text:
    WILLIE ARMSTRONG v. STATE OF MARYLAND
    [No. 1093,
    September Term, 1981.]

      Decided May 5, 1982.

    The cause was submitted on briefs to Gilbert, C. J., and Moylan and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Louis P. Willemin, Assistant Public Defender, for appellant.

      Submitted by Stephen H. Sachs, Attorney General, Philip M. Andrews, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Charles Kearney, Assistant State’s Attorney for Baltimore City, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

On April 16, 1981, Willie Armstrong was convicted by a jury in the Criminal Court of Baltimore (Levin, J.), of common law mayhem and of statutory maiming (Article 27, § 385). Appellant was committed to the custody of the Division of Correction for ten years for the common law mayhem with a consecutive ten year sentence for the statutory maiming. On appeal he contends the court erred:

1. In excluding certain evidence, and
2. In imposing sentences for both offenses.

The record before us shows that at about 6 p.m. on Saturday, November 1,1980, when Wilbert Hessel went into the residence of Theodore Betts, he found Betts and the appellant, who occasionally stayed at the Betts’ residence, engaged in an argument. Specifically, Hessell said that he heard Betts say to Armstrong:

"I am tired of you messing with me. I will take my shotgun and blow your head off and throw the rest of you out the window.”

Subsequently, the appellant pulled out a bottle of acid and poured its contents over the head of Betts. Betts testified:

"[A]fter he poured the stuff over me, I felt it started burning, and that is when I left the chair and I ran to the bathtub to try and run some water over my head but I couldn’t get my head far enough down to get it underneath the spigot, and I ran from the bathroom to the kitchen sink and I tried to get some water from there but I couldn’t get there because the sink was full of dishes.
So, then I had to leave the room because the stuff was so strong you couldn’t stay up there, and I came downstairs on my own and that is when I asked the young lady to get the ambulance for me, and the officer.”

As a result of the acid burns, Betts suffered disfigurement, loss of one eye, and a partial loss of vision in the other eye.

I. Exclusion of Certain Evidence

The thrust of Armstrong’s defense was that he acted in self-defense. According to him, Betts had been bending over, reaching along the floor, and the appellant said he thought Betts was reaching for a weapon.

At the trial, Armstrong attempted to introduce evidence concerning Betts’ propensity towards violence.

Testimony disclosed that Betts had been living with a woman identified in the record only as "Annie.” It also developed that Annie, unknown to Betts, had been seeing a man named Porter Francis. Although Armstrong knew of the situation involving Annie and Francis, he did not tell Betts. As a result, when Betts found out about appellant’s prior knowledge concerning Annie and Francis, Betts held appellant responsible for not telling Betts about it.

Judge Levin permitted appellant to testify that Betts owned a shotgun and a pistol, and that Betts had threatened both Annie and Francis. The instant problem arose when Armstrong wished to introduce evidence about an apparently unrelated incident, but the record is unclear as to the exact identity of the persons involved in that incident who were allegedly threatened by Betts. In any event, Judge Levin refused to allow the testimony.

On appeal, the appellant contends that the refusal to admit the evidence was error.

On the strength of Williamson v. State, 25 Md. App. 338, 333 A.2d 653 (1975), we agree. In Williamson, we said:

"Contrary to the general reputation rule which prohibits evidence of specific acts, a defendant asserting self-defense may offer evidence of specific acts of which he was aware at the time of the killing. Such evidence bears on the reasonableness of his actions:

'It is, of course, generally true that the reputation of the deceased cannot be shown by evidence of specific acts. However, where there is testimony tending to support the theory of self-defense, the presence of such testimony entitles the defendant to the benefit of certain rules of evidence which would not otherwise be available. It is competent for him to prove his knowledge of facts which would have a reasonable tendency to justify his asserted belief as to the existence of a deadly purpose in the overt acts of the deceased. ... On the issue whether or not the accused had reasonable grounds to believe himself in imminent danger, he may show his knowledge of specifíc instances of violence on the part of the deceased. Previous acts of violence by the deceased, especially if committed recently, known to the defendant, might have an even stronger influence on his mind than would be produced by knowledge of the reputation of the deceased for violence.’ Jones v. State, 182 Md. 653, 659; Accord, Gunther v. State, 228 Md. 404, 410; Barger v. State, 2 Md. App. 565, 568-569, cert. denied, 249 Md. 731. [Emphasis supplied].” 25 Md. App. at 343-344, 333 A.2d at 656.

Our agreement with appellant, however, does not mean we shall reverse, because we think the error to be harmless beyond a reasonable doubt.

The record as a whole shows that the matter of the "inevitable triangle” between Betts, Porter Francis, and Annie, as it bore on Betts’ propensity towards violence in general and towards the appellant in particular was well plotted before the jury. Thus, the error is not grounds for setting aside appellant’s conviction. Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976).

II. Sentencing for Two Offenses

Appellant next claims that:

"The Court erred in imposing separate consecutive sentences for common law and statutory mayhem.”

Armstrong was convicted of violations of Md. Ann. Code art. 27, § 384, common law mayhem, and § 385, the so-called "statutory maiming.” He was sentenced to consecutive terms of ten years imprisonment. Appellant avers that the intent of the legislature in enacting section 385 was that when, as here, a single act violates both provisions, a separate sentence may not be imposed under each section.

Section 384 prescribes the penalty for common law mayhem and for "tarring and feathering.” The act provides:

"Every person, his aiders and abettors, who shall be convicted of the crime of mayhem, or of tarring and feathering, shall be sentenced to the penitentiary for not more than ten years nor less than eighteen months.”

The statute, section 385, proscribing maiming declares:

"Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of cutting out or disabling the tongue, putting out an eye, slitting the nose, cutting or biting off the nose, ear or lip, or cutting or biting off or disabling any limb or member of any person, of malice aforethought, with intention in so doing to mark or disfigure such person, shall be guilty of a felony and upon conviction thereof be sentenced to the penitentiary for not less than two nor more than ten years.

The common law crime of mayhem is "the violently depriving another of the use of such of his members as may render him the less able, in fighting, either to defend himself or annoy his adversary.” 4 Blackstone, Commentaries on the Law of England 1603 (1902); 2 Chitty, Criminal Law * 784 (1819); 1 Hawkins P.C. 107 (8th ed. 1824). See also Commonwealth v. Newell, 7 Mass. 244 (1810). The cutting off or weakening of the hand, finger, arm, leg, or the putting out of an eye, inter alia, constituted mayhem, while cutting off the ear or nose did not since neither the ear nor the nose was included within the ambit of fighting members.

The first statute concerned with mayhem is found in 5 Henry IV, ch. 5. That act related to cutting out the tongues and putting out the eyes of the victims of a crime so that the victim could not "give evidence against those who had ill used them.” Later, in 37 Henry VIII, ch. 6, cutting "off the ears of any one of the king’s subjects, otherwise than by authority of law, chance, medley, sudden affray or adventure,” was made a crime. It was punished by paying "treble damages to the party aggrieved ... and ten pounds to the king....”

In 1670, the first major change in the law of mayhem occurred. At that time a member of parliament, Sir John Coventry, was attacked by some armed men. Sir John’s nose was slit, and he was "so wounded that he was not only disfigured, but his life brought into great danger.” Parliament passed what has become known as the "Coventry Act,” obviously taking its name from Sir John Coventry. The "Coventry Act” made it unlawful to "cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any subject of his majesty, with intention in so doing to maim or disfigure....”

Interestingly, "slitting the nose” did not mean that the nostrils had to be perforated. "A wound across the upper part of the nose on a level with the eyes, if it cuts the flesh, and divides the frontal vessels of the forehead, will fix the party by whom it was given, with the guilt of a capital felony.

A significant part of the "Act of Coventry” was the "intent to disfigure.” If an accused intended to murder by maiming, he is guilty of the former, not the latter. The intent to maim will not be merged into the design to kill.

Section 385 unmistakably is patterned after the "Act of Coventry.” Although many states have modified the common law by statute which makes disfigurement and mayhem one and the same crime, Maryland has not.

Irrespective of the course others may be pursuing, Maryland retains the English law which, as we have seen, included the 1670 "Act of Coventry,” as an offense separate and distinct from common law mayhem.

Notwithstanding that, this State has two acts that seemingly punish, in this case, the same misdeed, that is, throwing acid upon another person. Had the victim not been blinded in one eye, there can be no doubt that appellant would have been charged with the statutory crime, or put another way, violating Maryland’s version of the "Act of Coventry.” Nevertheless, the fact that Betts was blinded in one eye constitutes a violation of the common law. Blinding of the eye is also a violation of the statute. If the record were clear as to any specific act of disfigurement and clear that the jury concluded the disfigurement was a violation of section 385 and the blinding of one eye was a violation of the common law, separate convictions might stand. The record, however, is not clear.

Each count of the criminal information charged that Armstrong assaulted Betts by "burning the chest, hand area, and eyes.” The count charging a common law violation went on to asseverate that Betts "was rendered less able, in fighting, to defend (himself/herself) and to annoy (his) adversary....” The count that was grounded on the statute averred that Armstrong performed the act "with intent then and there to mark and disfigure” Betts. Were it not for the fact that the common law count alleges that Betts was "rendered less able, in fighting, to defend himself,” the charges would be basically the same.

There was evidence from which the jury could conclude that Armstrong blinded Betts in one eye and thereby rendered Betts less able to defend himself in fighting.

