently his brothers) were charged in a seven count indictment with (1) robbery with a dangerous and deadly weapon, (2) attempted robbery with a dangerous and deadly weapon, (3) robbery, (4) assault with intent to rob, (5) assault, (6) larceny and (7) receiving. At the time of his arrest and search, appellant was found to have on his person a .25 caliber automatic pistol. He was accordingly the subject of a separate three count indictment charging (1) carrying a concealed weapon, (2) rogue and vagabond and (3) carrying a weapon openly with intent to injure. In a jury trial in the Criminal Court of Baltimore (Sklar, J. presiding), appellant was convicted of attempted robbery with a dangerous and deadly weapon, for which he was sentenced to a term of fifteen years, and of carrying a concealed weapon, for which he received a concurrent term of two years. On this appeal, he assails the sufficiency of the evidence on two specific grounds:

(a) Since the State’s evidence established a consummated armed robbery, he could not be convicted of attempted armed robbery; and

(b) the eyewitness identifications of appellant were so inconsistent as to afford insufficient basis for a conviction.

Appellant did not dispute the occurrence of the incident but denied the corpus delicti of attempted robbery and his criminal agency, placing reliance upon an alibi defense — that he was at the home of one of his other brothers all evening until they all went to a local bar for a “soft drink” and some cigarettes, shortly before he was apprehended there by the police.

The State produced the manager of the laundromat, Beulah .Dorsey, 58; the security officer on the premises, Jimmy Powell, 57; a customer, William Jackson, 17; and Officer James Birch of the K-9 Squad who made the arrest of appellant. From their testimony the jury could have found that the armed trio entered the laundromat, with weapons concealed, and walked toward the telephone in the rear as if they intended to use it. When they just stood there for a relatively long interval, the manager asked what they wanted but received no response. One of the men did thereafter inquire about dry cleaning his coat. Mrs. Dorsey went back into the office and when she later emerged, one of the men approached her and “poked a gun in my stomach and I went to the cash register; I knew what he wanted.” She gave him $77 from the register and $13 from her own pocketbook. The two customers, the security guard and the manager were then herded into a bathroom in the rear and admonished to remain there for fifteen minutes.

Over the police radio some distance away, Officer Birch listened to the report of the robbery and some three hours later he observed three subjects in his area, one of whom matched the description of one of the individuals involved in the laundromat holdup. After observing the men enter Lucky Lou’s Tavern, Officer Birch requested a detailed description of the suspects as well as additional police assistance. He subsequently entered the tavern and beckoned appellant outside. When appellant responded to the officer’s request for identification, Officer Birch noticed a bulge in his pocket. He searched him and found the automatic pistol. Appellant was then placed under arrest. At the trial, he testified that he was carrying the weapon for protection because his life had been threatened.

Mrs. Dorsey made an in-court identification of appellant as one of the three robbers but not the one who had held a pistol to her person. The customer, William Jackson, a high school senior who was reading a book in the laundromat while waiting for his football uniform to dry, also identified appellant as one of the three gunmen and as the one who “was standing there and told us to keep quiet and no one would get hurt.” The security officer, Mr. Powell, generally confirmed the testimony of the other witnesses concerning the corpus delicti He testified that appellant “looked like the fellow that had the gun on Beulah,” but also emphasized that, obedient to a command from one of the men to keep his eyes down, he had made no effort to observe the faces of the intruders. Challenged on cross-examination concerning her prior identification of appellant, Beulah Dorsey testified:

“Mister, I will never forget them mens because these mens cost me hospital bills and doctors’ bills. My nerves have been bad ever since.”

Questioned further, she responded as follows:

“Q. Well you were looking at him (the man holding the gun on her stomach) and no one else, weren’t you?
“A. Mister, they stayed there long enough for me to get a look at all three of them.”

I

The second contention contained in appellant’s brief — which we address first in sequence — is that the eyewitness identification of appellant was factually insufficient to sustain a conviction of attempted armed robbery. Upon our independent review of the record, we deem it clearly established that the witnesses positively identified the appellant as a participant in the robbery. Although there were some inconsistencies in the description of his hair and clothing and whether or not he was wearing glasses, both the manager and the youthful customer clearly identified Lightfoot as the one who stood armed watch over the customers and the security officer; and, of course, the security officer himself placed the appellant at the scene.

The weight of the evidence and the credibility of the witnesses are for the trier of facts to determine, Gunther v. State, 4 Md. App. 181, 241 A. 2d 907 (1968); and the positive identification of a single eyewitness, if believed by the trier of facts, is ample evidence to sustain a conviction. Montague v. State, 3 Md. App. 66, 237 A. 2d 816 (1968).

We find that there was abundant evidence from which the jury could have been convinced beyond a reasonable doubt that the crime of armed robbery had been committed and that the appellant was a principal, at least in the second degree. Williams and McClelland v. State, 5 Md. App. 450, 247 A. 2d 731 (1968); Agresti v. State, 2 Md. App. 278, 234 A. 2d 284 (1967). As Chief Judge Orth stated for the Court in Agresti:

“Principals in the first degree are those who commit the deed as perpetrating actors, either by their own hand or by the hand of an innocent agent. Under common law, persons present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it, are principals in the second degree, provided there is a guilty principal in the first degree.” p. 280.

Appellant’s assignment of error based upon alleged insufficiency of identification must therefore be rejected.

II

Under appellant’s first assignment of error, the narrow question for decision is whether the commission of an armed robbery in which appellant participated as a principal in the first or second degree, precluded his conviction under the second count of the indictment charging attempted armed robbery. It is appellant’s position, relying upon the decisions of this Court in Boone v. State, 2 Md. App. 80, 233 A. 2d 476 (1967), Wiggins v. State, 8 Md. App. 598, 261 A. 2d 503 (1970) and McDuffie v. State, 12 Md. App. 264, 278 A. 2d 307 (1971), that under Maryland law an accused may not be convicted of an attempt when the evidence has established the consummation of the crime. Appellant’s reliance upon the cases cited is misplaced. We hold contrary to his position.

Preliminarily, we observe that in Maryland, except as may be otherwise provided by statute, an attempt to commit a crime of any grade, whether common law or statutory, is a common-law misdemeanor. Hochheimer, Crimes and Criminal Procedure, § 515. Fisher v. State, 1 Md. App. 505, 231 A. 2d 720 (1967). A sentence for a common-law crime for which no penalty is fixed is not invalid unless it constitutes cruel or unusual punishment; and in the case of an attempt to commit an offense the sentence is not necessarily controlled by the statutory penalty for the completed offense. Tillett v. Warden, 215 Md. 596, 135 A. 2d 629 (1957). As previously noted, the punishment prescribed by the statute, Md. Code, Art. 27, § 488, is the same for both armed robbery and attempted armed robbery. The question whether a finding of not guilty of armed robbery renders invalid a verdict of guilt of the attempt has not, it will be seen, been answered by Boone, Wiggins or McDuffie nor, indeed by any other decided case in this Court or the Court of Appeals.

In Boone v. State, supra, this Court was dealing with inconsistent jury verdicts whereby the appellant was found guilty of both the consummated crime and armed robbery and the attempt to perpetrate the crime. We held that although the better practice under the doctrine of Heinze v. State, 184 Md. 613, 617-19, 42 A. 2d 128 (1945) would have been for the trial judge to return the jurors to the jury room “to correct what was patently an inconsistency in the verdict announced by them,” the question was not properly preserved in the absence of a motion in arrest of judgment or a request for correction of the record. We also pointed out, however, that since only one sentence was imposed and it was within the penalty prescribed by Article 27, § 488 for either of the offenses, there was no prejudice to the appellant.

Defining an attempt in Boone, we stated that it “consists of an intent to commit [a crime], the performance of some act towards its commission and the failure to consummate its commission.” (p. 114). As obiter dictum in Boone we also stated that:

“A failure to consummate the crime is as much an essential element of an attempt as the intent and the performance of an overt act towards its commission. Evidence that a crime has been committed will not sustain a verdict on an attempt to commit it because the essential element of interception, or prevention of execution is lacking. Consummation of the crime can take the behavior out of the definition of an ‘attempt’. See Clark & Marshall, Law on Crimes, supra, Sec. 4.14, citing People v. Lardner, 300 Ill. 264, 267, 133 N. E. 375, 19 A.L.R. 721 (1921), where a conviction for an ‘attempt to commit larceny’ was reversed upon facts which showed the consummation of the larceny.” (Emphasis added.)

