author: Morton, J.,

text:
    GREYHOUND LINES, INC. v. RUBY ALDERSON et al.
    [No. 97,
    September Term, 1974.]

      Decided October 21, 1974.

    The cause was argued before Morton, Moore and Lowe, JJ.

      William H. Clarke and Matthew J. Kastantin for appellant.

      Samuel Intrater for appellees Ruby Alderson and Kenneth Alderson. Albert D. Brault, with whom were Brault, Scott & Brault on the brief, for other appellee.
   Morton, J.,

delivered the opinion of the Court.

We conclude that this appeal must be dismissed pursuant to the provisions of Md. Rule 605 a. because: (1) the issue of damages remains unresolved; (2) cross claims between the co-defendants, Greyhound Lines, Inc., and G. T. Koehler, remain formally undecided; and (3) an appeal cannot be taken from a verdict. As the issue of the prematureness of the appeal was not raised by any of the parties, we have no alternative but to act sua sponte.

The record indicates that multiple plaintiffs sued Greyhound Lines, Inc., which, in turn, impleaded Ronald C. Williamson and G. T. Koehler in a third party declaration for damages arising out of a traffic accident involving a Greyhound bus and the vehicles of the impleaded defendants. The plaintiffs subsequently amended their declaration over against the impleaded defendants. Because of the large number of parties to the suit, counsel for all parties stipulated that the issue of liability, more appropriately designated the issue of negligence, should alone be submitted to the jury in a bifurcated proceeding and that all parties would be bound by the determination of the jury as to the issue of negligence in any further proceedings.

At the close of all the evidence, the three defendants moved for directed verdicts as to both the original and cross claims. The motion was fully granted as to defendant Ronald Williamson, and his cross claim against the remaining two defendants dismissed. The record reflects that final judgments were duly docketed regarding Williamson and he does not appeal any decision of the lower court.

In contrast, the trial judge (Couch, Jr., J., presiding) reserved his ruling on the directed verdict motions of Greyhound Lines, Inc., and Koehler and permitted the issue of negligence to go before the jury. The jury returned a verdict in the “liability trial” on the special issue and found Greyhound Lines, Inc., and Koehler guilty of negligence. The trial judge, after a hearing, denied the motions of Greyhound Lines, Inc., and Koehler.

It is in this procedural posture of the cause below that Greyhound Lines, Inc., comes before us as the appellant asserting, essentially, that its motion for a directed verdict on the issue of negligence should have been granted. Alderson, et al., plaintiffs below, appear as appellees, as does Koehler.

There is, however, no indication in the record of any subsequent “damages trial,” and we were advised at oral argument that no such trial has been held. Thus, we can only conclude that the issue of damages and the cross claims of Greyhound Lines, Inc., and Koehler are pending and unresolved.

Our holding in Knight v. Tolson, 10 Md. App. 311, would appear to be dispositive of the case at bar. There, passengers who had been injured in a two car collision sued both drivers at law for damages due to negligence. On trial day a stipulation was filed, pursuant to Md. Rule 501, severing the issue of liability for negligence from the issue of damages. The “liability trial” then proceeded before a jury. At the conclusion of the evidence a directed verdict was granted in favor of one of the defendants. Plaintiffs, aggrieved by the granting of the directed verdict, filed an appeal. As there was no request of the trial judge for an express determination allowing such an interlocutory appeal in accordance with Md. Rule 605 a, we dismissed the appeal as premature. Judge Powers, speaking for the Court in Knight v. Tolson, supra, at 313-314, stated:

“Without such determination and direction the judgment in favor of Tolson [the defendant who received a directed verdict in his favor] remained subject to revision at any time before the entry of judgment adjudicating all the claims. Maryland Rule 605 a. The appeal from it was premature.
“The issue of damages in this case remains unresolved. We note that there should have been an entry of interlocutory judgment in favor of the plaintiffs against the defendant Ronald Lester Knight, to be extended after an inquisition to determine the damages sustained by the plaintiffs, in accordance with Maryland Rule 648.”

This Court there acted sua sponte, without any motion from the parties, feeling it had “no alternative but to dismiss the appeal.”

Knight v. Tolson, supra, has been cited with approval in Flores v. King, 13 Md. App. 270; Burns v. Goynes, 15 Md. App. 293; and Frericks v. Baines, 16 Md. App. 343.

Aside from Knight v. Tolson, supra, the most apposite factual situation involving Md. Rule 605 a in this Court arose in Burns v. Goynes, supra. There, a suit for damages as a result of an automobile collision had been heard before a jury, which found for the defendants. The plaintiffs, however, had duly moved for directed verdicts at the close of all the evidence and the trial judge had reserved his decision on the plaintiffs’ motion. Md. Rules 552 c, 563 a 2. The trial court subsequently entered a directed verdict, as to negligence only, in favor of plaintiffs and, accordingly, decreed a new trial on the issue of damages. Before the trial as to damages was held, defendants appealed.

This Court entertained the appeal, feeling that the case had been, properly submitted to the jury originally and held that a trial on the issue of damages for plaintiffs would serve no purpose in view of our finding. Nevertheless, Chief Judge Orth speaking for the Court in Burns v. Goynes, supra, stated at 304:

“We entertain this appeal only because of the unusual circumstances existent. Normally we would dismiss it sua sponte because there is no final judgment, the issue of damages remaining unresolved. There was no express determination by the trial court that there was no just reason for delay and no express direction for the entry of a final judgment. Rule 605 a. See Rule 1035 * * * (citations omitted) * * *.
We determine the appeal here only because it would violate the expressed purpose of the Rule not to do so. We think it against the orderly administration of justice in the exceptional circumstances here to remand the case and have a jury impaneled to ascertain damages in the face of the jury’s verdict for the defendants-appellants when we feel the case was properly submitted to the jury and would so hold on a subsequent appeal. But our action here is not to be construed as a viable exception to the principle that an- appeal lies only from a final judgment or a reflection on the integrity of the previous opinions applying the rule. It is simply that we do not believe there should be a war between the technical procedures of the law and common sense which strict adherence to the Rule would in this unique situation initiate.”