That evidence clearly established a violation of the "Act of Coventry.” The difficulty is that in order for the jury to convict Armstrong of the common law offense of mayhem, it had to rely upon the truthfulness of the same evidence.

The distinction between common law mayhem and statutory maiming is still viable in Maryland, but that fact does not mean that a person may be convicted of both offenses when "all elements of one offense are present in the other, the offenses are deemed to be the same.... ”Newton v. State, 280 Md. 260, 266, 373 A.2d 262, 265 (1977); Thomas v. State, 277 Md. 257, 267, 353 A.2d 240, 246 (1976); Newton and Thomas prevent the conviction of Armstrong for both the common law and the statutory crimes. Under the facts of this case, the offenses merged under Newton on double jeopardy grounds. Accordingly, we vacate the conviction for common law mayhem.

Judgment on count one vacated.

Judgment on count two affirmed.

One-half the costs to be paid by appellant.

One-half the costs not to be reallocated. Md. Rule 1082 f.

      . Both sections were added to the code on January 6, 1809, Laws of Maryland, Ch. 138, § 4, and have continued with only minor changes in sentencing. The sole substantive change in what is now section 385 was the substitution of the word "mark” for "maim.”

      . Chitty, Criminal Law *785 (1819). It should be borne in mind that the literacy rate was extremely low, so that cutting out the tongue and blinding of the victim almost insured that identification of the offender would not be made.

      . Chitty, supra *785.

      . The act as quoted in 1 Hawkins, Pleas of the Crown (8th ed. 1824), 107, provided:
      "By 22 and 23 Car.2.c.l it is enacted, 'That if any person shall, on 'purpose and of malice forethought, and by lying in wait, 'unlawfully cut out or disable the tongue, put out an eye, slit the 'nose, cut off a nose or lip, or cut off or disable any limb or member of 'any subject of his majesty, with intention in so doing to maim or 'disfigure, in any the manners beforementioned, such his majesty’s 'subjécts, that then and in every such case, the person or persons so 'offending, their counsellors, aiders, and abbettors, knowing of, and 'privy to the offense as aforesaid, shall be and are hy the said statute 'declared to be felons, and shall suffer death as in cases of felony 'without benefit of clergy.’ ”

      . Chitty, supra * 785. See also 1 Leach, Crown Law 55 (4th ed. 1815).

      . Ibid at *786.

      . See e.g., People v. Green, 59 Cal. App. 3d 1, 130 Cal. Rptr. 318 (1976); Cal. Penal Code § 203; Kitchens v. State, 80 Ga. 810, 7 S.E. 209 (1888); State v. Foster, 156 La. 891, 101 So. 255 (1924) (under a statute substantially identical to § 385); Commonwealth v. Hogan, 387 N.E.2d 158 (Mass. App. 1979); Mass. G. L. c. 265, § 14; Lamb v. Cree, 466 P.2d 660 (Nev. 1970); Nev. Rev. Stat. § 200.280. United States v. Cook, 462 F.2d 301 (D.C. Cir. 1972); (Mayhem as dependent on part of body injured and extent of injury) Annot. 16 ALR 955, 957 (1922).

      . According to Chitty *784, at ancient law those adjudged guilty of mayhem were sentenced to suffer the same injury as that they had inflicted upon the victim. The "lex talionis of Moses” was literally an "eye for eye, a leg for a leg.”


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    BLANCHE B. VINCI v. ALLIED RESEARCH ASSOCIATES, INC. et al.
    [No. 1127,
    September Term, 1981.]

      Decided May 6, 1982.

      The cause was argued before Liss and Wilner, JJ., and Clayton C. Carter, Associate Judge of the Second Judicial Circuit, specially assigned.

      Leonard S. Bernstein for appellant.

      George M. Church and John Ulrich, Jr., with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

On January 14, 1974, while in the employ of appellee, Allied Research Associates, Inc. (Allied), appellant fell into a hole and injured her back, left leg, and shoulder, as a result of which she filed a workmen’s compensation claim. Because appellant had some preexisting injuries, the Subsequent Injury Fund (the Fund) was impleaded into the case.

On January 16,1976, the Workmen’s Compensation Commission found that appellant had a 60% industrial loss of the use of her body as a whole, 20% being due to the accident of January, 1974, and 40% being due to the preexisting condition. An award was made, on that basis, against both Allied and the Fund. Dissatisfied, both appellant and the Fund appealed to the Circuit Court for Anne Arundel County.

After trial in that court on April 22,1977, six issues were submitted to a jury, which returned verdicts as follows:

(1) Appellant had a permanent industrial disability of 90%;
(2) She had a permanent impairment before the January, 1974, accident;
(3) That previous impairment was not a hindrance or obstacle (and was not likely to be 'a hindrance or obstacle) to her employment;
(4) Appellant’s present permanent industrial disability was substantially greater because of the combined effects of the previous impairment and the January, 1974, injury than the disability would have been from that injury alone;
(5) All (100%) of appellant’s industrial disability was attributable to the January, 1974, injury; and
(6) Ten percent of appellant’s present condition was attributable (assessed) to the previous disease or infirmity.

The court thereupon remanded the case to the Commission for further proceedings in conformance with the jury’s findings. On May 4, 1977, the Commission rescinded its previous order and issued a supplemental one finding that appellant sustained a permanent partial disability amounting to 90% industrial loss of use of her body, 80% being attributable to the January, 1974, accident and 10% to preexisting conditions. The new order recited the jury’s findings and stated that it was being issued "in conformity with the Findings and Judgment of the Jury.” It revised the amount of the award, and, in light of the jury’s third finding — that the preexisting impairment was not a hindrance to appellant’s employment — excused the Fund from liability and assessed the award solely against Allied and its insurer.

On September 11, 1978, appellant sought to reopen the proceeding, claiming a worsening of her condition. After a hearing on the matter, the Commission, by order of April 11, 1979, found that, as a result of the January, 1974, accidental injury, appellant had become permanently totally disabled. Following a denial of Allied’s request for rehearing and the Commission’s affirmance of the award, Allied appealed.

Having been excused from liability in May, 1977, the Fund did not participate in the 1978-79 proceeding before the Commission, although it apparently retained its status as a party. Allied’s petition for appeal did not name the Fund as a respondent and made no allegation against or affecting it. The sole complaint made in the petition, as set forth in paragraph 8, was that, by finding that 100% of appellant’s disability was attributable to the January, 1974, accident, the Commission "overruled” the jury verdict that only 90% was so attributable. The Fund, nevertheless, answered the petition, denying the allegations of paragraph 8, and then moved to be dismissed as a party. The court treated that motion as one for summary judgment and, on April 17,1980, granted it. Relying on Subsequent Injury Fund v. Thomas, 275 Md. 628 (1975), and art. 101, § 66, the court held, correctly, that the Fund would be liable only if a preexisting condition created an obstacle to appellant’s subsequent employment, that the jury had previously determined as a fact that such was not the case, and that that determination constituted res judicata and could not be relitigated.

The court took a different approach with respect to Allied’s res judicata argument, which was repeated in its motion for summary judgment. Referring to ' the Commission’s continuing jurisdiction under art. 101, § 40 (c), and to comments made by us in Subsequent Injury Fund v. Baker, 40 Md.App. 339 (1978), the court concluded that the Commission had the authority to reopen a proceeding before it and to revise previous orders and awards made by it. Res judicata, it said, was not applicable to such determinations. The court therefore denied Allied’s motion, and ruled that the sole issue to be resolved in the appeal was whether appellant "is now permanently totally disabled as a result of her accidental injury of January 14,1974 or whether her permanent total disability is also attributable to the preexisting condition.”

After trial, those issues were submitted to a jury, which agreed with the Commission that appellant was 100% permanently disabled but found that 45% of the total disability was due to a preexisting physical condition. The latter finding, of course, served to reduce substantially appellant’s benefits, and has prompted this appeal. Two issues are raised, but we need address only the first: whether res judicata, or some allied doctrine, precluded the Commission and the court from revising the first jury’s finding that 10% of appellant’s disability was attributable to preexisting conditions.

Md. Ann. Code art. 101, § 40 (c), provides in relevant part that "[t]he powers and jurisdiction of the [Workmen’s Compensation] Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified... .” In Subsequent Injury Fund v. Baker, supra, 40 Md.App. 339, 345, we characterized that section as "one of the broadest re-opening statutes,” one that "not only gives the Commission continuing jurisdiction over each case, [but] also invests the Commission with blanket power to make such changes as in its opinion may be justified.” The doctrine of res judicata, we said, "is necessarily limited in its effect” by that statute. Compare Mackall v. Zayre Corporation, 293 Md. 221 (1982).

In a real sense, § 40 (c) gives the Commission a revisionary power akin to that available to courts under Md. Ann. Code, Courts article, § 6-408, and Maryland Rule 625a, but without the thirty-day limitation. Commission orders are final, in the sense of being appealable, when they are entered, as are judgments entered by a court; but they can be reconsidered and revised by the Commission at its discretion. As res judicata would not preclude a court from exercising its authority under § 6-408 or Rule 625a, so it would not preclude the Commission from exercising its authority under § 40 (c). The Commission is not "irrevocably bound” by its earlier findings. Anchor Motor Freight, Inc. v. Subsequent Injury Fund, 278 Md. 320, 328 (1976).

We are not dealing here just with a revision of a Commission order or finding, however; this case involves an important added dimension. The findings that the Commission revised, and that the jury re-revised, was one made by a jury, not by the Commission. As noted, the Commission’s second order, of May 4,1977, was adopted merely to conform to the jury’s findings. That requires us to consider the effect of § 56 of art. 101, concerning appeals from Commission decisions, and the principle laid down in Buffin v. Hernandez, 44 Md.App. 247 (1979).