The ratio decidendi of Boone, we re-emphasize, is that having been convicted of committing the robbery with a deadly weapon, the appellant could not also be found guilty under the count charging attempted robbery. See, Jones v. State, 3 Md. App. 608 at p. 613, 240 A. 2d 347 (1968).

In Wiggins v. State, supra, upon which appellant also relies, the question before us was the sufficiency of the evidence to establish that a homicide committed by appellant was murder in the first degree. We observed at the outset that if the evidence was sufficient to establish that the appellant committed murder in the perpetration of a robbery or in an attempt to perpetrate a robbery, the verdict was proper. We there merely cited Boone in support of our definition of an attempt as “an act done in pursuance of a criminal intent falling short of the actual commission of the crime, coupled, at least, with the apparent ability to commit the crime intended.” (p. 604).

As the opinion of Judge Moylan in McDuffie v. State, supra, makes abundantly clear, we were there confronted with an issue similar to that presented in Boone. In McDuffie there were seven counts of an indictment charging robbery with a dangerous and deadly weapon and lesser offenses, as in the case at bar. The jury rendered a verdict of guilty as to each count. Appellant moved for a mistrial on the ground that convictions of attempted robbery with a deadly weapon under the second count and of attempted robbery under the fifth count were inconsistent. The Court discharged the jury and directed the clerk to enter findings of not guilty on all but the first count.

Explicitly stating that in Boone, supra, “this Court was dealing with inconsistent jury verdicts” Judge Moylan pointed out that while we relied there primarily on waiver we also held there was no prejudice to the appellant. We concluded in McDuffie that although, unquestionably, it would have been better practice for the Court to have resubmitted the inconsistent verdicts to the jury, we could not say that the trial judge committed prejudicial error when he directed the clerk to enter findings of not guilty on all counts but the first count. We also adverted to the cases of Tender v. State, 2 Md. App. 692, 237 A. 2d 65 (1968) and Price v. State, 3 Md. App. 155, 238 A. 2d 275 (1968) where inconsistent verdicts were reached by trial judges sitting without juries. With respect to these cases McDuffie observes (p. 271):

“In each case, there was a verdict finding guilt for the consummated crime of armed robbery and also for the attempt to commit that crime. In neither case did we permit ourselves to be boxed into the logical absurdity of holding that the fact-finder had somehow concluded, beyond a reasonable doubt, both that the defendant had completed the crime and also that he had failed to complete the crime. In each case, recognizing the error for what it was, we simply reversed the judgment of guilt as to the count charging the attempt.”

In the instant appeal there also lurks a “logical absurdity” in that, as the District of Columbia Court of Appeals found in United States v. Fleming, 215 A. 2d 839 (1966), we are asked to adopt a holding which would create the anomalous situation of a defendant going free “not because he was innocent, but for the very strange reason that he was too guilty.”

The predicate for such an anomalous result is the strict analytical view that failure to commit the crime is an indispensable element of criminal attempt. Thus in the landmark case of People v. Lardner, 300 Ill. 264, 133 N. E. 375 (1921), on an appeal from a conviction of an attempt to commit larceny under an indictment which charged larceny, it was argued that the evidence in the trial tended to prove the completed offense and therefore there could be no conviction for an attempt to commit a crime resulting in a failure. An Illinois statute under which appellant was found guilty imposed a penalty upon “whoever attempts to commit any offense prohibited by law, and does any act towards it but fails, or is intercepted or prevented in its execution.” (Emphasis added.) Upholding this contention the Supreme Court of Illinois ruled:

“Evidence that a crime has been committed will not sustain a verdict for an attempt to commit it, because the essential element of interception or prevention of execution is lacking, ¡citations omitted.] When an -indictment charges an offense which includes within it a lesser offense, the defendant, though acquitted of the higher offense, may be convicted of the lesser; but that rule cannot be applied to an attempt defined by the statute, because cm essential element of the attempt is a failure to consummate the crime. The statute only includes a case where there is a direct, ineffectual act toward the commission of crime. If the evidence for the people proved the defendant guilty of the crime of larceny, he could not be convicted for an attempt which failed.” (Emphasis added.)

This, however, is no longer the law in Illinois. People v. Wallace, 812 N.E.2d 263 (Ill. 1974). In 1961, the present Illinois Criminal Code was adopted wherein “attempt” was VreCined as follows, deleting the element of failure:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which cm mobiles a, oubstaaAal step toward the commission of that offense.” Ill.Rev.Stat.1963, ch. 38, par.8-4(a).

in Wallace, the Supreme Court of Illinois affirmed a conviction of attempted bribery, holding that even if the evidence might have established completion of the offense, a conviction for the lesser included offense of attempt was permissible. The Court found, within “Committee Commentary” to the new Criminal Code a “legislative Intent to abrogate the necessity that the criminal act fail as a prerequisite to prosecution for attempt.” Accordingly the Court concluded as follows, citing United States v. Fleming, supra:

“We are of the opinion that even if the evidence presented might establish the completion of the offense, as here, conviction for the lesser included offense of attempt is permissible.”

Other jurisdictions, notably Michigan, had earlier rejected the original Illinois rule. In a leading case for the contrary view, People v. Baxter, 222 N. W. 149 (Mich. 1928), appellant had been charged in one count with bribery and in another count (involving the same facts) with attempt to bribe. The jury returned a verdict of conviction of attempt. Affirming this conviction, the Supreme Court of Michigan held:

“Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can be no conviction of an attempt to commit a felony if the evidence establishes consummation of the felony. This is the rule in Illinois. People v. Lardner, (1921), 300 Ill. 264 (133 N.E. 375, 19 A.L.R. 721). But the rule is not general, and does not prevail in this jurisdiction. If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense. People v. Miller, (1893), 96 Mich. 119 [55 N. W. 675]; People v. Blanchard (1904), 136 Mich. 146 [98 N. W. 983], Such a verdict may he illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot he heard to say that he has suffered injury. ” (Emphasis added.)

See also State v. Mahoney, 97 N. W. 1089 (Iowa 1904) and State v. Fox, 159 N.W.2d 492 (Iowa 1968); People v. Miller, 184 N.W.2d 286 (Mich. 1971); State v. McCoy, 277 A. 2d 240 (N.J. 1971), citing State v. Mathis, 221 A. 2d 529 (N.J. 1966); Nielson v. State, 437 S.W.2d 862 (Texas 1969); Crump v. State, 287 N.E.2d 342 (Ind. 1972).

In Crump v. State, supra, the Supreme Court of Indiana overruled a contention that the crime of attempted arson is not a lesser included offense of the crime of first degree arson, rejecting the rule of People v. Lardner, supra, and adopting the rule of People v. Baxter, supra, in the following language:

“Reasoning such as this was adopted in People v. Lardner (1921), 300 Ill. 264, 133 N.E. 375, wherein the court reversed a conviction for attempted larceny where the indictment charged the defendant with the crime of larceny. However, the opposite result was reached in People v. Baxter (1928), 245 Mich. 229, 222 N.W. 149, where the court expressly rejected the Illinois rule. We are of the opinion that the rule set forth in Baxter is more logical. It should make no difference whether the criminal conduct is successful or unsuccessful when determining an included offense. The conduct is the same in both cases; the actor’s intent is the same in both cases.”

It is thus seen that Lardner derived its rationale from the prior statutory definition of attempt which included a failure of completion and that the split of jurisdiction represented by Baxter was based upon a rule held to be more “logical.”