It would appear, moreover, that the rigors of Md. Rule 605 a have become stricter in light of a very recent trilogy of decisions, and that Burns v. Goynes, supra, must now be confined to its exceptional circumstances.

In Harlow v. Blocher, 257 Md. 1 (cited in Knight v. Tolson, supra), a hearing had been ordered in the trial court on a separable issue of waiver pursuant to Md. Rule 501. At the same time, the court decreed a summary judgment determining a limitations claim in the action. At this point, prior to the hearing on the issue of waiver, parties adversely affected by the summary judgment on limitations lodged an appeal from that determination to the Court of Appeals. The appeal was dismissed and returned to the lower court, the Court of Appeals (Hammond, C. J.) noting that no Md. Rule 605 a certification had been made and observing that “* * * the suit below may have been instituted too late but the appeal certainly was taken too soon.” Harlow v. Blocher, supra, 2.

The same case later came up on appeal to this Court under the caption Harlow v. Schrott, 16 Md. App. 31. We entertained the appeal. The waiver issue which had brought about the initial reversal had been tried below and we vacated the order granting summary judgment because of limitations. At the same time, we recognized the claim of one litigant that because of still pending claims below the appeal should be barred as premature, Md. Rule 605 a, holding, however: “[b]ut at oral argument of the case, all parties urged that we consider the limitations question on its merits, rather than to dismiss the appeal as premature. We think the circumstances of the case are sufficiently unusual that the purposes of the Rule are not violated by our determination of the essential merits of the case. See Burns v. Goynes, 15 Md. App. 293.” Harlow v. Schrott, supra, 43.

The Court of Appeals then granted certiorari in the case under the caption Blocher v. Harlow, 268 Md. 571. Our holding was reversed and the appeal dismissed as being premature and not in compliance with the procedures mandated by Md. Rule 605 a. The Court observed (Smith, J.) at 576-578:

“The issues against the Kings [one of the appellees] remained to be tried. One might suppose that having been once exposed to Rule 605 a through the dismissal of the appeal in Harlow v. Blocher, 257 Md. 1, that this time the thought might have occurred to counsel for the parties that it might be wise to make inquiry of the trial judge as to whether in his role of ‘dispatcher’ he regarded the matter as ripe for review on appeal, but such was not the case. * * * It thus would appear that counsel did not take seriously our chiding of the bar for its disregard of the rules and our advice to the bar that the rules are not guides to the practice of law, but precise rubrics established to promote the orderly and efficient administration of justice which are to be read and followed (citations omitted).
“Under Rule 605 a, * * * the trial judge is expected to be the ‘dispatcher’ and ‘to determine, in the first instance, the appropriate time when each “final decision” upon “one or more but less than all” of the claims in a multiple claims action is ready for appeal.’ * * * No such determination was made here. The order appealed from was not a final order nor does it fall within the category of interlocutory orders from which an appeal may be maintained. Therefore, the appeal must be dismissed. (Citations omitted.) It is elementary that parties may not confer appellate jurisdiction by consent upon this Court or the Court of Special Appeals. Accordingly, we shall remand the case to the Court of Special Appeals for the purpose of entering an order dismissing the appeal.”

Noting, inter alia, that the same cause had come before it and had been dismissed in Harlow v. Blocher, supra, the Court of Appeals went on to express its opinion, pursuant to Md. Rule 885, as to the disputed limitations claim in order to “avoid the expense and delay of another appeal.”

We observe that a distinction has, apparently, emerged in the law regarding the applicability of Md. Rule 605 a to judgments by default. See J. C. Penny Co., Inc. v. Harker, 23 Md. App. 121 where Chief Judge Orth, for the Court, reviews the appealability of default judgments (pp. 124-130).

As we noted above, it further appears in the case at bar that Greyhound Lines, Inc., originally impleaded Ronald Williamson and G. T. Koehler in a third party declaration. By an amended declaration, plaintiffs later joined Williamson and Koehler as co-defendants. Meanwhile, cross claims were filed among the co-defendants. The record does not reflect that the cross claims of Greyhound Lines, Inc., and Koehler have been formally resolved and, presumably, they are still pending below. The pendency of these cross claims without a certification by the trial judge below pursuant to Md. Rule 605 a, of course, further establishes the prematureness of the appeal.

Finally, no judgment nisi was entered on receipt of the verdict as to the special issue nor, therefore, due recordation of a judgment absolute. An appeal will not lie from a verdict. Merlands Club v. Messall, 238 Md. 359.

Thus, we find no alternative but to dismiss this appeal.

Appeal dismissed.

Costs to abide the final result.

      . Md. Rule 605 a provides:
      “Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”
      The record shows no “express direction for the entry of a judgment” nor “an express determination [by the trial court] that there is no just reason for delay.”

      . See Peroti v. Williams, 258 Md. 663, and Burns v. Goynes, 15 Md. App. 293, for a discussion of the distinction between “liability” and “negligence.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    IRVING V. M. ABB v. MARGUERITE C. CROSSFIELD
    [No. 99,
    September Term, 1974.]

      Decided October 21, 1974.

    The cause was argued before Morton, Moore and Lowe, JJ.

      John S. Mclnerney for appellant.

      Arthur B. Hanson for appellee.
   Lowe, J.,

delivered the opinion of the Court.

On July 16, 1963 Marguerite Cary Abb on behalf of her infant daughter, Mara Abb, filed a Complaint for Initiation of Reciprocal Support Proceedings in the District of Columbia Court of General Sessions. She was a resident of the District, her “former husband, Irving V. M. Abb, a resident and member of the Bar of Maryland. They had been married on February 24, 1950 in Annapolis. Mara was born on December 30,. 1953 and her parents were divorced December 20,1957 by decree awarded by the Second Judicial District Court of Nevada. The record indicates that copies of the decree and the separation agreement which had been incorporated therein, were admitted into evidence at the hearing on the complaint.