Section 56 authorizes any person aggrieved by a Commission decision to "have the same reviewed by a proceeding in the nature of an appeal” in the appropriate circuit court. The court, in such a proceeding, "shall determine whether the Commission has justly considered all the facts concerning the injury, whether it has exceeded the powers granted it by the article [101], and whether it has misconstrued the law and facts applicable in the case decided.” On the motion of any party and subject to an exception not relevant here, the court shall "submit to a jury any question of fact involved in such case....” The court, upon the evidence it hears, may confirm, reverse, or modify the Commission decision or remand the case for further proceedings.

Where the claim arises from an accidental injury, as here, rather than an occupational disease, § 56 provides "for a trial which is essentially de novo.” Maryland Bureau of Mines v. Powers, 258 Md. 379, 382 (1970); Montgomery Ward & Co., Incorporated v. Bell, 46 Md.App. 37 (1980). The jury’s function in such a case is the same as in any civil case, to weigh conflicting evidence and make findings of fact on the issues presented to it; and, as in any civil case, the jury’s findings of fact, if based on legally sufficient evidence, are final and are not reviewable on further appeal. Atlantic Refining Company v. Forrester, 180 Md. 517 (1942); Great A. & P. Tea Co. v. Hill, 201 Md. 630 (1953). The court’s function is merely to apply the law to the facts as found by the jury. Arundel Corp. v. Plater, 236 Md. 322 (1964); Morris v. Christopher, 255 Md. 372 (1969).

Once that is done, the jury’s finding becomes part of the judgment of the court, which is a tribunal superior in authority to the Commission. That necessarily limits the Commission’s prerogatives under § 40 (c); for if the superior tribunal says in the form of a judgment that is so, the inferior tribunal is not then competent to say that it is not so. That is implicit from what we said and held in Buffin v. Hernandez, supra, 44 Md.App. 247, 255. It is a necessary principle. If the Commission, under § 40 (c), could act in direct contravention of the court’s judgment, the appeal process provided by § 56 would be rendered meaningless; and we do not believe that the General Assembly intended for § 40 (c) to have that effect.

Although in at least one case the Court of Appeals viewed this type of situation in the context of res judicata, we think an equally permissible approach, at least in workmen’s compensation cases, is that of collateral estoppel, or to consider the judicial finding as establishing the law of the case. See The Chatham Corp. v. Beltram, 243 Md. 138, 149 (1966); United Dredging Co. v. Industrial Accident Commission, 284 P. 922 (Cal. 1930). In that way, the conclusiveness of the court’s judgment can easily and logically be reconciled with the continuing jurisdiction of the Commission. The Commission would be foreclosed from modifying that which was, in fact, adjudicated by the court, but it would not be precluded from considering and passing upon those things that were not so adjudicated.

This requires some care, especially in a proceeding under § 40 (c), for some things may appear to have been adjudicated in an earlier proceeding that were not, in fact, adjudicated. In the case at hand, for example, the 1977 jury determined (1) that appellant then had a 90% permanent disability; (2) that 10% of that disability was attributable to a preexisting condition; and (3) that the preexisting injury was not a hindrance to appellant’s employment. Those findings are fixed and are entitled to finality; the law would preclude the Commission (or another court) from relitigating them.

A finding that appellant had a 90% permanent disability in April, 1977, would not, however, preclude the Commission from later acting under § 40 (c) to determine whether that disability had changed. The relevant inquiry in such a proceeding is not what the disability had been, but what, if anything, has transpired since the earlier determination. As Larson points out (3 Larson’s Workmen’s Compensation Law, § 81.32), "[i]n a change-of-condition reopening proceeding, the issue before the Board [Commission] is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based.” Upon that premise, the Commission’s determination that in April, 1979, appellant’s condition had worsened to the point that she then had a 100% permanent disability contravened no principle of res judicata or collateral estoppel because it did not involve a relitigation of the issue previously adjudicated or a tampering with the earlier finding of the court.

If, as here, the Commission finds a change in the claimant’s previously determined disability, it must then consider and determine what caused the change. Again, it is only the change that is at issue. The previous judicial determinations as to attribution are pertinent only in the context of the disability to which they related, serving as a base against which to view the current situation.

Unlike an initial proceeding (as in Blanding v. J. H. Andrews and Sons, or Trotta v. County Car Center, Incorporated, both supra, footnote 1, for example), what the Commission must attribute in the new proceeding is the change in disability, not the disability itself. If there was evidence to show that the disability attributable to the accident, previously fixed at 80%, had worsened to the point of creating a 100% disability and that the increase in overall disability from 90% to 100% was attributable solely to that worsening of the accidental injury, the Commission could properly find as it did without relitigating anything previously adjudicated. The fact that a preexisting condition contributed 10% to appellant’s previous 90% partial disability does not preclude a later finding that the accidental injury worsened to the point of creating, by itself, a total disability. Cf. Anchor Motor Freight, Inc. v. Subsequent Injury Fund, supra, 278 Md. 320. So long as the focus of the later proceeding remains on the change in condition, the Commission can act without violating res judicata or collateral estoppel concepts.

That necessary focus was lost, however, in the second judicial proceeding; and that led to error.

Allied’s petition for appeal set forth two complaints about the Commission’s determination: (1) that "there was no evidence presented whatsoever which would indicate or prove that the increase in the Claimant’s disability was a result of the January 14, 1974 accident” (emphasis supplied), and (2) that the Commission "has, in effect, overruled the previous jury finding” that 10% of the disability was due to the preexisting condition. Those were appropriate issues to be raised on appeal — the first a factual one to be resolved by the trier of fact, in this case a jury, the second a legal one for resolution by the court.

Unfortunately, in the trial of the case, Allied was permitted to go well beyond the issues raised in the petition. Rather than merely questioning the causation of any increase in appellant’s disability, which was the issue before the Commission, Allied sought to relitigate the entire underlying nature and extent of appellant’s disability. Its position in this proceeding was precisely that taken in 1977 — that only 5% of appellant’s disability was attributable to the accident; and the evidence offered in support of that position, through Dr. Jerome Reichmister, was more or less the same as had been presented to the first jury.

That type of evidence tended to becloud the issues actually before the court, which concerned only whether the Commission erred in finding an increase in overall disability and attributing all of that increase to the accidental injury. Upon the state of this record, the jury should have been asked but two questions: (1) to what extent, if any, did appellant’s permanent disability increase beyond 90% since April, 1977; and (2) what proportion of the increased disability was caused by a worsening of the accidental injury and what proportion was caused by a worsening of the preexisting condition?

The jury could have answered those questions without infringing upon either the scope of review afforded by § 56 of art. 101 or the basic principles of res judicata, collateral estoppel, or "law of the case.” It could have rejected entirely the Commission’s first finding, and thus left appellant’s disability as it had previously been determined (90%); or it could have concluded that the disability had increased to some point beyond 90% but less than 100%. The jury, if it found some increase in overall disability, could have found that all, some, or none of it arose from a worsening of the accidental injury.

In the absence of any evidence of subsequent improvement, however, either in the overall disability or in that part of it arising from the accidental injury, the jury was simply not competent to conclude that the overall disability was less than 90% or that less than 80% of that disability was attributable to the 1974 accident; for any such finding would necessarily have amounted to a relitigation of matters previously adjudicated. The court erred in permitting the jury to go beyond the narrow issues properly before it, thus producing, in this case, an inappropriate verdict.

Judgment reversed; case remanded for retrial; appellees to pay the costs.

      . The answers to issues (5) and (6), seemingly contradictory, have to be regarded in the light of the jury’s verdict on issue (4) and our decision in Blanding v. J. H. Andrews and Sons, 36 Md.App. 14 (1977), as most recently reviewed by the Court of Appeals in Trotta v. County Car Center, Incorporated, 292 Md. 660, 441 A.2d 343 (1982). The rule stated in Trotta is that " '[apportionment under [Md. Ann. Code art. 101] § 36(7) is available whenever it is shown that the present permanent disability is due in part to a preexisting disease or infirmity,’ ” but that "for there to be an apportionment, the preexisting disease or infirmity must have combined with the disability for which claim is being made to create a greater disability on the part of the workman than would have occurred without the effect of the preexisting condition.” Id. at 665, 441 A.2d at 345.
      Both Blanding and Trotta involved the situation in which (1) the claimant sustained a compensable accidental injury which, of itself and without regard to any preexisting condition, caused a total loss of vision in the claimant’s eye, but (2) by reason of a preexisting condition, the claimant had a partial loss of vision in that eye prior to the accident. In Blanding, this Court concluded that, notwithstanding that the loss of the eye would have resulted solely by virtue of the accidental injury, because there had been a 36% loss of vision in the eye prior to the accident, that percentage of the total loss had to be apportioned to the preexisting condition, and thus only 64% of the total loss was compensable. In Trotta, the Court of Appeals took the opposite approach, concluding that in such a case no part of the total loss suffered by the claimant could be attributed to the preexisting condition.
      Where the resulting overall disability is a partial rather than a total one and is not restricted to a "member”, such as an eye, the problem becomes a bit more difficult. It is not inconsistent in that type of case to say that (1) because of the combination of a preexisting condition and an accidental injury, the resultant disability is greater than it would have been had there been no preexisting condition, (2) the accidental injury, building on the preexisting condition, sufficed by itself to cause the resulting disability to be what it is, but (3) a certain percentage of that disability is attributable to the preexisting condition in the sense that, but for that condition, the accidental injury would not, of itself, have produced the full extent of the resulting disability. That is precisely what the jury seemed to be saying in its answers to issues (4), (5), and (6). It concluded that (1) had appellant not had the preexisting condition, the accidental injury would have produced a permanent disability of 80%, (2) because there was a preexisting condition, the accidental injury produced a disability of 90%, and (3) 10% of that overall disability must therefore be attributed or apportioned to the preexisting condition.