But there are, to be sure, historical origins for the notion that failure to commit a crime is an indispensable element of criminal attempt. See, Perkins, Criminal Law, 2nd Ed., p. 552, et seq. 1969 and see Arnold, Criminal Attempts, 40 Yale Law Journal 53. Professor Perkins, in his penetrating analysis of “Attempt and Kindred Problems” in the work above cited points out that under the English common law the procedure for the trial of a misdemeanor was so different from that for the trial of a felony as to preclude a joinder of the two in the same indictment. As Judge Prescott, later Chief Judge, pointed out in Veney v. State, 227 Md. 608, 177 A. 2d 883 (1961) these differences included the right to exercise challenges of jurors, the privilege of counsel and the substantive difference that a conviction of felony entailed a forfeiture of property to the Crown.

One of the consequences of such differences, as Professor Perkins observed, was the development of a rule that if the same act resulted in both a misdemeanor and a felony, the former was merged in the latter. Furthermore, with respect to attempts, since an attempt to commit any indictable offense was punishable as a misdemeanor at common law, it followed that if an attempt to commit a felony was successful the attempt was merged in the felony and there could be no conviction of the misdemeanor. This, the author points out, was merely an application of the general doctrine of merger and was not based upon any notion that the law of criminal attempt requires failure. In sum, Perkins concludes:

“Hence, under the English common law, one being tried for felony could not be convicted of an attempt to commit the offense charged. This was not due to any peculiarity in the law of attempt, nor was it dependent in any way upon the proof in the particular case. It was merely an application of the general rule of procedure which did not permit conviction of a misdemeanor in a felony trial.” (p. 555)

And further:

“Peculiarities in the criminal procedure in England in the early days may have given adequate support, at that time, for the rule that there could be no conviction of misdemeanor under an indictment for felony. However that may be, the procedure in this country does not do so, and the prevailing view here is that such a conviction may be upheld.” (p. 555-6)

The historical background of this issue, particularly as related in Perkins, Criminal Attempt and Related Problems, 2 U.C.L.A. Law Rev. 319 (1955), was carefully considered by the District of Columbia Court of Appeals in United States v. Fleming, 215 A. 2d 839 (1966), supra, where the defendant was charged with attempted sodomy and the government’s proof at trial established a completed act. There, a general attempt statute provided:

“Whoever shall attempt to commit any crime, which attempt is not otherwise made punishable by this title, shall be punished by a fine not exceeding one thousand dollars or by imprisonment for not more than one year, or both.” D.C. Code 1961, § 22-103.

Rejecting appellant’s contention that the evidence of a completed act mandated an acquittal on the charge of attempt, Chief Judge Hood stated for the Court:

“Our conclusion is that the rule that a defendant charged with an attempt must be acquitted if shown to have committed the full offense has today no reasonable basis and should be rejected. We agree with the following statement from People v. Baxter, 245 Mich. 229, 222 N. W. 149, 150 (1928): ‘If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt though the evidence shows a completed offense.’ ”

The distillation of the aforegoing authorities is, we think, this: that under Maryland law the element of failure remains an essential part of criminal attempt; but it is not an essential element of attempt for all purposes. There is no general statutory definition of criminal attempt as in the District of Columbia and other jurisdictions; and the common law definition of the term under the decided cases in Maryland still includes the element of failure to commit the crime. However, upon the basis of reason and authority, it is our conclusion that where an accused is charged with both the crime and the attempt to commit it and the evidence has established that the crime was in fact committed, he may be acquitted of the crime and yet convicted of the attempt. No Maryland precedent requires a different result.

The final two issues presented, the legality of the arrest and competency of counsel, were not briefed nor argued and are not before us. Hyde v. State, 228 Md. 209, 179 A. 2d 421 (1961), cert. denied 372 U. S. 945. Alleged inadequacy of counsel was not raised below and therefore would be reviewable only in post conviction proceedings.

Judgments affirmed.

      . This claim would apply, of course, only to the conviction of attempted armed robbery.

      . The ultimate fate of appellant’s companions in the tavern and his co-defendants, is not disclosed in the record.

      . Maryland Code provisions with respect to attempts include those which define a particular attempt as a statutory crime and those which merely prescribe the punishment for an attempt. Thus, under the Vehicle Laws every person who commits or attempts to commit any act declared in Art. 66V2 to be a crime, shall be guilty of the offense. § 16-101. Under the Sabotage Prevention Law, any person attempting to commit the crimes defined is guilty of a felony and upon conviction is liable to one-half the punishment prescribed for the completed offense. Code, Art. 27, § 538. The penalty for willfully and maliciously attempting to set fire to a building is a sentence of not more than two years or a fine not to exceed $1000. Code, Art. 27, § 10. Again, the Code prescribes, as punishment for an attempt to poison, confinement in the penitentiary for not less than two years nor more than ten years. Art. 27, § 450. Under the Controlled Dangerous Substance law, any person who attempts to commit any offense defined therein may be punished by imprisonment or fine, or both, up to the maximum punishment prescribed for the offense itself. Art. 27, § 290. The punishment for attempting to rob with a dangerous and deadly weapon is the same as for robbery with a deadly weapon, namely: restitution and imprisonment for not more than twenty years. Art. 27, § 488. Murder which occurs in the perpetration of or an attempt to perpetrate rape, sodomy, mayhem, robbery, burglary or kidnapping and certain storehouse breaking and housebreaking offenses, is murder in the first degree. Code, Art. 27, § 410.

      . Citing State of Connecticut v. Shepard, 7 Conn. 54 (1828).

      . The common law doctrine of merger no longer exists in Maryland. Tender v. State, 2 Md. App. 692, 237 A. 2d 65 (1968), supra. By statute, Code, Art. 27, § 607, any offense which is a misdemeanor at common law and which may have been made a felony by statute is not merged in the felony and the indictment may contain counts for the felony and also for the misdemeanor. A more modern concept of merger of offenses does exist. Williams v. State, 205 Md. 470, 109 A. 2d 89 (1954); Bennett v. State, 229 Md. 208, 182 A. 2d 815 (1962). As Chief Judge Orth stated in Tender v. State, supra, the true test under the modern concept of merger of offenses is whether one crime necessarily involves the other. Cf. Rule 31 (c) Federal Rules of Criminal Procedure: “The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.”

      . Arnold, op. cit. supra, p. 73, n. 60.


author:
Menchine, J.,
      Moore, J.,

text:
    RICHARD JERRIMIAH PONDS, III v. STATE OF MARYLAND
    [No. 480,
    September Term, 1974.]

      Decided March 13, 1975.

      The cause was argued before Menchine, Moore, Lowe and Melvin,  JJ.

      Stephen R. Creyke, with whom were Williams, Haynes & Creyke on the brief, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County and Darrel Longest, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court. Moore, J., dissents and filed a dissenting opinion at page 177 infra.

Richard Jerrimiah Ponds, III, in a bench trial in the Circuit Court for Montgomery County, was found guilty of nighttime breaking and entering of a dwelling with intent to steal personal goods of another. (Article 27, § 30) He was sentenced to a term of 6 years upon conditions authorized by Article 27, § 641A.

A written stipulation of facts, clearly establishing the corpus delicti, was made. The case then proceeded on the issue of criminal agency. The State offered a confession by the accused to establish criminal agency. The appellant contends that the confession was not freely and voluntarily given and was improperly admitted in evidence. His contention essentially is based upon the fact that he testified that specific promises by police officer McFee had been made without specific rebuttal by the State.