On July 22, 1963, Judge Joseph C. Waddy found that the defendant had a duty to support his daughter and recommended support payments of $325 per month. He ordered that the necessary papers be forwarded to the responding State of Maryland for further proceedings under the Uniform Reciprocal Enforcement of Support Act, (URESA) Md. Code, Art. 89C. Although the Complaint and affidavit of Mrs. Abb appear in our sparse and disordered record, the decree and separation agreement do not. Whether they were forwarded to Maryland with the other documents is uncertain.

An evidentiary hearing was held on November 26, 1963 in what was then the Montgomery County People’s Court for Juvenile Causes, Judge Alfred D. Noyes presiding. Mr. Abb personally appeared, while Mrs. Abb was represented by private counsel. The “formal record” of the hearing consists of the court reporter’s transcribed summary of the proceedings. Significantly, she wrote that:

“Mr. Abb told the Court there is no question as to his duty to support the child . . . .”
. .. “They had a separation agreement which was kept for some years, but then she started changing her living arrangements so often. He is perfectly willing to keep up with this separation agreement.”

According to the reporter, at the conclusion of the hearing, the Court:

“ . . . advised that because there is no testimony regarding the needs of anything further than the separation agreement an order should be entered in that amount.”

Contrary to his acknowledged responsibility, during the years which followed, Mr. Abb was regularly in arrears on his support payments despite his expressed intentions, and was frequently brought before the court on contempt proceedings.

On January 19, 1973 Mrs. Abb petitioned the Circuit Court of Montgomery County — which had assumed jurisdiction for URESA actions on July 1, 1972 — for increase in child support. Following a hearing on the petition at which evidence of Mara Abb’s expenses was introduced, Judge Joseph M. Mathias found that both Mara Abb’s needs and defendant’s ability to pay had increased. On May 25, 1973 he ordered Mr. Abb to pay $450 per month from February 1, 1973 onward and $500 for plaintiff’s legal fees.

On June 4, 1973 Mr. Abb filed a suggestion of majority with the court pointing out that Chapter 651, Laws of Maryland 1973, effective July 1, 1973, changed the age of majority in this State from 21 to 18, and that the dependent Mara Abb was over 18. Mr. Abb then ceased support payments and was held in contempt by Judge Philip M. Fairbanks on December 21,1973.

ISSUES

The Court of Appeals in Zouck v. Zouck, 204 Md. 285, 300 alludes to the Uniform Reciprocal Enforcement of Support Act as evidence of a Legislative policy favoring “liberality toward the enforcement in Maryland of the claims of non-resident wives and children entitled to support.” Despite that policy of liberality appellant claims that Mrs. Abb, having chosen to introduce her Nevada decree and support agreement as evidence of a “duty to support” in a URESA action initiated in the District of Columbia, rather than directly instituting Maryland enforcement proceedings on her Nevada decree, cannot rely on the provisions of the incorporated support agreement requiring payments until her daughter’s 21st birthday to demonstrate the inapplicability of Maryland’s 18 year old majority law.

Decree and Support Agreement

As a preliminary hurdle, appellant suggests that the decree and separation agreement have “not been introduced into evidence at any hearing.” The record clearly indicates that the documents were introduced at the initiation phase of the proceeding in the District of Columbia. Although it is not certain that the documents themselves were forwarded to or introduced at the respondent phase of the proceeding in the Peoples’ Court, the reporter’s record explicitly relates appellant’s desire that the court order support in accordance with the agreement, and the court’s acquiescence in that request. Thus it is evident that Judge Noyes’ finding of Mr. Abb’s duty to support “imposed or imposable under the laws” of this State, Md. Code, Art. 89C, § 7, was predicated on evidence of the support agreement and Mr. Abb’s adherence to it.

The breadth of the language in the definitions included in the URESA makes clear that the act was intended to provide a convenient enforcement mechanism for a broad spectrum of “duties of support.” Md. Code, Article 89C, § 2 (g), explains:

‘Duty of Support’ includes any duty of support imposed or imposable by law, or by any court, order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial separation, separate maintenance or otherwise.”

The appellant correctly points out that Mrs. Abb could have sought enforcement of her decree and separation agreement in the Maryland courts as a foreign judgment. It does not follow, however, that the availability of that option should be construed as precluding a URESA action initiated in another jurisdiction. The very purpose of the Act is to enable a person to whom a duty of support is owed to enforce that duty without having to leave “the home jurisdiction. Adoption of appellant’s position would defeat the Legislative intent to provide convenient enforcement in every case where the parties had previously obtained a final judgment regarding support.

Equally unpersuasive is appellant’s contention that the adoption of Chapter 295, Laws of 1965, now §§ 31-39 of Art. 89C, providing for registration of foreign support decrees, affected Mrs. Abb’s URESA action. Art. 89C, § 31 specifically says:

“If the duty of support is based on a foreign support order, the obligee has the additional remedies provided in the following sections.” (Emphasis added).

Equitable Powers

Appellant, relying on Altemus v. Altemus, 18 Md. App. 273, argues that Art. 89C does not enable the hearing court to exercise general equity powers. It is difficult to discern how appellant finds support in Altemus for his proposition. There the Court of Special Appeals simply held that the Lord Mansfield Rule relating to testimony in certain paternity cases, Md. Code, Art. 16, § 66F (b), was superseded by the Md. Code, Art. 89C, § 21 provision making laws attaching a privilege against disclosure of husband and wife communications inapplicable in URESA actions.

More to the point, the Court of Appeals has held that proceedings under Md. Code, Art. 89C are equitable actions. Commonwealth of Pa. v. Warren, 204 Md. 467. After so declaring, the Court added:

“In this State a court of equity has the power and full right to decide without a jury every question of law and fact which may arise out of the subject matter before it and over which it has jurisdiction. . . .”

In McCabe v. McCabe, 210 Md. 308 the Court held a foreign alimony decree enforceable in equity in this State after pointing out:

“ . . . [I]f the wife in this case were . . . residing in another state and proceeding under the URESA against her husband who was in this State, the husband could be made to obey orders to support by sanctions available in equity.” McCabe, 210 Md. at 315.

These cases and a fair reading of Md. Code, Art. 89C, particularly § 25, suggest that the court in a URESA action has at its disposal whatever equitable powers are necessary to effectuate the purpose of the Act.