      . In this regard, Maryland follows a different rule than some other States. See, for example, Whitley v. Industrial Commission, 508 P.2d 778 (Ariz.App. 1973); Burkhart v. Argonaut Insurance Company, 238 S.E.2d 400 (Ga. 1977).

      . See Woodlawn Area Citizens Association, Inc. v. Board of County Commissioners, 241 Md. 187, 195 (1966), a zoning case, wherein the Court stated that
      "[w]hatever view may be taken of the applicability of the principles of the doctrine of res judicata to administrative or quasi-judicial determinations or actions of an agency, the text writers and the courts are in general agreement that the judgment or order of a court, including a trial court, which affirms or reverses such determinations or actions, ordinarily is.”

      . Larson takes this analysis one step further in § 81.33. There, he states that "[s]ince the issue is the degree of change in claimant’s condition, it is important that expert testimony and Commission findings on degree of disability be comparative, not absolute; i.e., they must be phrased in terms of extent or percentage of change from the degree of disability as found by the Commission in the original award.” Maryland has not gone quite that far. The principle is important, however, to the extent that it requires both the evidence before the Commission and the Commission’s findings thereon to focus on the only relevant issues in a "changed condition” proceeding under § 40 (c); i.e., the change in the condition.


author: Bishop, J.,

text:
    FIRST MARYLAND LEASECORP v. CHERRY HILL SAND & GRAVEL CO., INC.
    [No. 1151,
    September Term, 1981.]

      Decided May 6, 1982.

    The cause was argued before Mason, MacDaniel and Bishop, JJ.

      Lawrence J. Gebhardt, with whom were Brian C. Parker and Gebhardt & Smith on the brief, for appellant.

      Douglas G. Worrall, with whom were Smith, Somerville & Case on the brief, for appellee.
   Bishop, J.,

delivered the opinion of the Court.

The appellee filed suit against the appellant by way of a three-count amended Bill of Complaint ultimately refined to the single count for reformation of a contract in the form of a lease agreement between the parties. The Circuit Court for Baltimore City decreed reformation of the contract. The appellant subsequently entered a suit based on that decree against the appellee in the Circuit Court for Howard County.

We will not decide any of the three issues raised by the appellant since we grant the appellee’s motion to dismiss because a party may not appeal a decree of one court and at the same time use that decree as the basis of an action in another court.

Facts

The appellee, a contractor, by a lease agreement dated February 8, 1974, agreed to lease certain pieces of heavy construction equipment from the appellant. On a schedule dated January 30, 1975, added to the lease agreement of February 8, 1974, a Caterpillar Model No. 235 Excavator was included in the lease. Also included in the schedule was an option agreement having to do with the disposition of the 235 Excavator upon the termination of the lease. This option agreement was the subject of the reformation action. The Circuit Court of Baltimore City reformed the option agreement to provide:

"Purchase Option Agreement — the Lessee shall have the option, at the expiration of the term of this lease, to purchase from the Lessor the equipment covered hereby for a sum of $9,490.93. At the option of Lessor, at the expiration of the term of this lease, Lessee shall be required to purchase the equipment covered hereby for the sum of $9,490.93. Should neither option granted hereunder be exercised, the Lessor may elect to sell or otherwise dispose of said Equipment to a third party.”

Motion to Dismiss

On June 30, 1981, the appellant filed an appeal to this Court from the above order. Less than seven months later, on January 21, 1982, the appellant filed suit against the appellee in the Circuit Court for Howard County. The Bill of Complaint alleged that following the purchase and resale by the appellee of two graders which were other equipment covered by the lease agreement of February 8, 1974 the appellant acceded to the request of the appellee to reduce the lease payment believing "that it would be entitled to and would receive at the end of the lease term the residual value attributable to the Caterpillar excavator when the lease term expired.” Using as a basis the very order of the Circuit Court of Baltimore City which is the subject of this appeal, the appellant in the Howard County action states:

"6. As a result of the actions of Defendant in instituting the suit in the Circuit Court for Baltimore City and as a result of the decree of the Circuit Court for Baltimore City reforming the Equipment Lease to include an option on the part of Cherry Hill to purchase the three (3) items of equipment, a material assumption of Plaintiff in agreeing to reduce the monthly rental payments due from Cherry Hill over the term of the lease proved false and incorrect and Plaintiff, in consequence, was mistaken as to a material fact in connection with its agreements to reduce the monthly rental payments due from Cherry Hill under the Equipment Lease after the sale of the two (2) motor graders and rippers.
7. To permit Defendant to have the benefit of Plaintiffs agreements to reduce the rentals due over the term of the Equipment Lease is unconscionable and would permit Cherry Hill to reap a windfall on the basis of a material mistake made by Plaintiff in agreeing to reduce the rental payments, particularly in light of the fact that Plaintiff received no material benefit or other consideration for its agreements to accept reduced rental payments.
8. The mistake made by Plaintiff did not result from any violation by Plaintiff of a positive duty owed to Defendant or from any culpable negligence on the part of Plaintiff and resulted solely from the entry of the decree from the Circuit Court for Baltimore City reforming the Equipment Lease to include a term which Plaintiff, in agreeing to accept reduced rentals, did not know would be included in the Equipment Lease at the end of the lease term.”

The Bill of Complaint concludes with prayers for recision of the agreement to reduce the monthly rentals, for the award of $14,240.04 in damages representing rentals still due because of the reformation, for interest and costs and expenses.

In Stewart v. McCaddin, 107 Md. 314 (1908), Stewart, trustee under a mortgage foreclosure appealed an order refusing his motion to dissolve an injunction prohibiting the sale. Although the lower court overruled the motion it continued the injunction in force "with this modification, however, that the said injunction shall in no wise interfere with the foreclosure of the mortgage mentioned in these proceedings for any default occurring after this date.” Id., p. 318. When a subsequent default did occur the trustee, the appellant, advertised the property for sale under that order’s authority. The Court of Appeals held:

"He thus acquiesced in and invoked the authority of the very order from which he had appealed, and when the mortgagor applied for an injunction to restrain the sale, the appellant set up the order as evidence of his right to sell. Under these circumstances, he cannot be permitted to question the validity of the order. A party may either expressly or impliedly waive a right, or advantage, which he might have enforced in proper time and manner. Belt, Administrator v. Blackburn, Administrator, 28 Md. 227. The Court will not permit the mortgagee to rely upon and claim the benefit of the order appealed from, and at the same time to assail its validity.
"... the appellant, having subsequently to his appeal, recognized, relied upon and taken the benefit of the order of July 26th, 1907, will be held to have waived all objections which he might have successfully urged against it. By availing himself of the benefit of the order he thereby elected to abide by its validity. For these reasons the appeal will be dimissed.” Id., 318, 319.

Maryland’s highest appellate court has also held that a party may not maintain an appeal from an order ratifying an audit and at the same time require and receive his share of the funds distributed under the audit which is the subject of the appeal. Bowers v. Soper, 148 Md. 695. At 697 the Court stated,

"Any right which Mr. Shirk may have had, in his individual capacity as a party, to appeal from the order ratifying the audit, has been waived by his request, with which the trustees complied, that the funds be distributed as the audit prescribed. Upon the plainest principles of estoppel, he is prevented from successfully disputing a disposition of funds thus made with his consent.”

A party cannot treat as conclusive that part of a decree with which he is in agreement and appeal another part with which he is not in accord. Kicherer v. Kicherer, 285 Md. 114, 400 A.2d 1097 (1979). At page 118 the Court of Appeals stated this principle with the following language:

"In the case now before us, each guardian-designate, after filing a notice of appeal, signified his acceptance of the trial court’s decree and his appointment under it by submitting his bond, thereby qualifying as, and becoming, a guardian. See Md. Code (1974), § 13-206 (a) of the Estates and Trusts Article. Having acknowledged the conclusiveness of the portion of the decree that was in accord with his wishes, neither fiduciary can now complain on appeal concerning the component of the order that, contrary to his preference, designates a co-guardian. Thus, even assuming that the adversary guardians here could obtain review of the issues they seek to prosecute in this appeal, each has forfeited his right to present further his contentions and we will dismiss the appeals as moot. Md. Rule 835 a 6.”

Stated another way under different circumstances,"... an appellant cannot take the inconsistent position of accepting the benefits of a judgment and then challenge its validity on appeal.” Acting Dir., Dept. of F. & P. v. Walker, 271 Md. 711, 716 (1974). However, as Judge Smith pointed out in that case in quoting from Shapiro v. Md. Nat. Park Comm., 235 Md. 420, 201 A.2d 804 (1964):

"This is the general rule. (Citations omitted). There is an exception to this rule 'where the right to the benefit received is conceded by the opposite party, or where the appellant would be entitled thereto in any event’....” 271 Md. at 716.

In its reply brief appellant in response to the Motion to Dismiss exhorts,

"Leasecorp denies that any such purchase option was intended or that any mistake was made by it.”