Relying heavily upon Streams v. State, 238 Md. 278, 208 A. 2d 614, appellant in substance suggests that its teaching is that general disclaimers by police of threats, force, promises or inducements will not suffice to negate specific charges of particular promises, threats, inducements, or applications of force made by the accused. The contention overstates the teaching of Streams. In Streams, one police officer had testified that “he had done all of the interrogation on Wednesday and Friday” and that there was no mistreatment, no threats, and no inducements to the accused by him or by anyone in his presence. The accused, however, thereafter testified that other officers had made promises and offered inducements to him at times other than those described by the witness. Under those circumstances the Court in Streams said at 281-82 [615]:

“We think the State did not meet its burden of showing that the confessions were freely and voluntarily made and were not products of promises or threats. Sergeant Tabeling’s testimony that during all of the interrogations he and Officer Butler were the only officers present and that neither he nor anyone in his presence made any threats or promises to get Streams to give any information, and similarly no - immunity or inducements were offered or held out to him, might have been enough if there were no later uncontradicted contentions to the contrary, and if Streams had not admittedly been in the custody of other officers who, he says, made statements to him and questioned him. We do not agree with the appellant’s contention that each person who has casual contact with the accused while he is detained by the police or who is present during the interrogations that lead to a confession must testify as to its voluntariness in order for the State to meet its burden. Bagley v. State, 232 Md. 86; Glaros v. State, 223 Md. 272; Glover v. State, 202 Md. 522; Cooper v. State, 205 Md. 162; Jackson v. State, 209 Md. 390. It may be enough if one credible witness can testify from, personal observation that nothing was said or done prior to and during the obtention of the confession to mar or destroy its voluntary character and there is no claim by the prisoner of improper treatment, by others than those covered by such testimony. ” (Italics supplied)

The later case of Price v. State, 261 Md. 573, 277 A. 2d 256, wherein the accused alleged that he had been told that “if you give a statement it won’t do you no harm in the courtroom, something like that,” and where the interrogating officers generally had denied that promises or inducements had been made, the Court of Appeals said at 582 [261]:

“ ‘We think the appellant’s testimony * * * in view of its qualifications * * * too general, too lacking in specificity and too uncertainly stated to provide the foundation for an allegation of an illegal inducement requiring the State specifically to controvert it as part of its proof of voluntariness.’ Cf. Streams v. State, 238 Md. 278, 281, 208 A. 2d 614 (1965).
“We think the general denials of inducement by the police officers involved in the interrogation, together with Captain Cadden’s testimony that he had read and explained the Miranda warnings to the accused prior to interrogation, one of which warnings specifically provided that anything appellant said ‘may be used against him in a court of law,’ was sufficient to meet the inducement challenge.”

The decision in Price makes plain that under some circumstances general, as distinguished from specific, denials of inducement will suffice to meet the inducement challenge.

In the case of Gill v. State, 265 Md. 350, 289 A. 2d 575, on the other hand, the circumstances were such that denial of specific contentions by the accused was essential to a determination of the basic issue. In Gill, the accused claimed inducements had been made to him when he was alone in the company of one Hyson. It was uncontradicted that Gill had in fact been in the latter’s sole presence during the course of interrogation prior to confession. The Court of Appeals pointed out at 354 [577]:

“ * * * that specific person must rebut the allegations of coercion as no one else is qualified to do so.”

Thus, since Hyson had not testified, the only evidence was that the alleged promise or inducement had been made.

This Court has pointed out that there is no magic as to when testimony in denial of promises or inducements must be made. In Burks v. State, 1 Md. App. 81, 227 A. 2d 355, where denial of threats, force or inducements had been made before the accused had testified, we said at 84-85 [357]:

“To require the State to re-ask these questions of Corporal Maddox minutes after he had anticipatorily rebutted Burks’ allegations would be a needless gesture. This factor, alone, takes the case at bar out of the holding in Streams.
“There can be no question that the State has the burden of proving that a confession is freely and voluntarily given, without the influence of favor, threat, promise or inducement. Bagley v. State, 232 Md. 86; Abbott v. State, 231 Md. 462; Williams v. State, 231 Md. 83; Bryant v. State, 229 Md. 531. However, we do not construe the decision and opinion in the Streams case to require a finding in this case that the State has failed to meet the burden of proving the voluntariness of Burks’ confession.”

In Harris v. State, 1 Md. App. 318, 229 A. 2d 604, the accused had testified that the police “told him if he signed the statement he could go home, that he would be tried in juvenile court, that he was crying because his back hurt and that one of the officers rubbed his ‘stick’ across the table near appellant’s hand but that it never touched his hand because he kept moving his hand away” (at 323 [606-07]). The police had testified generally “that neither they nor anyone in their presence offered the appellant any immunities or rewards, made him any promises, threatened him or used any force or violence on him and that the statement was free and voluntary” (at 322 [606]). In those circumstances, this Court, citing Streams, supra, said at 323 [607]:

“It may be enough if one credible witness can testify from personal observation that nothing was said or done prior to and during the obtention of a confession to mar or destroy its voluntary character and there is no claim by the prisoner of improper treatment by others than those covered by such testimony.”

We believe, in short, that Streams intended no deviation or departure from the governing rule of law long applied in this State. In Mulligan v. State, 18 Md. App. 588, 598, et seq., 308 A. 2d 418, 424, et seq., we discussed in considerable depth the Supreme Court cases of Jackson v. Denno, 378 U. S. 368, 12 L.Ed.2d 908, and Lego v. Twomey, 404 U. S. 477, 30 L.Ed.2d 618, and pointed out that Maryland long had adhered to the rules of law declared in those decisions. In Mulligan, we pointed out (at 601 [425]), “while Maryland has articulated that the evidence must be prima facie, it has nevertheless, continuously been applying the preponderance of the evidence standard that a confession be freely and voluntarily made before it is admissible.”

It is true, of course, that the Supreme Court in Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694, held custodial interrogation impermissible until the constitutional rights of an accused were protected by the procedures mandated by that decision that the police must follow. See Fowler v. State, 6 Md. App. 651, 253 A. 2d 409, affirmed State v. Fowler, 259 Md. 95, 267 A. 2d 228. In the subject case an “Interrogation Rights and Waiver Form” containing a waiver of the full panoply of Miranda rights was executed by the accused. While appellant testified that he executed the document after rather than before his confession of the Ranier [subject] offense, and that his negative response to the question: “Do you want an attorney? ” was placed upon the document after the confession in the Ranier incident had been made, the police testimony was in direct conflict therewith. The conflict in that evidence was a matter for resolution by the trial court. Mouzon v. State, 9 Md. App. 57, 60, 262 A. 2d 588, 590.

Where there is evidence to support the trial court’s finding that the mandates of Miranda v. Arizona, supra, have been obeyed, the question whether a confession complying therewith is admissible is to be determined under the rule of law restated in Mulligan, supra. This issue of admissibility is to be determined as a matter of law by the trial judge. Where the evidence bearing upon the admissibility of a confession is such that specific charges of force, or threats, or promises in reality have been denied by a credible witness or witnesses, it is immaterial whether such denial is demonstrated by general or specific testimony, or whether it develops in the course of initial or rebuttal testimony.

Of course, in determining whether the court made its decision within the required constitutional framework, we must do so within the rule that when constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record. Brookhart v. Janis, 384 U. S. 1, note 4 at p. 4. Gardner v. State, 10 Md. App. 233, 245, 269 A. 2d 186, 192. In doing so we accord an appropriate and substantial effect to the trial court’s resolution of conflicts in evidence as to the occurrence or nonoccurrence of factual events and happenings. Wiebking, Holt & Wolf v. State, 19 Md. App. 226, 233-34, 310 A. 2d 577, 581-82. The nature of appellate review in such cases carefully was enunciated by Mr. Justice Goldberg in Haynes v. Washington, 373 U. S. 503, 83 S. Ct. 1336, 10 L.Ed.2d 513:

“It is well settled that the duty of constitutional adjudication resting upon this Court requires that the question whether the Due Process Clause of the Fourteenth Amendment has been violated by admission into evidence of a coerced confession be the subject of an independent determination here, see, e.g., Ashcraft v. Tennessee, 322 US 143, 147, 148, 88 L ed 1192, 1195, 1196, 64 S Ct 921; ‘we cannot escape the responsibility of making our own examination of the record,’ Spano v New York, 360 US 315, 316, 3 L ed 2d 1265, 1267, 79 S Ct 1202. While, for purposes of review in this Court, the determination of the trial judge or of the jury will ordinarily be taken to resolve evidentiary conflicts and may be entitled to some weight even with respect to the ultimate conclusion on the crucial issue of voluntariness, we cannot avoid our responsibilities by permitting ourselves to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding.’ Stein v New York, 346 US 156, 181, 97 L ed 1522, 1540, 73 S Ct 1077. As state courts are, in instances such as this, charged with the primary responsibility of protecting basic and essential rights, we accord an appropriate and substantial effect to their resolutions of conflicts in evidence as to the occurrence or nonoccurrence of factual events and happenings. This is particularly apposite because the trial judge and jury are closest to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony.”