Accordingly, when the Circuit Court on May 25, 1973 modified the 1963 order by raising the amount of support from $100 per month, as provided by the support agreement, to $450 per month, it was properly exercising its equitable powers. Wooddy v. Wooddy, 258 Md. 224, 228.

Having established that evidence of the divorce decree and support agreement were properly relied on by the People’s Court in its support order, later modified by the Circuit Court, the age of majority question is easily resolved. The support agreement which formed the basis of the original order provided for Mr. Abb’s support payments:

“until the said child reaches her 21st birthday or becomes self-supporting.”

The explicit language of that agreement provision coupled with the subsequent July 1, 1973 effective date of the majority statute, Md. Code, Art. 1, § 24 and its undisputed prospective application, compel the conclusion that appellant’s support order is unaffected by the Act. Monticello v. Monticello, 271 Md. 168.

The two questions formally posed by appellant — whether there is an obligation to support a minor child after age eighteen and whether the separation agreement may be enforced — are both answered in the affirmative under the circumstances set forth.

The record reveals to us two disturbing facts. Appellant admits not having contributed to his daughter’s support since July 1, 1973. Delays and continuances brought forth a letter dated April 10, 1973, to the Clerk of the Circuit Court for Montgomery County in opposition to one of the requested continuances. Among the reasons for the opposition appears the following paragraph:

“No payments at all have been made by Mr. Abb under the existing Court order in this matter. Mr. Abb’s daughter is about to be dropped from the rolls of Catholic University because there are no funds available for this young lady’s tuition. Accordingly, this case must go before a judge if justice is to be served.

This is confirmed by unpaid tuition bills introduced in the case.

The record reveals that by repeated contempt proceedings and numerous continuances appellant has received justice through his “day in court” ten times over. The hour for reciprocal justice to Mara Abb should no longer be delayed. In affirming the judgment our mandate shall issue forthwith.

Judgment affirmed.

Mandate to issue forthwith.

Costs to be paid by appellant.

      . Upon subsequent remarriage her name changed to Marguerite Cary Crossfield.


author: Orth, C. J.,

text:
    DOROTHY HANDY and CARLO BUCCI v. STATE OF MARYLAND
    [No. 110,
    September Term, 1974.]

      Decided October 21, 1974.

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

      E. Thomas W. Stahl and VictorB. SobotJca for appellants.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Gerald Glass, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

DOROTHY HANDY and CARLO BUCCI were jointly tried at a bench trial in the Criminal Court of Baltimore on charges relating to the gambling laws. Handy was convicted of four offenses and Bucci of thirteen. Consecutive fines of $250 and costs were imposed on each conviction. Both appealed.

I

The charges against appellants were filed in the District Court, which was deprived of jurisdiction upon demand of the accused for a jury trial. Courts Art. § 4-302 (d). Handy was convicted under an arrest warrant and three statements of charges. Bucci was convicted under thirteen statements of charges. Maryland District Rule 702 a. The charges were all of the same nature. Both Handy and Bucci were accused of aiding and abetting violations of the bookmaking laws of Maryland as prohibited by Code, Art. 27, § 240. Handy was charged with aiding and abetting one William Crofoot (also sometimes spelled Crowfoot) to violate said laws on the 13th, 20th and 27th days of September and the 4th day of October 1973. Bucci w’as charged with aiding and abetting Crofoot to violate said laws on the 17th and 19th days of September and the 2nd day of October 1973, aiding and abetting one Salvatore D’Amico to violate said laws on the 11th, 14th, 17th, 18th, 22nd, 24th, 26th, 28th and 29th days of September 1973 and aiding and abetting Crofoot or D’Amico to violate said laws on the 15th day of September 1973. The charging documents set out that the accused “Was overheard to commit the below stated crime over the telephone number 685-9264 at 847 Fawn Street, Baltimore, Maryland. This interception was made pursuant to the execution of an Order of the Honorable Charles D. Harris, Dated September 10, 1973.” Copies of the Petition, Affidavit and Ex Parte Order were incorporated in the charging document by reference.

II

The State’s case was presented on a statement of facts. The Assistant State’s Attorney gave the court the following “factual basis” for the charges placed against the accused:

“On September 10th, 1973 Judge Charles D. Harris of the Criminal Court of Baltimore City signed an ex parte order authorizing the interception of oral communications over telephone number 685-9264 which telephone was subscribed to by the Little Italy Democratic Club and is physically located at 847 Fawn Street, Baltimore, Maryland. Interceptions commenced on September 11, 1973 and terminated on October 4th, 1973. During that period of time conversations involving the defendants before you were intercepted and recorded specifically for the charges placed or being tried at this time. Conversations involving Carlo Bucci were intercepted on September 11th, 14th, 17th, 18th, 22nd, 24th, 26th, 28th, 29th, 17th, 19th, and the 2nd of October. Conversations involving Dorothy Handy were intercepted and recorded on September 13th, September 20th, September 27th, and October 4th. The general pattern of activity as observed by the electronic surveillance of the above listed telephone number was as follows. Everyday, Monday through Saturday, at approximately twelve p.m. the telephone 685-9264 began to be used to receive calls involving wagers placed upon horse races that were occurring either in Florida, Maryland, Delaware, New Jersey and other tracks that were located in the United States of America. During the course of the day there would be an incoming call placed to 685-9264 which would be a one ring call. After one ring the call would stop and immediately thereafter on most occasions an outgoing call was then placed by a person from 685-9264 to a number 744-9010. The records of the telephone company would reflect that the number 744-9010 is located at 709 Frederick Road and is subscribed to by the Acme Nfews Service. The general pattern of activity after the call was placed to 744-9010 is as follows. A person either identified as Salvatore D’Amico or William Crowfoot would make a statement to the person answering the phone at the Acme News Service either by voice recognition or by beginning the statement what do you have or do you have a result of a certain race. The person on the other end would then give information which included the scratches for the day at certain race tracks, the post time at certain race tracks, if a race had been completed, the winning horses by number and amounts paid. The State wishes to bring to the court’s attention the significant part of the information provided by the sports service is the amounts of money which were paid which on every date that the State has called included the term the limit. For example, if a horse would pay $2.40 the person giving the information in the Acme News Service would say two forty, one eighty, whatever it would be. However, on every date which the State has later charged, the person giving the information would give some monetary figures but also the term the limit. The State has available to testify persons who have participated in the investigation who have had experience both practical and educational in the field of bookmaking and persons that would testify would state to His Honor that the term the limit has only one application to a horse racing industry. That term is to advise a bookmaker as to the maximum amount of money that should be paid out by the bookmaker on a bet that had been taken by the bookmaker. For example, experts, including Michael Gray, of the Baltimore City police are assigned now to C.I.D. Vice would testify that normally with the bookmaking operation in Baltimore City, there is a limit that a bookmaker will pay out on a daily double. The maximum odds normally paid out by bookmakers on the daily double would be fifty to one odds. The maximum that would be paid out by a bookmaker on a race other than a daily double would be approximately twenty to one odds. The difference in five one compared to two one is that in a daily double you have to have two winning numbers in the first and second race which decreases your chance of winning and the bookmaker would be free to give the higher odds with the less expected chance of paying out on those odds. Every call would indicate what post time was involved with a particular race. Now, the terminology used would be testified to by Michael Gray and others is that it was very important to a bookmaker to know if the post time had already elapsed or if it was coming up. The term for example, fifty-three was, means that the post time when the race went off, for example, was two fifty-three. The term fifty-three is means, for example, a race will go off at two fifty-three. The importance of the stating of the post time — I don’t know if His Honor saw the Sting or not — but the purpose of stating the post time is to prevent a bookmaker from being stuck with bets taken in after the horse race has either started or has been completed. For example, this would be evidenced by certain calls in which Mr. Bucci was a participant. For example, on 9/22/1973, Salvatore D’Amico was talking to Carlo Bucci about a bet that he thought occurred with the post time at fifteen after the hour when, in fact, there was some discussion as to whether or not it was eighteen after the hour. Salvatore D’Amico had been taking bets up to eighteen after the hour which meant that the race really took off at a quarter after the hour and he was stuck with several bets on winners that had already run. Mr. D’Amico got very excited when he found out that the true time was at fifteen after instead of eighteen after and he told Mr. Bucci, well, whoever placed the bet, he ain’t got no fucking bet. He was very upset that he had taken past posted bets. On other occasions the same conversation between Mr. Bucci and Mr. Salvatore D’Amico with reference to past posting of times occurred on 9/26/73, call number twenty-eight, in which after finding out the correct post time or the time of the race, Mr. D’Amico exclaims to Mr. Bucci, again using similar language, that the person doesn’t have any bet. On 9/18/73, a call twenty-four, Mr. Bucci is talking to Mr. D’Amico in which Mr. Bucci asks what horse has to be bet in and which Mr. Salvatore D’Amico tells him that he will break even on a certain race that they were discussing at the time. On 9/23/73 Mr. Bucci checks his personal betting figure with William Crowfoot and finds he is down approximately $30.00. Mr. Crowfoot informs Mr. Bucci that he hopes Mr. Bucci wins because they, Crowfoot and D’Amico, don’t want Bucci’s money. There was discussion on 9/22/73, call number fourteen, in which Mr. D’Amico was talking to Mr. Bucci as to the working schedule of both Mr. Bucci and Miss Handy. There seems to be a problem with Miss Handy as the person who gives the race results because Mr. D’Amico is very upset that she would be working say on a Thursday. Mr. D’Amico said he worked everyday except Thursday because the last time in reference to the lady or to the effect that the lady caused him $7200 worth of play. He lost that when she was working the phones that day. There were occasions in which Mr. Bucci and Mr. Crowfoot were talking, specifically on 9/23/73, call number twenty-one, in which Mr. Bucci was joking about the possibility of hitting the daily double himself that he played with the bookmakers at the Casa Bianco and Mr. Crowfoot tells Mr. Bucci, well, it looks like he is the only one that is not going to hit the daily double to which Mr. Bucci explains, well, I had the first horse already. On 9/21/73, call number twenty-four, Mr. Crowfoot talks to Mr. Bucci about beginning a service with the person known as Walt. This person, Walt, had conferred with both D’Amico and Crowfoot with regards to obtaining the wire service from Acme News. The person referred to as Walt had a guilt complex. He was calling in getting free service when, in fact, he should have been paying for this service. Mr. Bucci informed Mr. Crowfoot to have Walt give him a call at the service so they could start billing him for the service. Periodically throughout the day the bookmakers would also have information or a need to know what the amount of money was placed on certain bets so there could be a determination of three digit illegal lottery number posted. During the course of the day both Mr. Bucci and Miss Handy would inform the caller as to what digit was up. So far the references would be that the first girl is nine. The second girl is a three or nine across or whatever and there would also be some type of coding system. They would ring at the Casa Bianco at which time no one answered and then a call back to the sports service. On occasion Salvatore D’Amico would have a conference with the person answering the sports service line saying that he got the signal but he didn’t need anything so he didn’t call back. So, the important things for the court to take into consideration are one the signal arrangement that the legitimate sports service has with its customers, a one call to the recipient followed by a return call to the sports service, the posting time so there would be no acceptance of bets after a horse was run, the term the limit. Now, counsel has, I think, it is a News American paper with him. Why don’t you show the court all of the figures in the News American and I would venture to say that — I didn’t look at it that carefully — but I doubt if there is any term the limit anywhere.
They [the newspapers] would give the [parimutual] results. The limit refers to the result that the bookmaker shouldn’t pay out over certain odds.
All right, the counsel for the defense wants the State to put on the record that the bets of Mr. Bucci, in fact, placed were not made from Acme News. Since the State employed what is known as a touch tone decoder and a pen register, we only know the calls that were made out to a certain number. The State cannot dispute the fact as to Mr. Sutley’s [defense counsel] position that he might have called from his personal home. The thing the State wants the court to take into consideration is that the calls by Mr. Bucci occurred with reference to his bets in the early morning hours of the day in which he might have been working that day, but he did talk to the same people that he gave the results to. I think basically that would be the statement of facts showing the allegations at the Acme News Service by way of Miss Handy and Mr. Bucci, in fact, were aiding and abetting the gambling operation located at the Casa Bianco Restaurant.”