Yet in the original Bill of Complaint filed in the Circuit Court for Howard County the appellant pleads,

"... and Plaintiff, in consequence, (of the decree under appeal) was mistaken as to a material fact in connection with its agreement to reduce monthly rental payments. ...”

and further that it

". . . is unconscionable and would permit Cherry Hill to reap a windfall on the basis of a material mistake made by plaintiff in agreeing to reduce the rental payments....”

In addition, on the same page of the reply brief containing the above exhortation the appellant states that it agreed to the sale of the two graders and the rent reduction

"... on the assumption that it would receive the residual value attributable to the Excavator at the end of the lease.”

A careful reading of the amended complaint makes it clear to this Court that the basis for the action is the reformation decree. It is clear that the basis for the "material mistake made by the plaintiff in agreeing to reduce the rental payments” is based on the reformation of the option agreement in the decree. The appellant cites Franzen v. Dubinok, 290 Md. 65, as authority for the general rule "that a party may lose the right to appeal if that party voluntarily and intentionally accepts a benefit from, acquiesces in, or recognizes the validity of the judgment or decree being appealed or acts in a manner inconsistent with the maintenance of an appeal.” The Franzen court cited and quoted this general rule from Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531, 541 (1966) and concluded,

"... that a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.”

The four part test set out in Rocks, supra, is in the alternative. It provides that if the appellant 1) accepts a benefit from or 2) acquiesces in or 3) recognizes the validity of the judgment or decree or 4) acts in a manner inconsistent with the maintenance of the appeal, the appeal must be dismissed.

The appellant first argues that it "has not voluntarily and intentionally received a benefit from the reformation decree,” and asservates that in Maryland there has never been a dismissal of an appeal because of waiver or estoppel "except where the appellant has purposefully sought and actually received a benefit or right specifically provided in the very order being appealed.” In Stewart, supra, the Court of Appeals did not decide the case on the basis of the actual receipt of a benefit but rather the acquiescence in and the invocation of the authority of the order which was the subject of the appeal. The "benefit” to which the Court of Appeals referred in Stewart was the use which the appellant made of the order in exerting his right to sell the property after the default, subsequent to the order. In Stewart there had not been a sale but only an advertisement of the sale of tbe property under the authority of the order from which the appellant appealed. There may be either express or implied waiver. 107 Md. at 319.

In Bowers, although funds were distributed, the waiver was based on "his request... that the funds be distributed.” Mr. Shirk certainly received a financial benefit in Bowers but the waiver was not based on the financial benefit but rather on his acquiescence, invocation and recognition of the order ratifying the audit. Although the Bowers court went on to point out that "upon the plainest principles of estoppel” the appellant

"... is prevented from successfully disputing a disposition of funds thus made with his consent”,

the waiver was based upon his request that the funds be distributed and, therefore, upon his invocation of the authority of the order and not the result brought about by the invocation of the order. See Bowers, supra, at p. 697.

In Kicherer, supra, the Court concluded that the two co-guardians after accepting their appointments could not maintain appeals contesting the appointment of each other when the subject of the appeal was the very order under which they accepted their respective appointments. The waiver in Kicherer was not based on the fact that each had been appointed co-guardian but rather on the acceptance by each of them of their respective co-guardianships.

The final argument of the appellant on the Motion to Dismiss is that it "has not acquiesced in or recognized the validity of the reformation decree or acted in a manner inconsistent with this appeal.” Based on our review of the law and a careful reading of the amended complaint, it is clear to us that the appellant has performed "a voluntary act ... which is inconsistent with the assignment of errors on appeal (which) precludes that party from obtaining appellate review.” Franzen, supra, at p. 69.

The appellant’s arguments, supra, are totally inconsistent with the allegations made in the amended complaint, e.g.:

"5. On . June 8, 1981, in a suit instituted by Defendant against Plaintiff in the Circuit Court for Baltimore City entitled Cherry Hill Sand & Gravel Co., Inc. v. First Maryland Leasecorp (A-59669/A-321/1980) after Defendant refused to return the Excavator to Plaintiff at the end of the lease term and denied Plaintiffs right to the residual value of the Excavator, the Circuit Court for Baltimore City reformed the Equipment Lease on the basis of a mutual mistake of fact to include Paragraph 5 of Schedule 3 an option on the part of Cherry Hill to purchase all three (3) items of equipment for the sum of Nine Thousand Four Hundred Ninety Dollars and Ninety-Three Cents ($9,490.93). A true and accurate copy of the decree order of the Circuit Court for Baltimore City is attached hereto as Exhibit 3, and incorporated by reference herein. Plaintiff contends that the decision of the Circuit Court for Baltimore City is incorrect and is in error, and Plaintiff has appealed the entry of this decree to the Maryland Court of Special Appeals.
6. As a result of the actions of Defendant in challenging and contesting Plaintiffs right to the residual value of the Excavator and in instituting the suit in the Circuit Court for Baltimore City and as a result of the decree of the Circuit Court for Baltimore City reforming the Equipment Lease to include an option on the part of Cherry Hill to purchase the three (3) items of equipment, a material assumption of Plaintiff in agreeing to reduce the monthly rental payments due from Cherry Hill over the term of the lease proved false and incorrect and Plaintiff, in consequence, was mistaken as to a material fact in connection with its agreements to reduce the monthly rental payments due from Cherry Hill under the Equipment Lease after the sale of the two (2) motor graders and rippers.”

The foregoing excerpt clearly establishes that the appellant has, at the very least, acted in a manner inconsistent with the maintenance of the appeal to attempt to obtain a benefit from the reformation decree that is the subject of this appeal. This action of the appellant is an acquiescence in and a recognition of the validity of the decree for its own purposes while it is at the same time attacking that very validity in the Court. This we cannot permit.

Although, because of the foregoing, we do not reach the substantive questions raised in this appeal, our review of the evidence and the law leads us to believe that the action of the trial court would have been affirmed had we decided the substantive questions.

Appeal dismissed; costs to be paid by appellant.


text:
    HUGH HARTMAN BALDWIN, JR. v. STATE OF MARYLAND
    [No. 1179,
    September Term, 1981.]

      Decided May 6, 1982

    The cause was argued before Liss and Wilner, JJ., and Clayton C. Carter, Associate Judge of the Second Judicial Circuit, specially assigned.

      Barbara Mello for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Sidney S. Campen, State’s Attorney for Talbot County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

In May, 1978, a two-year investigation by State and Federal authorities culminated in the issuance and execution of search warrants for the Atlantic Glass Factory in Easton (Talbot County) and a farmhouse located on Route 662 in Kent County. Among the items found and seized during the raids was a large quantity of Phencyclidine, a controlled dangerous substance (CDS).

On July 12, 1978, an eight-count criminal information was filed against appellant in the Circuit Court for Talbot County, charging him, at each of the two locations, with (1) unlawfully possessing a CDS (Phencyclidine) in sufficient quantity to indicate an intent to manufacture, distribute, and dispense the same; (2) manufacturing a CDS (Phencyclidine); (3) possession of machines, equipment, and implements adapted for the production of a CDS; and (4) maintaining a common nuisance. See Md. Code art. 27, § 286 (a) (1), (4), and (5).

Following a variety of pretrial motions, including motions to suppress evidence seized in the raids, appellant was tried before a jury in the Circuit Court for Cecil County, to which the case had been removed because of prejudicial pretrial publicity. After three days of trial, appellant was convicted on seven of the eight counts, for which he was sentenced to a total of thirty-five years in prison (seven of which were suspended) and fined $105,000.

On appeal we reversed the convictions, concluding that the motions to suppress the evidence seized in the raids should have been granted. Baldwin v. State, 45 Md.App. 378 (1980). The search warrants authorizing the raids were invalid, we said, because they rested upon information obtained through illegal wiretaps. We therefore remanded the case for retrial on the seven open counts. The State, disagreeing with our conclusions, sought review in the Court of Appeals. On March 10,1981, that Court affirmed what we had done, State v. Baldwin, 289 Md. 635 (1981); and on April 13, 1981, the case was returned to the Circuit Court for Cecil County. (Appellant’s petition for writ of certiorari was denied by the Supreme Court of the United States on October 5, 1981. Baldwin v. Maryland, 454 U.S. 852, 102 S.Ct. 295 (1981).

Following our reversal of the initial convictions, while the further appellate proceedings were pending, appellant was released from prison on $100,000 bond. The bond was secured by property owned by appellant’s parents and was conditioned upon appellant residing with his parents, remaining gainfully employed, and not leaving the State of Maryland.

On June 4, 1981, the assignment clerk commenced the retrial process by scheduling an "initial appearance” hearing for June 15. On June 3, 1981, appellant applied to the District Public Defender for representation by his office at the retrial. Although his application is not in the record (being addressed to the District Public Defender), we were told at oral argument that it was on whatever form is required by the Public Defender’s Office and that the information supplied on it was under oath. That same day — June 3 — the District Public Defender declined representation on the basis that the appearance of private counsel had been entered for appellant and that the court had refused to permit that attorney to withdraw.

By June 5, that condition had changed. For reasons not clear in the record, private counsel withdrew his appearance. Notwithstanding that appellant was then without counsel, the District Public Defender continued to decline representation. On June 5, he wrote to appellant:

"Your Application indicates that you are released on bail of $100,000. This indicates that you not only have resources, but resources of a most substantial kind. In addition, it appears that you have a college education and no personal living expenses.
Under those circumstances, and because your trial has been postponed from June 15, 1981, we believe that you do not qualify for representation under the criteria established in Article 27A of the Maryland Code.”