We now examine the totality of the attendant circumstances of the subject case. The appellant is a young man of 21 years who had completed high school. He had been arrested at about midnight of August 11, 1972 after his automobile was stopped on Georgia Avenue, in Montgomery County, Maryland. He was taken to a police station in Silver Spring. His father was notified of the arrest.

Police testimony was to the effect that the Miranda waiver form was read to Ponds and was signed at about 12:40 a.m. on August 12, 1972. The dispute on this issue will be demonstrated by the following two questions and answers to the appellant:

“Q You are saying you signed it after you gave your confession?
A Yes, sir.
Q And they say that you signed it before you gave the confession?
A Yes, sir.”

The Alleged Inducements

Appellant:

“Q Would you tell us prior to any statement which you may have given respecting this offense, the Ranier offense, what was said or done in that interrogation room?
A Officer McFee and Officer Staccone brought me in the interrogation room and took my handcuffs off and told me to wait there, and they left for five minutes. When they came back Officer McFee read me my waiver rights form. All through this time I did not know what to do. I kept very quiet. I had been told many time[s] if I were arrested to call a lawyer and I did not know if I should do that or not. I did not know what to do. After Officer McFee finished the waiver rights form he asked me if I wanted to talk to him and I said, T don’t know. I don’t know what to do.’ He said, T will give you some time to think about it,’ and I began thinking about it. I said I did not know what to do and after a period of time he said, ‘If you cooperate,’ I want to get this right, ‘If you show you want to straighten out, if you show you want to do the right thing, then when the commissioner asks us how you acted during the interrogation,’ he said that they would tell him that I was a good person and that I am trying to straighten out.
Q You say commissioner. Do you mean the magistrate?
A Yes.
Q What was his function as you understood it at that time?
A To set my bond.
Q Please continue.
A I still do not know what to do. He said then, he said, ‘Let me show you what I have on you,’ and he showed me the evidence on the Ranier’s case. I sat there and I still thought I don’t know. I don’t know' what to do. I was still in a situation. I just didn’t know what to do. So he showed me a yellow pad which had 15 names and addresses on it. Ranier was the bottom one. There were 14 other burglaries plus the Ranier’s. He said, T know you did the Rainer’s and I am pretty sure you did the rest of them. Now if you cooperate and we get it all over with tonight, then you will be home tonight, if you cooperate and talk to us. We all want to go home. We are all tired.’ It was getting late in the morning. I looked at it and I looked at him and I said, ‘Fifteen charges are a lot of charges.’ He said that arresting officers have certain leeways with prosecuting attorneys, that they could suggest or recommend how a certain case should be handled, just how it should be handled. He said he was not promising me anything, but that if I showed cooperation, that he would say in court if ray lawyer asked him that I cooperated. I said, T don’t know. Fifteen charges are a lot of charges.’ He said that I was only formally charged with one charge and that he could by the next day he could convince his superiors to have four more warrants among the fourteen that were left on the page and be at my door with them. I then decided to talk to him. He said all of this before. This was after the waiver form and before I said anything because up to then I just did not know’ what to do.
Q What caused you to make that statement?
A I told him that I was worried I was going to spend the night in jail and no matter what my parents did they would not be able to pay my bond and I had no money myself, and he said sometimes when a suspect cooperates with the police and talks to them and shows them that he wants to straighten up that the magistrate does ask them and he would say how I acted and that he would tell them that he would recommend that I get personal bond. He also went on to say in response to when I asked about a lawyer, he said it was too late, it would be useless for us to talk about it now. He said it was too late to get one, T might as well just process him through.’
Q When was this, before any statement was made?
A This was before my statement was made. I then asked him how he would feel if I cooperated with him, how would he act in the courtroom and he said if I came back the next day with a lawyer to be present during questioning, that is when he made the statement about having four more warrants at my door the next day.

The Denial of Inducements

Corporal McFee:

“ ‘Do you want an attorney’ and he answered ‘No.’
Q Did you make any promises at all with regard to the case for which he had been arrested or arraigned or any other matters?
A No, sir, no promises were made.
Q Did you in any way threaten him?
A No, sir, no threats.
Q Did you make any statements to him at all with regard to an effort to elicit from him statements concerning the Ranier burglary prior to the time that you actually got the statement other than this execution of this form? [Miranda waiver]
A I made a general statement prior to his beginning to talk to us.
Q Was that before or after the form was executed?
A That was after the form.
Q What was the nature of that general statement?
A As a matter of routine practice whenever an interrogation is to begin I have always laid out the case showing the strength of our case, stating what we have, in effect being completely honest with the defendant.
Q Did you do that with the defendant, Mr. Ponds?
A Yes, sir.
Q This is in regard to what case that you were as you say you were laying out the case, what case were you talking about?
A This would be the case for which he was arrested that we had the warrant, the Ranier case.
Q Detective McFee, prior to the time that you talked with him you indicated that you laid out what it was that you had, the words you used were what the case was. What did you tell him in that regard?
A Basically I indicated the reason for having obtained the warrant, why we had the warrant, why he was being charged. I indicated to him the probable cause that we had obtained.
Q What did you tell him first of all with regard to the facts of the case that you had against him?
A You mean specifically those points?
Q That is correct.
A I mentioned to him the fact the co-defendant had been arrested and had given a statement and mentioned that he had received information as to his involvement. I mentioned to him that we were aware of the location where the property was stolen from, this particular burglary. As I recall I made a general statement we did not just arbitrarily pick his name out of a hat, but we had him and we had a strong case.
Q After you got to the point in time where you had laid out to him the basic facts or the evidence that you had against him, what was his expression, if any, with regard to a desire to talk to you about the case, the Ranier case?
A The defendant paused for a reasonably good length of time, several minutes, and he thought and then he looked up and he started looking at me — I don’t recall exactly how he phrased it, but it was to the effect of O. K. you sold your bill of goods. You sold your car. Where do we start.
Q Did you at any time have any discussion with the defendant, Rickey Ponds, with regard to the serving of a warrant for other cases, other than the Ranier case?
A Yes, sir, I did.
Q When did you have that conversation in the first place?
A After we had concluded the initial case.
Q The Ranier case?
A The Ranier case.
Q What did you say to him about those warrants?
A I prefaced it by stating to him that I myself and several of us in the office had spent a great deal of time investigating various burglaries that had occurred in the area, in the Flower Valley Area. I indicated to him that we had compiled quite a bit of statistics, times and dates and I showed him the yellow list that indicated the addresses and dates and locations of these various offenses. I stated to him that I — I do not recall my exact words — but it was something to the effect that he did very well on the first case and now let us go on from there. Let us get everything straightened out this evening. We do not want to have to go back at a later date for additional warrants, let’s get everything straightened out right now.
Q I believe you indicated to me, Detective McFee, when we talked about this a few days ago that you did say to the defendant at a time prior to the elicitation of the admission or confession that there would come a time when he would be a defendant and would be in a position to be sentenced and that at that time, if he cooperated with you — I am trying to get these words in substance. I know I do not have them accurately — that you would be in a position to put in a good word for him to the judge. Now am I correct in that or words to that effect were stated to him prior to the elicitation of the admission or confession?
A You are incorrect, sir.”

We observe that under Ponds’ testimony the alleged inducement by McFee was made after the latter had “shown [Ponds] a yellow pad which had 15 names and addresses on it. Ranier was the bottom one. There were 14 other burglaries plus the Raniers.” On the other hand, McFee testified unequivocally that Ponds had confessed to the Ranier offense before any reference was made to other burglaries. Officer Staccone also stated categorically that McFee had made no reference whatever to other offenses before the Ponds’ confession in Ranier was made.

The brief of appellant suggests that his confession must be deemed inadmissible because “He [McFee] was not asked nor did he testify whether or not he promised to assist the defendant in getting out on personal bond that night.” It is true that no specific denial of those specific words are to be found in the record. We note again, however, the Ponds’ testimony relating to the time of the alleged inducement:

“Q When was this, [the alleged inducement] before any statement was made?
A This was before my statement was made.”