Defense counsel denied that there was a signal given. His point was that it was not shown who placed the unanswered one ring call.

Larry D’Anna, who identified himself as the President and the owner of Acme News Service, a corporation, testified on behalf of appellants. He described in general what Acme News Service does. “We give out racing news. We are not a wire service. We give out news after the event is over. . . . Racing news. We give out racing news, basketball scores. At one time we printed a racing, not a racing sheet, but a sports news sheet with our number on it.” He denied that they gave any “pre bet information”. He was asked to describe the difference between pre bet information and post bet information. “Pre bet information I would have to say is aiding and abetting for the simple reason they give you odds, change of jockeys, scratches, prior to any race being run. They give you all types of information. You can call, I guess, the Sun and you can get or see the news in the morning. They give you odds.” He claimed that Acme’s employees were supposed to give out “the one, two, three of a race result and the total mutual.” Asked where Acme got the information, he said, “We have numerous radio stations that we pick up on tape and then we play it back and put our numbers on it.” He mentioned local stations and stations all over the country that give out race results, some as often as every fifteen minutes. He denied categorically that Acme took wagers or shared in the proceeds of any bookmaking operation. He said the number of Acme’s customers varied between twenty-five to “maybe” forty. “They send us money orders. Well, the way we get them actually is through our telephone number which has been advertised on our sheets. People call us and naturally word of mouth and the public can call us at any time that they desire to have service. We say, well, we will give you service if you send us a money order or mail us the money and we charge them so much a week or if they want to come in just for one day we charge them daily.” He was asked how a customer is identified when he calls and asks for the service. “How can you prevent just anybody calling up off the street and getting the service. How do you prevent that?” He replied: “We don’t prevent it. It is something that you just can’t control. It is pretty hard to. They identify themselves. Some of them give us their names. Some wish to remain anonymous so that is their privilege. We are not interested in that, sir. The only thing we are interested in is getting our money at the end of the week and if they pay, they get service. If they don’t pay, they are not to get no service. . . . It is a personalized service and they can call at any time they wish. They could easily listen to a radio all day but if they call at five o’clock the radio can’t give them the daily double or something like that. So, it is just a personalized service they can call. It is á convenience for anyone who wants it to call at any time of day just to inquire what they want.” He observed that there were other organizations offering the same service, one of which was Armstrong Daily in New York.

On cross-examination he asserted that Acme kept very “good records”. “We have their names and whatever code they give us and we write their code names, numbers, down whatever they desire to be called.” The transcript reads:

“Q. Where are those records kept?
A. Where are they kept? They are kept in a book.
Q. Where is the book kept?
A. Where is the book kept?
Q. Where is the book kept?
A. In the office.
Q. Where is it now?
A. Where is it now? The United States government has all of my records.”

Asked to list Acme’s customers, D’Anna became evasive. He said he did not keep the records — “I don’t ever go in the office. I have these people that run my office and the only time I go in is when it is necessary for me to fill in for somebody if they are sick or something.” He could probably name a few. “We have a Clyde that wishes to be called Clyde. We have a number ten, something like that. That is so on and so forth.” Miss Handy and Acme’s bookkeeper, Sigel & Milstein, take care of the records of the company. He was queried about the charge for the service:

“Q. And how much do you charge for say two, Clyde, and ten to call in and use the service?
A. It varies. If they come in for one day, the charge is $10.00 a day. We charge from twenty-five to thirty dollars a week.
Q. And who collects the money.
A. No one collects the money. They send us money orders.
Q. And where are they mailed to?
A. They are mailed to 709 Frederick Road, 21228.
Q. Do you have a billing system?
A. We have a checking account at the First National Bank.”

He did not know what Acme’s employees said over the telephone — “I am never there.” There were two other corporate officers, Bucci, the Secretary, and a Melvin (Ike) Smith, who was vice-president but had left the company.

Dorothy Handy testified that she was employed by Acme as a bookkeeper. She worked two days a week, Thursdays and Saturdays, “on the phones”, giving racing results which she got “off of the radio.” She did not know what the term “the limit” meant or in what context it was used in her work, except that it required less talking — “. . . we do so much talking during the course of the day that we try to save our breath as much as we possibly can.” She denied that she shared in the proceeds of any wagers or that bets were placed at Acme. On cross-examination she conceded that the term “the limit” was used in the normal course of the business and that the post time was indicated. “Was” a certain time meant the race had been run at that time; “is” a certain time meant the race was to be run at that time. She did not know why the time was given. “It is like I said before that is the way they have always been giving races out. This is the way I was taught.” She was not aware of a signal arrangement.

Bucci testified that he had been employed by Acme “about seven years on and off.” He was not aware of a signal arrangement with any of the customers. He simply got race results off the radio and “when someone calls I give it out.” He denied that any bets were placed at Acme or that he shared in the proceeds of any bookmaking establishment.” On cross-examination it was elicited that he worked five days a week and sometimes six. He had Thursday off, on which day Miss Handy took his place. He knew D’Amico and Crofoot. “They were friends. They weren’t paying customers.” He had known Crofoot for about 10 years and D’Amico for about 15 years. They own the Casa Bianco bar. He used the limit “to save some of the voice . . . The limit would be — It means the horse paid a lot of money. It would have to be at least over $100.00 to $600.00. There is a limit.” He admitted there is no limit “put on” at a track. Nor had he ever seen “the limit” on a scratch sheet, or in the newspapers giving race results. He informed Acme’s customers what post time “is” and “was”. He claimed he made “his own posts. I am guessing. I can say like you said before they went nineteen or eighteen you said and he said it went fifteen. I wasn’t sure they went eighteen.” But in any event it was correct that he “made the post.”