As directed, appellant appeared before the court on June 15,1981, for his initial appearance. Because he was without counsel, the court went through the litany required by Maryland Rule 723, informing appellant (among other things) that he had a right to a lawyer, that a lawyer could render important help to him, and that if he was "too poor to hire a lawyer,” he could apply to the Public Defender. Aware of whát had already occurred, the court then, at appellant’s request, agreed to determine "if the Court will give you a free lawyer, even though the Public Defender does not.”

The court’s inquiry was conducted in an informal manner, with appellant and the District Public Defender simply stating their respective positions. Neither of them testified under oath and no independent evidence was offered.

Appellant spoke first. Recounting the history of his case, he represented that he still owed money to his former trial and appellate counsel and that he did not "have any money to hire an attorney.” Appellant also proffered that former trial counsel wanted a $20,000 retainer to conduct his defense at retrial and that two local attorneys, who "really didn’t want to handle the matter,” had informed him that "it would be very expensive to hire another lawyer in.”

In response, the District Public Defender related for the court the pertinent parts of appellant’s application for appointed counsel. Appellant had represented, he said, that until two months before he had been taking home $2,000 per year as a freelance photographer; that "[h]e had no other income, no bank accounts”; "that the only cash that he had was $2.20”; "that he owned no motor vehicles or stocks or bonds”; that he was not owed any money; that his father was in the electrical business and his mother was a school teacher; that he owed money to his former attorneys and to his parents; that he was free on a "$100,000 property bond, which : . . had been posted by his parents”; and that "he had completed sixteen years of school.”

He then gave his reasons for denying representation:

"[F]irst of all, our department or agency ... is severely limited in its resources. . . . [I]t is extremely important that we use great care in assigning lawyers . . . and it was our feeling in this case that Mr. Baldwin ... is most able and articulate.... [H]e’s been out on a $100,000 bail since last summer. He has no living expenses. It would certainly seem to me that. . . there’s little if any reason why he can’t go out and hire his own lawyer. There certainly are jobs available. Secondly, it seems to me that a $100,000 bail . . . that anybody who has that kind of resources, it certainly indicates that there’s more there. ... I was indeed overwhelmed when I read the Daily Record and saw . . . [t]here are six individual appearances and three separate law firms . . . listed... as having appeared on behalf of Mr. Baldwin [on appeal], ... I am certain that those fees were not inexpensive. . . . [I]t just seemed to me that we should not deploy our forces.. . because Mr. Hartman [sic, Baldwin]... is perfectly able to obtain counsel himself.”

The court then noted, sua sponte, that "[f]urther evidence of the economic status of the Defendant” could be derived from a consideration of the items seized in the raids conducted in May, 1978, which included some $17,000 in cash, promissory notes with an aggregate face value of $105,000, three boat titles, and a savings account passbook which appellant held "in conjunction with Shirley Baldwin, apparently the Defendant’s mother.”

Although recognizing that "if assignment of counsel is based entirely upon liquidity and immediately available resources . . . the Court would be correct in assigning you counsel free of charge,” the court nonetheless stated that it could not "remain oblivious and blind to circumstances and facts from which we can infer an ability to pay for representation.” Adopting what was essentially the Public Defender’s line of reasoning, the court thereupon declared appellant ineligible for appointed counsel. It stated that it could not ignore,

(1) "the status of the family . . . the fact that when the Court set bail upon remand of the case, bail was posted almost immediately in the sum of $100,000”;

(2) "the potential of a college graduate to earn a living, for all it appears the Defendant is living with his parents essentially expense-free”;

(3) "the Public Defender budget having been slashed from one and a quarter million to eight-tenths of a million dollars”; and

(4) "that this Defendant has been represented by three law firms in the past in this case in court.”

In conclusion, the court stated:

"The Court notes that the representation of the Defendant as to his entitlement to counsel free of charge was limited to the fact that he still owes other attorneys, and that one particular firm would want a $20,000 retainer to represent him. That his, extent of his contact with any other counsel has been, according to his testimony, with two Kent County lawyers who said representation would be expensive. But this was a generalization where there was no specific look at the case to see what was involved or what the fee might be.
And it is for all these reasons that the Court, consistent with the decision of the Public Defender in this case, denies the petition of the Defendant for a court appointed counsel free of charge, and will require the Defendant to provide his own legal representation or, at his option, to proceed without counsel.”

Trial was set for July 29, 1981 — six weeks hence. When it commenced, appellant was still without counsel. Once again, he asserted his inability to afford private counsel. In a typed statement, admitted as a court exhibit, appellant advised the court:

"I have no financial resources with which to hire an attorney and because the Court refuses to appoint me an attorney, I am without an attorney today....
The bond I am now on is a Property Bond which resulted from my parents putting up their house and property as collateral. My parents are unable to assist me financially in terms of hiring an attorney, I do not have any sevings [sic] to hire an attorney and any possible financial assets I do have claim to are in the possession of the Maryland State Police, who refuse to release such to me....
... I am completely unable to prepare my case for trial. I am not in any way, shape or form capable to represent myself in this case especially taking into account the complexities of this case such as wiretap orders, search warrants, and other technical legal issues. Because I do not know what to object to or what to say during a trial what evidence is admissible and what evidence is not admissible and how to ask questions of witnesses or for that matter how to even summons witnesses, I must again . . . request the Court to appoint me an attorney. . . .”

Nonetheless, finding that there had been "no change in circumstances since the last ruling ...,” the court denied appellant’s motion and proceeded to conduct the retrial without defense counsel. Other than appellant’s repeated protestations that he was "not competent to defend” himself and that he objected "to these entire proceedings,” he took no part in the trial, presented no evidence in his defense, and did not cross-examine any of the State’s witnesses.

From his conviction on four of the remaining seven counts, for which he was sentenced to a total of twenty years imprisonment (four years of which was suspended), $60,000 in fines, and five years probation, appellant noted this appeal, contending that

"The trial court abused its discretion, and thus denied [him] rights secured ... by the Sixth and Fourteenth Amendments of the Constitution of the United States, Article 21 of the Maryland Declaration of Rights, and Md. Code Anno., Article 27A, § 6 (f), in finding him not to be indigent and therefore not to be entitled to the appointment of counsel at public expense.”

Finding merit in his contention, we shall reverse the judgment of the court below and remand this case for yet another retrial.

I. The Right to Counsel

Unlike some of the other hallmarks of what we now regard as due process of law, the right of an accused to the assistance of counsel is of relatively recent origin. It did not come to us through the common law of England. Under early English common law, persons accused of felony were not permitted the assistance of counsel at trial. Even by the end of the Eighteenth Century, that prohibition had been relaxed only to the point of allowing the full participation of counsel in cases of high treason (or misprision thereof), and of permitting counsel to instruct a defendant as to points of law in other felony cases. See, in general, 4 Blackstone, Commentaries On The Laws Of England, ch. 27, 355-56 (Hammond ed. 1890); Plucknett, A Concise History Of The Common Law, 434-35 (5th ed. 1956); and compare Raymond v. State ex rel. Szydlouski, 192 Md. 602, 606 (1949).

Immediately upon Independence, Maryland abrogated whatever was left of the common law exclusion of counsel by inserting into its first Constitution, as part of art. 19 of the Declaration of Rights (1776) that "in all criminal prosecutions, every man hath a right ... to be allowed counsel.” Fifteen years later, a similar right was engrafted onto the Federal Constitution as part of the Sixth Amendment — that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”

For about 150 years, these Constitutional provisions were construed literally and narrowly. They afforded a defendant the right to have counsel if he could obtain counsel; but they did not require the participation of counsel, and they did not obligate the body politic to provide counsel for indigent defendants. See Raymond v. State ex rel. Szydlouski, supra, 192 Md. 602, so interpreting the Maryland provision; also Marvin v. Warden, 212 Md. 634 (1957); Wilson v. State, 284 Md. 664, 669 (1979).

The first major change in that thinking seemed to come with Johnson v. Zerbst, 304 U.S. 458 (1938), where, as characterized later in Betts v. Brady, 316 U.S. 455, 464-65 (1942), the Supreme Court construed the Sixth Amendment right "to require appointment of counsel in all cases where a defendant is unable to procure the services of an attorney, and where the right has not been intentionally and competently waived.” As Betts v. Brady made clear, however, the Sixth Amendment right of counsel applied only to Federal prosecutions. It was not to be regarded as a "fundamental right, essential to a fair trial,” and thus available to defendants in State prosecutions under the "due process” clause of the Fourteenth Amendment. Id. at 471.

Thus it was that, except in such egregious situations as spawned Powell v. Alabama, 287 U.S. 45 (1932), for example, the appointment of counsel for indigent defendants in State prosecutions remained a matter of legislative policy for the States, most of which, as the Betts Court noted, empowered their courts to appoint counsel "where that course seems to be required in the interest of fairness.” Id. at 472.

The "matter of grace” theory ended on March 18, 1963, when in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court expressly overruled Betts v. Brady and concluded that the Sixth Amendment right to counsel, as explicated in Johnson v. Zerbst, supra, applied with full force to State prosecutions through the "due process” clause of the Fourteenth Amendment. The right of an indigent defendant in State court to appointed counsel had been "Constitutionalized.”

The immediate response to Gideon was a change in Maryland Rule 719 b (see footnote 6, ante) to require the appointed of counsel for any accused "who is not financially able to obtain counsel [and who] requests assignment of counsel” in any case in which the charge carried a maximum penalty of six months or more imprisonment or a fine of $500 or greater. A secondary response was a growing interest in the creation of a public defender system as an alternative to individual court appointments.