Thus the trier of facts was confronted by the necessity to resolve the critically dispositive conflicting testimony. If the trial judge believed the testimony of McFee and Staccone, there manifestly was no promise that induced the Ranier confession. On the contrary if the trial judge believed the testimony of Ponds, the Ranier confession was involuntary. He chose to believe the former and reject the latter. The record contains substantial evidence to support the choice he made.

Thus there is, in the subject case, no such condition as was the case in Streams and Gill, both supra, wherein the record demonstrated uncontradicted evidence that the confession was coerced.

We are persuaded from our own independent review of the entire record, that the totality of the attendant circumstances demonstrates that the asserted inducement was denied by necessary implication and that the conclusion of the trier of facts that the testimony of the appellant “is not worthy of belief” should be accorded “appropriate and substantial effect * * * because the trial judge * * * [is] closest to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony/’IIaynes v. Washington, supra.

We find, accordingly, that the confession was without constitutional taint.

Judgment affirmed.

Costs to be paid by appellant.

Moore, J.,

dissenting:

The majority opinion concedes that the police officer was not asked nor did he testify as to whether or not he promised to assist the appellant “in getting out on personal bond that night,” as appellant had testified. In my view, the decision of the Court of Appeals in Streams v. State, 238 Md. 278, 208 A. 2d 614 (1965) required a specific denial of those specific words. I do not agree that Streams is distinguishable and I conclude that the State failed in its obligation to show preliminarily that the statements of the appellant were voluntary since it failed to recall the police officer to refute, if he could, appellant’s charge of a promise to be released on personal bond and go home that evening. Accordingly, I would reverse and remand for a new trial.


author: Thompson, J.,

text:
    MING KUEI LIU et ux. v. GERALD J. DUNNIGAN et al.
    [No. 507,
    September Term, 1974.]

      Decided March 13, 1975.

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

      Richard B. Talkin, with whom were Tallan & Abramson and Israel Drazin on the brief, for appellants.

      James B. Dudley for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The complainants-appellees filed suit in the Circuit Court for Howard County to enjoin the appellant, Dr. Ming Kieu Liu, from using a part of his residence as a doctor’s office. From a decree granting the injunction, appellant has brought this appeal. The determination of the correctness of that decree hinges on the applicability and meaning of a restrictive covenant contained in a deed from a common grantor of the land of appellant and appellees.

The record shows that early in 1953 John David Engineering Corporation conveyed approximately 70.64 acres of land in Howard County to Wesley Johnson. Johnson and his wife conveyed the subject land to Frank T. Kline and his wife by deed dated June 10, 1953. The fifth WHEREAS clause of that deed provides:

“WHEREAS, the said parties of the second part [Klines] have purchased certain of said lots and are desirous of cooperating with the developer [Johnsons] for the purpose of making the covenants, agreements, easements and restrictions hereinafter set forth binding alike upon the developer, his heirs and assigns, and the said parties of the second part, their assigns, the survivor of them, his, or her, heirs and assigns, as well as upon all the land included in said tract and designated as the ninety-four residential lots aforesaid; and,”

The deed imposed several restrictive covenants on the land in the following language:

“. . . and further subject, however, to and with the benefit of the following covenants, agreements, easements and restrictions, which it is hereby covenanted and agreed shall be binding upon the said developer, his heirs and assigns, and upon the said parties of the second part, their assigns, the survivor of them, his, or her, heirs and assigns, and upon all the land included in said tract hereby conveyed, that is to say:
“(1) All the lots in said subdivision, as shown on said plat, or plats, except the block marked ‘Commercial, Subject to Applicable Zoning Regulations’, and heretofore reserved from the operation and effect of this deed and agreement, and which is designed for business or residential purposes, shall be known and described as residential lots and are so referred to hereinafter, and shall be used exclusively for private dwelling house purposes only and no structure shall be erected on said residential building lots other than a one-family dwelling and a one, or two, car garage for the sole use of the respective owners, or occupants, of the lots upon which such garages are erected.
“(7) The herein enumerated restrictions shall be deemed as covenants and not as conditions hereof, and shall run with the land and bind the parties hereto, their heirs and assigns, and all parties and persons claiming by, from, or under them, and upon all the land included in said subdivision, except where not applicable to the aforesaid business lots.
“(8) If the parties hereto, or any of them, their heirs or assigns, shall violate, or attempt to violate any of the aforementioned covenants or restrictions, it shall be lawful for any other party, person or persons owning any other lot in said subdivision to prosecute any proceeding at law, or in Equity, against the party, person, or persons violating, or attempting to violate any such covenant or restriction, and either to prevent him, or them, from so doing, or to recover damages or other dues for such violation.”

The Klines immediately reconveyed the subject land to the Johnsons except for 3 lots which are not involved in the instant case.

On August 8, 1957, Johnson conveyed by deed 17.66 acres of the above-mentioned 70.64 acres to the Hamilton Heights Construction Company. Hamilton Heights conveyed the 17.66 acre plot to Nob Hill Incorporated by deed dated April 3, 1961. 4.994 acres of that land were then conveyed by Nob Hill to William Robinson and his wife by deed dated June 9, 1971. On August 16, 1972, the Robinsons conveyed by deed a lot which was part of the aforementioned 4.994 acres to the appellants. On June 20, 1972, the Robinsons conveyed another portion of the 4.994 acres to Robert W. McColley and his wife, two of the appellees.

None of the above-mentioned deeds, including appellants’, made reference to the restrictive covenants except of course for the original deed from the Johnsons to the Klines. Appellants’ sales contract however did contain the following pre-printed verbiage:

“AND upon payment as above provided of the unpaid purchase money, a deed for the property containing covenants of special warranty and further assurance shall be executed at the Buyer’s expense by the Seller, which shall convey the property to the Buyer. Title to be good and merchantable, free of liens and encumbrances except as specified herein and except: Use and occupancy restrictions of public record which are generally applicable to properties in the immediate neighborhood or the sub-division in which the property is located, and publicly recorded easements for public utilities and any other easements which may be observed by an inspection of the property, and assessment for sewer and water benefits. ” (Italics added).

All of the above-mentioned deeds were properly recorded in the land records office of Howard County.

An attorney, who was accepted by the court as an expert on title searching, testified that, in his opinion, the restrictive covenants contained in the 1958 deed from the Johnsons to the Klines bound the land of appellants and appellees.

The real estate agent who sold appellants their house testified that Dr. Liu requested numerous structural changes be made to the interior of the house but that he never mentioned his intention to use the house as a professional office in addition to its use as a residence. The agent also stated that despite the changes the house still looked like a dwelling, architecturally.

Robert W. McColley, who along with his wife comprised one of the eleven couples who brought suit, testified that he had purchased his home in November 1971 and had moved in during June 1972 prior to appellants. Subsequently McColley spoke with Dr. Lui who told him that he intended “to open up his own office.” Due to a language problem McColley said he had no idea Dr. Liu intended to set up an office in his residence. With regard to the reason for appellees’ suit, McColley testified as follows:

“Well, it’s the feeling that I have and also my wife’s that it does represent a parking problem, a safety hazard, that we and our neighbors have invested a considerable amount of money to reside on that street with the understanding that this was a strictly residential area, that there was not to be any commercialism, which I would say this represents with the signs in the front; the safety hazard, because it’s a deadend street and the children play out in the street and they’re all at various ages, the traffic problem which this would constitute.”

Dr. Liu testified that he spoke with the real estate agent and Mr. Robinson about his plans to use part of his house as an office and that they voiced no disapproval. Liu also said he spoke with the mortgagee and the Howard County Zoning authorities regarding his office and they said that there was no problem. He also spoke with a Dr. Reeves, a dentist in the neighborhood. Reeves had been practicing for some time from an office in his home. In that regard a stipulation was entered into between attorneys for all the parties and was read into the record:

“It is hereby stipulated and agreed between counsel for the Plaintiffs and counsel for the Defendants, that if Francis Reeves were called to testify, Mr. Reeves would testify that in 1962 he contracted with Development Sales Corporation for the construction and purchase of a dwelling house at 9539 Westwood Drive, Ellicott City, which was to contain offices for the practice of dentistry. Mr. Reeves has resided at this address since the home was completed in 1963, and has regularly practiced dentistry at this address on Tuesdays and Thursdays only. While Dr. Reeves does not maintain a principal office for dentistry elsewhere, he is the chief dentist at Spring Grove Hospital and the University of Maryland Hospital and the Children’s Hospital. It is also stipulated that the property of Dr. Reeves is one of those lots originally included in the property of Wesley L. Johnson and wife, to which the restrictive covenants in question apply, as well as, those of each of the Plaintiffs and the Defendants. Dr. Reeves’ office is identifiable by a sign outside the premises.
“It is further stipulated that the telephone directory lists one phone number and address for Dr.' Reeves’ office and that is 9539 Westwood Drive.” (Italics added).