Ill

Aiding and abetting violations of the bookmaking laws as prohibited by Art. 27, § 240 is not an independent crime in this jurisdiction. We are aware of no “aider and abettor” statute. Maryland follows the common law that all participants in misdemeanors are principals. Broadway v. State, 23 Md. App. 68. See Novak v. State, 214 Md. 472. Whatever makes one a principal or an accessory before the fact in felony makes him a principal in misdemeanor. Hochheimer’s Criminal Law (1st ed.) § 30. We said in Agresti v. State, 2 Md. App. 278, 280:

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

Although the ancient authorities regarded persons aiding and abetting in the commission of a crime as accessories at the fact, it seems that in order to avoid the technicalities of the law, aiders and abettors were early held to be principals in the second degree. 22 C.J.S. § 85; Commonwealth v. Knapp, 9 Pick. 496, 20 Am. D. 491. An aider is one who assists, supports or supplements the efforts of another in the commission of a crime. An abettor is one who instigates, advises or encourages the commission of a crime. Coleman v. State, 209 Md. 379; Seward v. State, 208 Md. 341; Anello v. State, 201 Md. 164; Polisher v. State, 11 Md. App. 555; Foster v. State, 11 Md. App. 40. We declared in Polisher, at 590, “So in- a misdemeanor a person may be chargeable as a principal if he performs some act or takes some part in the commission of the crime or owes some duty to the person in danger.”

As an aider or abettor is a principal in the second degree, the rules governing principals in the second degree apply to aiders and abettors. As to indictment, conviction and punishment, there is no distinction between principals in the first and second degree. Thomas v. State, 3 Md. App. 708, 714, citing McEntire v. State, 2 Md. App. 449, 453. But it is axiomatic that in order for a person to be a principal in the second degree, there must be a crime committed and a principal in the first degree, and it must be shown that the person aided or abetted was connected with the offense. As indicated, we pointed this out in Agresti v. State, supra, at 280, and we said in McEntire v. State, supra, at 453, under the authority of Vincent v. State, 220 Md. 232: “A principal in the second degree can be found guilty of the offense the actual perpetrator thereof commits.” A principal in the second degree, however, may be tried before a principal in the first degree and may be convicted of a higher degree of crime. Hochheimer’s Criminal Law (1st ed.), § 38. We followed this rule in Jeter v. State, 9 Md. App. 575, 582, holding that the subsequent acquittal of a principal in the first degree does not affect the prior trial or conviction of a principal in the second degree. Our holding was expressly affirmed by the Court of Appeals on certiorari, 261 Md. 221, 223.

IV

It follows from what we have said that for Handy and Bucci to be validly convicted of the charges against them the State had to produce evidence sufficient in law to show that Crofoot and D’Amico committed an act prohibited and made a misdemeanor by Code, Art. 27, § 240 and that Handy and Bucci aided or abetted therein. Code, Art. 27, § 240 creates four separate offenses. See Miggins v. State, 170 Md. 454. The section makes it a crime to:

1) gamble in any manner or by any means;
2) make book on a contingency of any kind;
3) keep any place on land or water in Maryland for the purpose of gambling;
4) receive, record, or forward any bet.

We think that the evidence adduced by way of the statement of facts was legally sufficient, directly or by rational inference, for the trial court to find that Crofoot and D’Amico were making a book on the results of running races of horses on the dates charged with one exception we shall later point out. In fact, we do not gather from the record and argument that appellants either below or on appeal claim to the contrary. The trial judge, as the trier of fact, had no difficulty in determining that Handy and Bucci were aiding in the commission of the crimes. It was “obvious” to him that Acme, having only 25 or 30 customers after being in business for 12 years, had “a specific type clientele that need this type information, specifically as to when the race goes off, . . . [and patently as to the limit to be paid] to protect the bets being made.” The exception concerns the charge against Bucci under date of 15 September 1973, statement of charges, #174670, docketed in the Criminal Court of Baltimore as “Warrant No. 47400197”. The statement of facts given by the State omitted mention of a telephone conversation involving Bucci on 15 September 1973. Therefore, there was no evidence regarding that charge. With that exception, we cannot say that the trial judge was clearly erroneous in his judgment on the evidence. Maryland Rule 1086. He was not obliged to believe the ingenious but far-fetched explanation offered by the defense as to the meaning of the term “the limit”, or the denials regarding a signal arrangement and concerning the giving of pre-race information. Williams v. State, 5 Md. App. 450. Except as to “Warrant No. 47400197” against Bucci pertaining to 15 September 1973, appellants’ contention that the evidence was insufficient to sustain the convictions is without merit.

V

Appellants contend that their convictions infringe upon the constitutional guarantees of free speech. The prohibition in the 1st amendment to the federal constitution against abridging the freedom of speech and the provision in Art. 40 of the Declaration of Rights of the Maryland constitution “. . . that every citizen of this State ought to be allowed to speak, write and publish his sentiments on all subject . . .” do not establish an absolute right. Freedman v. State, 233 Md. 498, rev’d on other grounds, 380 U. S. 51. We observe that the Maryland provision, not to be interpreted differently from the federal version, idem, contains the caveat that the citizen is to be responsible for the abuse of that privilege. We are aware of no authority holding that speech which aids or abets the commission of a crime is within the protection of the constitutional guarantees. The two cases suggested by appellants, Cohen v. California, 403 U. S. 15 and United States v. Spock, 416 F. 2d 165 (1st Cir. 1969) are patently inapposite in fact and law. We hold that the convictions here did not infringe upon the constitutional guarantees of free speech.

VI

Appellants lastly claim that Code, Art. 27, § 240 is unconstitutionally vague. The point was not raised below and is not properly before us. Hallengren v. State, 14 Md. App. 43; Vuitch v. State, 10 Md. App. 389. We do not consider it.

As to Dorothy Handy: judgments affirmed; as to Carlo Bucci: judgments affirmed except that under warrant No. J 7f 00197 (statement of charges No. 171,670) which is reversed and remanded for a new triad; appellants to pay costs.

      . The wiretap order was not challenged. At trial it was stipulated that the order and the petition and affidavit supporting it were “proper”, and they were not offered in evidence.

      . Appellants do not question the propriety of the charging documents.

      . Compare with the rule as to an accessory after the fact as set out in State v. Magliano, 7 Md. App. 286.