Consideration of a public defender system gained momentum as the Supreme Court began to broaden the right to counsel beyond the trial itself, extending it further back into the pretrial investigatory and accusatory processes. The ultimate progenitor of a Statewide public defender system in Maryland, however, appeared to be Coleman v. Alabama, 399 U.S. 1 (1970), wherein the Supreme Court extended the Sixth Amendment right to counsel to preliminary hearings. That called directly into question the ability of the State to comply with its expanding Constitutional obligations, especially in the large metropolitan areas, solely through a system of court-appointed counsel. It culminated in the enactment of art. 27A by the 1971 General Assembly, creating a Statewide public defender system.

The new system made at least two significant changes from that which it replaced: (1) it was to be administered primarily by an Executive official -— the Public Defender — rather than by the individual trial and appellate courts throughout the State; and (2) whereas court appointments under the old system were paid for primarily by the counties (and Baltimore City), the new program was to be entirely State-funded through the Public Defender’s budget. Those changes prompted the Legislature to develop some standards for the program — criteria for determining eligibility for the appointment of counsel at public expense. Under the old system, there were no clear and universal criteria; with some exceptions, judges considering the appointment of counsel apparently used whatever standards they thought appropriate, and it does not appear that their determinations in that regard were ever disturbed on appeal.

The Legislature made clear in the very beginning of the new law (art. 27A, § 1) that its purpose was to implement the underlying Constitutional mandate — "to provide for the realization of the constitutional guarantees of counsel in the representation of indigents ... in criminal and juvenile proceedings within the State....” It did this primarily by creating the office of Public Defender (§ 3) and stating that it was his "primary duty ... to provide legal representation for any indigent defendant, eligible for services under this article.” (§ 4 (a); emphasis supplied.)

It is, to some extent, unfortunate that the Legislature used both terms, "indigent” and "eligible,” because in the context of their use, there appears to be some overlap.

"Indigent,” as a noun, is defined in § 2 (f) as meaning,
"any person taken into custody or charged with a serious crime . . . who under oath or affirmation subscribes and states in writing that he is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation.”

Under that definition, a person is not an "indigent” by reason of what he is, but by reason of what he says he is. The real key to determining indigence (eligibility) is stated in § 7(a):

"Eligibility for the services of the Office of the Public Defender shall be determined on the basis of the need of the person seeking legal representation. Need shall be measured according to the financial ability of the person to engage and compensate competent private counsel and to provide all other necessary expenses or representation. Such ability shall be recognized to be a variable depending on the nature, extent and liquidity of assets; the disposable net income of the defendant; the nature of the offense; the effort and skill required to gather pertinent information; the length and complexity of the proceedings; and any other foreseeable expenses.” (Emphasis supplied.)

The initial determination, under the law, is to be made by the Public Defender; and to assist him in making it, § 7 (b) authorizes him to "make such investigation of the financial status of each defendant at such time or times as the circumstances shall warrant....”

Obviously cognizant that shifting sands of fortune might subsequently render inaccurate a previous eligibility determination, and also recognizing that time might not always permit a thorough investigation into the financial status of a defendant prior to the rendition of services, the General Assembly provided in art. 27A a comprehensive scheme whereby the Public Defender could obtain reimbursement from defendants later found able to pay for part or all of his services. Thus, § 7 provides in pertinent part:

(1) When services are provided to an eligible child (defined as a person under eighteen years of age), his parents shall be obliged to reimburse the Public Defender "in such amounts as they can reasonably be expected to pay,” § 7 (a);

(2) When a determination of eligibility cannot be made before services are rendered, the Public Defender may undertake provisional representation, with the defendant being obligated to reimburse the Public Defender if he is subsequently determined to be ineligible, § 7 (a);

(3) When a defendant has or expects to have the means to meet some part of the expenses, he shall be obliged to reimburse the Public Defender "in such amounts as he can reasonably be expected to pay,” § 7 (c);

(4) That a lien exists "on any and all real property or personalty in which the defendant shall have or acquire an interest, except for [his] residence . . for services rendered, § 7 (d);

(5) That the court may order a defendant to reimburse the Public Defender for services rendered as a condition "of any sentence, judgment, or stay of judgment... if the court finds that the defendant has the ability to make such reimbursement,” § 7 (g); and

(6) That the Department of Budget and Fiscal Planning "shall do all things necessary and proper to collect all moneys due ... by way of reimbursement for services rendered pursuant to [art. 27A].” § 7 (f).

In obvious recognition of the fact that the whole system has Constitutional underpinnings and that the courts must, of necessity, be the ultimate protector of those underpinnings, the Legislature provided in § 6 (f) of the law that "[n]othing in this article shall be construed to deprive any court.. . of its authority to appoint an attorney... where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under this article.” (Emphasis supplied.) See also Maryland Rule 723 b 6 and c 4.

II. The Court’s Responsibility

In Thompson v. State, 284 Md. 113 (1978), the Court of Appeals seemed to hold that if the Public Defender declines to represent a defendant — even on grounds of non-eligibility (as opposed to a potential conflict of interest) — the court has no authority to order him to provide representation. Upon that premise, the question before us is not whether the Public Defender erred in declining representation but whether the court was derelict in discharging its own responsibility to assure compliance with appellant’s Constitutional right of counsel, in accordance with its authority under § 6 (f) of art. 27A.

Section 6(f) does not specify, directly, either the procedure or the standard to be employed by the court. Thompson tells us that the court must "make its own independent determination whether a defendant is indigent and otherwise eligible to have counsel appointed,” id. at 129; but it provides little guidance as to how that determination is to be made.

Reading the statute (art. 27A) as a whole in light of its declared purpose, it seems clear to us that, in making its own independent determination of eligibility,

(1) The court must conduct its own inquiry into the matter. It is not restricted to the information relied upon by the Public Defender, or to the Public Defender’s evaluation of such information. Rather, the court should consider any information offered by the parties which may reasonably bear upon the defendant’s ability to afford private counsel, and make its own evaluation of the relevance and credibility of such information and the weight to be accorded it.

(2) The proceeding may be as formal or informal as the court directs. The court may require testimony under oath or it may simply hear from the parties and witnesses as it did here.

(3) The court must weigh the evidence before it and make its determination in accordance with the criteria set forth in § 7 (a). Although it may evaluate the evidence differently than the Public Defender, it must use the same statutory standards. That is evident not only from the whole scheme of art. 27A, but from the particular language used in § 6 (f). That section, as noted, authorizes the court to appoint counsel for "an indigent person entitled to representation under this article.” An "indigent person entitled to representation” is one declared "eligible” pursuant to the standards laid down in § 7 (a).

III. The Decision In This Case

The court signaled the error in its conclusion when it rejected the notion that "assignment of counsel is based entirely upon liquidity and immediately available resources,” and relied instead upon inferences of wealth for which there is no support in the record and upon resources over which appellant had no control. Section 7 (a) makes clear that a defendant’s financial ability must be measured in terms of his resources — the extent and liquidity of his assets, his disposable net income. The uncontradicted evidence in this record shows that appellant had no liquid assets and little or no disposable net income.

The court relied upon the "status” or presumed resources of appellant’s family, but except for the fact that the parents had earlier pledged their home as collateral for appellant’s bail bond, there was no evidence to show (1) what other resources they had, or (2) what part, if any, of them they were willing to commit to appellant’s defense. Absent clear evidence of some firm commitment by the family to devote their resources to appellant’s defense, those resources cannot be imputed to appellant or considered in determining his indigence because he has no right to or control over them. They are not his assets. See Knapp v. Hardy, 523 P.2d 1308 (Ariz. 1974); Sapio v. State, 223 So.2d 759, 761 (Fla.App. 1969); Keur v. State, 160 So.2d 546 (Fla.App. 1963); People v. Gustavson, 269 N.E.2d 517 (Ill.App. 1971); Schmidt v. Uhlenhopp, 140 N.W.2d 118 (Iowa 1966); State v. Jensen, 241 N.W.2d 557, 561-62 (N.D. 1976); 1 ABA Standards for Criminal Justice, Standard 5-6.1 (2d ed. 1980) and Commentary thereto; Stifler, supra, 54 Ill. B. J. at 875-77; Legislation Note, supra, 18 DePaul L. Rev. 254-55; and cf. United States v. Rubinson, 543 F.2d 951, 964 (2d Cir.), cert. den. 429 U.S. 850 (1976). The same principle holds true with respect to the assets seized in the raids. They were being held by the authorities subject to confiscation, and obviously were not available to appellant.

Nor can the fact that bond was posted for appellant be used as a ground to deny appointed counsel, especially when the bond was secured by the resources of persons other than appellant. See Annot., supra, 51 A.L.R.3d 1108, 1116 and cases cited therein; 1 ABA Standards, supra, Standard 5-6.1.

Appellant’s presumed employability forms no proper basis for denying appointed counsel on the state of this record. There was no evidence of substantial employment opportunities in the area; trial was scheduled six weeks hence; appellant had already once been convicted on major drug charges; and the conditions of his bond required that he live with his parents and not leave the state. Even if he could have found a well-paying job for six weeks, the evidence showed that private counsel insisted on a substantial retainer in advance before even becoming involved.