According to Dr. Liu the dispute with his neighbors over the office arose some time in June 1973, shortly before the instant suit was filed. He also stated that since that time he had spent over $9,000 on his office to bring the total cost to approximately $15,000. Liu finally added that he had given up his office in Baltimore City to move to Howard County and that at the time he had no office other than at his home.

APPLICABILITY OF THE COVENANTS

The threshold question presented by this appeal is whether the restrictive covenants in the 1953 deed from the Johnsons to the Klines apply to the parties.

Appellants advance several arguments in support of their contention that the covenants in question do not apply. In light of the stipulation entered into between appellants’ attorney and the attorney for the appellees in which all parties agreed that the restrictive covenants in question applied to their land we need not discuss all of the specific points raised by the appellants.

We note, however, that the trial court’s conclusion that the covenants ran with the land and therefore applied to the appellants is well supported by the cases. Regarding the nature of the restrictive covenant, the Court of Appeals in Gnau v. Kinlein, 217 Md. 43, 141 A. 2d 492 (1958) stated at 48:

“Whether a restrictive covenant is personal to a grantee or a grantor, or to both, or binds their respective successors in title, and so the land by whomever owned from time to time, as well as whether a grantor intended to bind land retained by him, is a question of intention, which may be ascertained from the language of the conveyances alone or from that language together with other evidence of intent. Schlicht v. Wengert, 178 Md. 629; Club Manor v. Oheb Shalom Cong., 211 Md. 465, 475-476; Halle v. Newbold, 69 Md. 265; Turner v. Brocato, 206 Md. 336; Oak Lane Corporation v. Duke, 196 Md. 136.

It is clear to us from the language of the 1953 deed that the Johnsons’ intent was to bind not only themselves and the Klines by the restrictive covenants imposed, but also all subsequent purchasers of the land or any part thereof. The language is susceptible of no other reasonable interpretation.

The fact that the deed to appellants did not contain a reference to the covenants does not alter their effect. The 1953 deed containing the covenants was properly recorded and as such provided constructive notice to the appellants and therefore the covenants are binding against them. Gnau v. Kinlein, supra at 49; Lowes v. Carter, 124 Md. 678, 685-86, 93 A. 216 (1915).

Appellant contended on oral argument that we should not accept the stipulation because the trial judge did not refer to it in his opinion, but relied on the deeds in evidence and on the title searcher’s opinion that the restrictions bound all of the property of the parties hereto. The argument is specious. There is no indication in the record that the stipulation was rejected by the court.

THE MEANING OF THE COVENANTS

The restrictive covenant whose meaning concerns us here is found in the deed dated June 10, 1953 from the Johnsons to the Klines and reads as follows:

“. . . and further subject, however, to and with the benefit of the following covenants, agreements, easements and restrictions, which it is hereby covenanted and agreed shall be binding upon the said developer, his heirs and assigns, and upon the said parties of the second part, their assigns, the survivor of them, his, or her, heirs and assigns, and upon all the land included in said tract hereby conveyed, that is to say:
“(1) All the lots in said subdivision, as shown on said plat, or plats, except the block marked ‘Commercial, Subject to Applicable Zoning Regulations’, and heretofore reserved from the operation and effect of this deed and agreement, and which is designed for business or residential purposes, shall be known and described as residential lots and are so referred to hereinafter, and shall be used exclusively for private dwelling house purposes only and no structure shall be erected on said residential building lots other than a one-family dwelling and a one, or two, car garage for the sole use of the respective owners, or occupants, of the lots upon which such garages are erected.” (Italics added).

Appellants argue that the covenant does not prohibit the use of part of their home as a doctor’s office so long as the outward appearance of the home remains the same and so long as “there is no laboratory, hospital, associate physicians, secretaries, nurses, technicians or some such facilities or assistance” on the premises.

In Osborne v. Talbot, 197 Md. 105, 78 A. 2d 205 (1951), a chiropractor was enjoined by the lower court from “conducting or engaging in any business or profession” in his home because of a restrictive covenant similar to the one in the instant case. The facts disclosed that Osborne’s principal office was not in his home and that his practice at home was to be limited and incidental to his main office. The Court of Appeals reversed the decree granting the injunction holding that the meaning of “residential purposes only” was not so narrow as to preclude the “incidental” practice of chiropractic in a home. The Court added, however, that:

“If defendant should abandon his present office and remove it to his residence, there is not sufficient evidence, as to how the present office is conducted, to enable us to determine whether or not such an office at the residence would violate the covenants. Our decision will be without prejudice to further proceedings in this case or a new case, if and when such a change is made or threatened and plaintiffs are in a position to show the material facts.” Id. at 118.

Such further proceedings did arise. After the court’s decision, Osborne closed his main office and began practicing his profession actively and exclusively at his residence. He had no other office and no other vocation. He had office hours five days and two nights a week. He employed a nurse, had two telephones — one listed as residential, one as a business number. He had several pieces of electrical equipment installed. The office contained four booths and there was a small sign outside with the words “Doctor’s Office” and an arrow on it. There also was evidence that on several specific dates numerous patients were seen by Osborne in his home. As a result of this change, several neighbors sued to enjoin Osborne under the aforementioned restrictive covenants. The chancellor denied the injunction and the complainants appealed. The Court of Appeals in Wells v. Osborne, 204 Md. 375, 104 A. 2d 599 (1954) reversed the chancellor and held with regard to Osborne’s activities:

“We think these activities overstep the bounds and violate the covenant. While there is evidence that the practice is not as large as at the Broadway office, and that office hours are not as long, it cannot be described as incidental in any sense. It is the primary and exclusive use to which his training and talents are applied. Nor is it incidental in the sense of occasional, as in the case of a retired physician accepting calls from a few patients, or an active practitioner acting out of usual office hours in urgent or emergency cases.”
“We suggest that the decree should be modified to enjoin the defendant from the regular use of the premises for the practice of his profession, except as incidental or supplemental to an office elsewhere, or occasionally or in emergencies. His present activities must be discontinued.” Id. at 378, 379.

In Grubb v. Guilford Association, Inc., 228 Md. 135, 178 A. 2d 886 (1962), the Court dealt with a similar restrictive covenant. Dr. Grubb converted the basement of his Greenway home into a doctor’s office, consisting of a hall, a waiting room, an isolation room and an office. The office was equipped with customary medical implements. He employed a receptionist-secretary, who worked from nine to five. He saw, by appointment, an average of eight patients on each of four mornings a week. On those four mornings his office hours were from 9:30 a.m. to 1:00 p.m. He occasionally saw patients on Wednesday afternoon and Saturday morning. There was evidence that on several occasions he saw as many as fifteen patients. The telephone listing for Dr. Grubb’s office was 3607 Greenway (his home). He occasionally gave injections to patients at his old office. On the basis of these facts the Court, relying on the tests laid down in Osborne v. Talbot, supra and Wells v. Osborne, supra, concluded that the use of Grubb’s house as the regular and main office of an actively practicing doctor violated the covenant restricting its use to residential purposes.

In the case at bar Dr. Liu testified that he had moved his office from Baltimore City to his home. He made extensive renovations in his home to convert part of it to an office. While he had no regular employees at the time of trial, he did have a nurse who came about once a week. His practice at the time of trial was minimal due to the uncertainty caused by appellees’ suit. Applying the rationale of the Court of Appeals in Osborne, Wells and Grubb we conclude that Dr. Liu’s activity violated the restrictive covenant. Dr. Liu’s sole and exclusive office for the practice of medicine is in his home. He testified that in response to his neighbors’ concern over the potential traffic problem his office could create, he had assured them that if necessary he would construct a parking lot on his lawn to accommodate his patients. We recognize that Dr. Liu’s practice is not as yet as extensive as those in Grubb and Wells but we do not find that to be crucial. What is determinative in our view is the undisputed fact that Dr. Liu’s only office is in his home.