Finally, it goes without saying that reductions in the Public Defender’s budget and his desire to be frugal have no relevance whatever in the matter. The question is whether appellant was indigent, not the Public Defender. The court’s obligation was to uphold the Constitution in the manner directed by the statute and by Maryland Rule 723, and that obligation is not subject to or in any way dependent upon the level of appropriations received by the Public Defender. See Bramlett v. Peterson, 307 F.Supp. 1311, 1317 (M.D.Fla. 1969), citing Phillips v. Cole, 298 F.Supp. 1049 (N.D.Miss. 1968).

The fact is that there was no evidence to support the court’s determination that appellant was financially able to provide private counsel. Indeed, the only relevant evidence was directly to the contrary. If, because of some unarticulated suspicion that appellant had command over resources that could be devoted to the obtention of private counsel, the court was in any way in doubt about the matter of his indigence, it should have heeded the advice we gave in Laquay v. State, 16 Md.App. 709, 725 (1973): "It is suggested that if there be real uncertainty, it be resolved by providing the assistance of counsel rather than denying it.”

By declining to appoint counsel, the court failed to discharge its responsibility under § 6 (f) of art. 27A, proceeded to trial in contravention of Maryland Rule 723, and thus effectively denied appellant his Federal and State Constitutional right to counsel.

Judgments reversed; case remanded for retrial; Talbot County to pay the costs.

      . The jury acquitted appellant of the sixth count — manufacturing a CDS (Phencyclidine) at the Route 662 farmhouse.

      . As a prelude to advising appellant of his various rights under Maryland Rule 723, the court told him that he was to be retried on only three of the seven counts upon which the case had been remanded — counts 5, 7, and 8, all dealing with the Route 662 farmhouse. The court stated that the maximum penalty on those counts was five years in prison and a $15,000 fine, "or a total maximum penalty of fifteen years and $45,000 fine.” Those statements were not correct. Appellant, in fact, was retried on all seven open counts; he was convicted on four of them (counts 4, 5, 7, and 8), and was sentenced to a total of twenty years in prison (four of which were suspended) and fined $60,000. Although that presumably innocent misrepresentation may well, of itself, have been grounds to invalidate the subsequent proceedings, appellant has not complained of it in this appeal, and so we shall not further address the matter. Maryland Rule 1031; Jacober v. High Hill Realty, Inc., 22 Md. App. 115, cert. den., 272 Md. 743 (1974).

      . Appellant protested the consideration given these items, noting that they were being held by the authorities and were thus not available to him. Furthermore, even if they were available, appellant represented that the items were worth little, if anything. The notes were said not to be "worth the paper they’re written on,” and the boats, two of which were said to "leak,” were reported to be worth "a hundred dollars, a hundred-fifty dollars at the most.”

      . Although the State attempted to make a case against appellant on the remaining counts of the information, in the absence of the evidence which we held inadmissible in the earlier appeal, it was only able to obtain a guilty verdict on one of the four counts involving the activities at the Atlantic Glass Company (maintaining a common nuisance). The other guilty verdicts were on the three open counts relating to activity at the Route 662 farmhouse.

      . Compare Powell v. Alabama, 287 U.S. 45 (1932), where the Court noted the statutory right to appointed counsel in Federal proceedings and concluded that, under certain circumstances, a denial of appointed counsel could amount to a denial of the broader right to due process of law.

      . Maryland first adopted that approach in 1886 when the General Assembly authorized the Circuit Courts and the Criminal Court of Baltimore, at public expense, to "appoint counsel to defend any person in the trial of any criminal case in said Courts, whenever, in the judgment of the Court in which any such case is pending, a just regard for the rights of the accused requires it.” Acts of 1886, ch. 46, § 1.
      The statute did not confer a right to appointed counsel, only the discretionary authority of the court to make such an appointment; and generally, the Court of Appeals did not disturb the trial court’s exercise of its statutory discretion. See Knott v. Warden, 200 Md. 658, cert. den. 344 U.S. 847 (1952); Smith v. State, 180 Md. 529 (1942); Raymond v. State ex rel. Szydlouski, supra, 192 Md. 602. Compare, however, Coates v. State, 180 Md. 502, cert. den. 317 U.S. 625 (1942), where the Court, at p. 509, noted that "[a] trial for a capital crime, or other extremely serious crime, without having counsel appear for the prisoner (unless he refused it, perhaps), would be so contrary to the sense of justice of the community, and so far out of accord with the practice in the courts, that it would probably have been taken as an injustice that needed correction in some manner”; and see Jewett v. State, 190 Md. 289 (1948), where the Court, though declining to make the appointment of counsel a Constitutional right, suggested, at p. 297, that "the wise practice, in any serious case, is to appoint counsel” — unless the accused waives the appointment.
      In 1949, as part of the first Criminal Rules of Practice and Procedure (Part IV, G.R.P.P.), the Court of Appeals made firm and binding the principle enunciated in Coates and suggested again in Jewett. Criminal Rule 1(b) required that if a defendant appeared at arraignment without counsel, "the court shall, in all capital cases or other serious cases, assign counsel to defend him.” See Hill v. State, 218 Md. 120 (1958), reviewing the history of Criminal Rule 1(b). That remained the law until January, 1962, when the Court amended the Rule (then appearing as Maryland Rule 719b) to provide that, unless the accused "elects to proceed without counsel or is financially able to obtain counsel,” the court "shall” assign counsel if the offense charged carried a sentence of death or imprisonment for five years or more, and "may” assign counsel in any other case. The new Rule permitted the court to require a claim of indigency to be "verified by a sworn statement in such form and with such content as the court designates.”

      . See, for example, United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967), providing the right to counsel at lineups; Miranda v. Arizona, 384 U.S. 436 (1966), right to counsel at custodial interrogations; Hamilton v. Alabama, 368 U.S. 52 (1961) and White v. Maryland, 373 U.S. 59 (1963), right to counsel at arraignment. As a response to this growing trend, legislation was proposed in the General Assembly as early as 1967 to study the efficacy of a public defender system (see SR 2, SR 30 (1967)), followed in each subsequent year by bills to create such a system. See SB 150, HB 336, HB 1337, HB 1338 (1968); SB 33, SB 298, SB 543, HB 165 (1969); SB 711 (1970). In July, 1970, the Governor appointed a Commission chaired by the Attorney General to study a public defender system, which worked in conjunction with a special committee of the Baltimore City Bar Association. In 1967, Montgomery County created a local public defender system followed by Harford and Frederick counties, and in 1970, the Legal Aid Bureau in Baltimore City established an interim public defender operation.

      . In an appendix to a 1970 Report by the Legal Aid Bureau, Inc. with respect to its Interim Defender Program September 7, 1970 through January 15, 1971, it was estimated that there were 16,800 indigent criminal defendants being processed in the then-Municipal Court of Baltimore (the forerunner of the District Court) and that less than 10,000 were being represented by counsel. Of the 5,000 such defendants whose cases were transferred to the Criminal Court of Baltimore, it was estimated that only about half were afforded counsel in the Criminal Court. See Appendix C to the Report.

      . For discussion of the problems and complexities which confronted courts faced with the task of determining eligibility for appointed counsel, see generally Legislation Note, Eligibility for Appointed Counsel in Criminal Cases: Proposed Standards and Determination Procedures, 18 DePaul L. Rev. 243 (1968); Comment, The Definition of Indigency: A Modern-Day Legal Jabberwocky, 4 St. Mary’s L. J. 34 (1972); Fortune, Financial Screening in Criminal Cases — Impractical and Irrelevant, 1973 Wash. U. L. Q. 821; Stifler, Determining the Financial Status of an Accused, 54 Ill. B. J. 868 (1966); Harlan, Determining Indigency in Texas: Findings from Preliminary Research, 3 Am. J. Crim. L. 1 (1974); Rothstein, Criteria for the Appointment of Counsel in Massachusetts Criminal Cases, 6 Suffolk U. L. Rev. 855 (1972); Comment, Determination of the Right to Counsel, 5 Willamette L. J. 663 (1969); Annot., Determination of Indigency of Accused Entitling Him to Appointment of Counsel, 51 A.L.R.Sd 1108 (1973). Although the Court of Appeals occasionally reversed a trial court’s refusal to appoint counsel, few, if any, such reversals were based upon a disagreement as to whether the defendant was indigent.

      . The term "serious crime” is defined in § 2 (h) as including any felony or a misdemeanor for which imprisonment for three months or more or a fine of $500 or more is possible.

      . See 284 Md. at 128: "The Public-Defender wanted to leave it up to the court, making clear that if the court so ordered he would provide representation. The court refused to so order, properly we believe, on the ground that the question whether the Public Defender represented a particular defendant was for the Public Defender and not for the court.” It would appear from this, by logical extension, that, although the court may appoint any other qualified counsel to represent an indigent defendant, it may not appoint the Public Defender against his wish.

      . We do not regard the reference to an oath or affirmation in § 2(f) as necessarily requiring that evidence before the court be under oath. That section requires only a general statement of indigence under oath, and presumably is satisfied when the defendant makes his application to the Public Defender.

      . According to the United States Department of Labor, the unemployment rate in Kent County (appellant’s home) was 10.6% in June, 1981, rising to 14% in July, 1981. See Employment and Unemployment in States and Local Areas, January - October, 1981, U.S. Dept, of Labor, Bureau of Labor Statistics (December, 1981).

      . It appears from language in Williams v. State, 292 Md. 201, 217-18 (1981), that the Court of Appeals has tacitly overruled its earlier decisions giving a narrow construction to art. 21 of the Maryland Declaration of Rights and has now equated the State provision with its Sixth Amendment counterpart, requiring the appointment of counsel for indigent criminal defendants.