Despite our holding, we hasten to add that Dr. Liu may not be completely prohibited from seeing any patients at his home. He may do so only if it is “incidental or supplemental to an office elsewhere or occasionally or in emergencies.” Wells v. Osborne, supra at 379.

In that regard, we find, as the Court of Appeals did in Osborne v. Talbot, supra at 111, that the injunction granted by the lower court which prohibited the appellants from using their home “for other than private dwelling house purposes” was too broad and should be clarified.

We, therefore, will modify the decree to prohibit Dr. Liu from only the regular use of his home for the practice of medicine, except as incidental or supplemental to an office elsewhere, or occasionally or in emergencies.

Appellants also argue that the reference to zoning regulations in the 1953 deed creating the covenants, which regulations permitted professional offices in homes provided no exterior changes to the homes are made, show an intent on the part of the Johnsons and the Klines to allow such offices. The argument overlooks the very language of the covenant in question which imposed the restrictions on “All the lots in said subdivision . . ., except the block marked ‘Commercial, subject to applicable zoning regulations.’ ” This is the only reference in the covenant to zoning regulations. It is clear that the original parties were cognizant of the zoning regulations and that they intended to have them apply only to the section of the subdivision labeled “Commercial.” It follows that if they had intended to define “private dwelling house purposes” as used in the covenants in the wider terms allowed by the zoning regulations they would have specifically done so.

The appellants’ final argument with regard to the covenant’s meaning is that the restriction prohibits business or commercial activities as opposed to professional activities. In light of Osborne v. Talbot, supra, Wells v. Osborne, supra and Grubb v. Guilford Association, Inc., supra, this contention is without substance.

The appellants cite a number of out of state cases holding a “use” covenant will not be implied where the covenant relates only to the type of structure. Those cases are inapposite because the language in the instant case expressly prohibits uses other than “for private dwelling house purposes.”

LACHES — ESTOPPEL

It was stipulated that a Doctor Reeves lives in the area covered by the restrictive covenant; that he has maintained a dental practice in his home since 1963; and that he does not maintain a principal office elsewhere. Appellants contend that the appellees waived their right to enforce the covenants by not objecting to the dental practice of Dr. Reeves.

The claim that the covenants are unenforceable against appellants because of the appellees’ acquiescence to the apparent violations of the covenants by Dr. Reeves is not well founded. The defense of acquiescence was discussed in Kirkley v. Seipelt, 212 Md. 127, 128 A. 2d 430 (1957). In that case a restrictive covenant applicable to the parties’ land provided that no building could be built or altered unless approved by a local neighborhood association. The appellant attempted to install a metal awning over her front porch. Several neighbors sued to enjoin her and an injunction was granted. Appellant claimed that the appellees had waived their right to enforce the covenants by not objecting to the installation of several similar awnings by other persons in the development.

The Court quoted with approval the general rule regarding acquiescence and waiver as stated in Tiffany on Real Property, (Abridged Ed. 1940) § 587:

“ ‘. . . if the Plaintiff has been guilty of laches or acquiescence in defendant’s violation of, or has made equal or worse encroachments on [the restrictive covenant], it will not be enforced.’ ” Kirkley v. Seipelt, supra at 135.

The Court held that the allowance of several violations in a large development could in no way be considered an abandonment of the purpose for the existence of the covenants. With regard to appellants’ claim of waiver by acquiescence the Court said, at 136:

“There is no proof of laches, or acquiescence in appellant’s intended violation of the covenant. In fact, she has never installed the same and acquiescence to be a defense must be acquiescence in appellant’s conduct, not that of others. Acquiescence in the actions of others may bear upon the question of abandonment, but not upon the defense of acquiescence as we are now considering it; and, in order to constitute a defense, it must amount to an estoppel. Schlicht v. Wengert, supra.

The same rule was applied in Schlicht v. Wengert, 178 Md. 629, 15 A. 2d 911 (1940). There a restrictive covenant prohibited the sale of liquor. Appellants unsuccessfully attempted to enjoin the operation of a tavern near their home. Evidence showed that appellants had signed, as character witnesses, the liquor license application of one Rinehart who thereupon sold liquor in the area. In reversing the lower court, the Court of Appeals found that appellants were not estopped to complain regarding appellee’s conduct by their acquiescence to Reinhart’s activities. The Court stated, at 637:

“The endorsement of Rinehart’s character, to aid him in securing a license for the sale of liquors, however it might prevent objection to the selling so licensed, would not work an estoppel against the enforcement of the covenant of the Wengerts.”

In the case at bar the possible violation by Dr. Reeves was the only one shown to have occurred in all of the many acres covered by the covenants. As in Kirkley v. Seipelt, supra, we find such a minor violation in so great an area in no way shows that the appellees were giving up their rights to enforce the restrictive covenant. More importantly, as in Kirkley and Schlicht, any acquiescence by the appellees to the violation of the covenants was not directed to the actions of the appellants but rather to the actions of Dr. Reeves. Therefore, neither the defense of laches, acquiescence nor waiver is available to appellants.

THE DOCTRINE OF COMPARATIVE HARDSHIP

Invoking the doctrine of comparative hardship, appellants contend the injunction should not have been granted because if Dr. Liu is prevented from practicing medicine in his home appellants will suffer great hardship when they have caused only negligible harm to appellees.

The equitable doctrine of comparative hardship has been adopted in Maryland. Grant v. Katson, 261 Md. 112, 274 A. 2d 88 (1971); Dundalk Holding Co. v. Easter, 215 Md. 549, 555-557, 137 A. 2d 667, cert. denied, 358 U. S. 821, rehearing denied 358 U. S. 901 (1958). It was described succinctly in Chevy Chase Village v. Jaggers, 261 Md. 309, 320, 275 A. 2d 167 (1971):

“It basically provides that a court may decline to issue an injunction where the hardship and inconvenience which would result from the injunction is greatly disproportionate to the harm to be remedied. Innocent mistake on the part of the party to be enjoined is a factor to be considered in applying the doctrine. Overlooking the fact that the doctor, though a mediate purchaser whose deed only made reference to the restrictive covenants in his predecessor’s deed, should have been aware of the limits on the use of his property, we do not think he can invoke the doctrine by characterizing the potential harm that might result to his neighbors’ homes as comparatively negligible. Their interest in preserving the residential integrity of their community is simply not outweighed by his desire to move to another fashionable and exclusively residential area.”

We conclude that the doctrine has no application to the case at bar. Here Dr. Liu testified that he had spent approximately $15,000 to establish his office. $6,000 of that total was expended prior to June 1973 which was the first time he admitted being aware that appellees were opposed to his home practice. After being so informed, Dr. Liu spent an additional $9,000 on his office apparently without regard for the possible legal validity of appellees’ position. The appellees’ substantial interest in preserving the residential integrity of their community is not outweighed by appellants’ desire to establish a practice in his home.

MODIFICATION OF DECREE

As discussed above we modify the decree by striking the phrase “for other than dwelling house purposes” and inserting in its place “for the regular practice of medicine, except as incidental or supplemental to an office elsewhere, or occasionally or in emergencies; and from maintaining a professional or business sign on the premises.” Md. Rule 1075 b.

Decree modified, and as modified affirmed.

Appellants to pay the costs.

      . The deeds from the Robinsons to the rest of the appellees were subsequently introduced. Of those 10 deeds only 3 mention restrictions. They do so in the following manner: “ALSO being subject to the legal operation and effect of the restrictions and/or easements of record, if any.”

      . The deed dated June 10, 1953, from the Johnsons to the Klines in imposing the restrictions recited that the commercial part was a strip along Route 40. This is sufficient, without the introduction of the plat, to show appellants’ property was not a part of the land exempted from the residential restrictions because the appellants’ lot is not along Route 40.

      . It does appear that he was employed elsewhere.