      . The import of the charges was that the accused committed an act prohibited by Code, Art. 27, § 240.

      . Art. 27, § 240 reads:
      “It shall not be lawful for any person or persons, or association of persons, or for any corporation within the State of Maryland, to bet, wage [wager] or gamble in any manner, or by any means, or to make or sell a book or pool on the result of any trotting, pacing or running race of horses or other beasts, or race, contest or contingency of any kind, or to establish, keep, rent, use or occupy or knowingly suffer to be used, kept or rented or occupied, any house, building, vessel, grounds or place, or portion of any house, building, vessel, grounds or place, on land or water, within the State of Maryland, for the purpose of betting, wagering or gambling in any manner, or by any means, or making, selling or buying books or pools therein or thereon upon the result of any race or contest or contingency, or by any means or devices whatsoever, to receive, become the depository of, record or register, or forward or purpose, or agree or pretend to forward any money, bet, wager, thing or consideration of value, to be bet, gambled or wagered in any manner, or by any means or device whatsoever, upon the result of any race, contest or contingency, . . . .”

      . In oral argument before us counsel for appellants said that the real issue in the case was whether a person could lawfully republish the results of a sporting event to a known gambler.

      . We note that in the statement of facts as transcribed, the date 17 September 1973 is repeated. Whether this is a typographical error or whether the 15th of September was omitted by inadvertance by the State, we do not know. We are obliged to go by the record submitted to us.


author: Gilbert, J.,

text:
    IN RE APPEAL NO. 113, September Term, 1974 from the Circuit Court of Baltimore City, sitting as a Juvenile Court
    [No. 113,
    September Term, 1974.]

      Decided October 23, 1974.

      The cause was argued before Morton, Gilbert and Moore, JJ.

      Solomon Reddick, Assistant Public Defender, for appellant.

      James L. Bundy, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Robert Aumiller, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968) dealt with the right of the police to “stop and frisk” those whom the police deem to be “suspicious persons”. The Supreme Court said at 9-10:

“We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity. . . . Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police ‘to stop and frisk’ — as it is sometimes euphemistically termed — suspicious persons.”

The fabric of this case has been tailored to fit the pattern of the above-quoted portion of Terry.

The appellant, a juvenile, age 17, in company with two other juveniles, was observed by detectives of the Baltimore City Police Department, “Escape and Apprehension Unit”, crossing an intersection of Brentwood Avenue and Lanvale Street in Baltimore City. The observation occurred at approximately 9:45 A.M. on January 29, 1974. One of the three, not the appellant, was carrying a brown paper bag. A detective testified, “One of them looked familiar to us, as of a possible escapee.” The detectives had in their automobiles a book with “over five hundred photographs in it of individuals who are out of — or on escape.” The three youths continued walking south on Brentwood Avenue toward Federal Street. The detectives “tried to back up and make a right hand turn and go down the alley . . . [in order] to stop the individuals and check them out for identification and also to check our photographs because we thought one of them might be possibly an escapee.” As the detectives approached the threesome, the juvenile who was carrying the paper bag ran. One officer stopped the appellant and a second youth. The other officer pursued the youth who had run.

The fleeing youth was apprehended, and the bag that he discarded during the course of his flight was recovered. The appellant produced no identification and in fact gave the police an alias. The police removed from the bag the contents thereof which proved to be a disassembled sawed-off shotgun. The three pieces of the gun were wrapped in a karate uniform. All three of the juveniles were arrested and transported to the police station. Approximately four hours later the appellant was searched and found to possess “one hand-rolled cigarette” containing what proved to be marihuana. Appellant also had in his possession one package of “cigarette papers.”

Appellant was charged in the Juvenile Court with “unlawfully . . . [carrying] concealed on or about [his person] a dangerous or deadly weapon, to wit: a sawed-off shotgun.” He was further charged with possessing a controlled dangerous substance, namely marihuana. At the outset of the delinquency hearing the State moved to dismiss the charge relating to carrying the shotgun because the appellant “did not at any time possess the shotgun.” The charge was dismissed.

Appellant’s counsel moved to suppress the evidence, i.e., the marihuana cigarette and the cigarette papers, on the ground that the arrest of the appellant was illegal, and hence the fruits of that arrest were unlawfully obtained. The judge denied the motion after finding that there was “probable cause for the [arresting] Officers to feel that a misdemeanor was being committed ... in [their] view.” He assigned as reason therefor the following:

“The fact that he saw these young men, the fact that there was flight, the fact that there was found this sawed-off shotgun which in itself is a crime — the possession of it. I am well aware of the fact that it was not found directly on this Respondent. He was charged with it. This was the charge placed that he was arrested for, and I think under the circumstances that have been described by the Officer the arrest was a lawful arrest. . . .”

After being reminded by counsel for the appellant that there was no flight on the part of the appellant, the court responded, “I know but they were all together, though. There was flight but the three of them were together.”

The shotgun was not offered into evidence, obviously because of the dismissal at the outset of the charge pertaining thereto, but the record makes it vividly clear that the gun was, nevertheless, displayed in the courtroom. We think the court erred in finding probable cause for the arrest of the appellant, and that the marihuana cigarette and cigarette papers should have been suppressed in the light of the illegality of the arrest.

In Gibbs v. State, 18 Md. App. 230, 306 A. 2d 587 (1973) this Court considered a case wherein a police officer testified that he saw Gibbs and another male at about 11:30 in the morning standing on a street corner in “an area known to have a lot of assaults and robberies in the street, there’s a lot of narcotics traffic in the area, there’s a lot of crime, a high crime area.” The arresting officer saw Gibbs and another male several times during the day. At about 3:45 P.M. he approached them. By that time a third male had joined Gibbs and his companion. When the officer alighted from an unmarked police vehicle and started toward the trio, two of them ran. Gibbs had his back turned and apparently did not see the officer. The officer asked Gibbs for identification. Gibbs did not have any and tried to run, but the officer grabbed his arm, frisked him, and found a fully loaded .22 caliber revolver in Gibbs’s pocket. Judge Moylan, speaking for the Court in Gibbs, supra, pointed out that Terry, supra, and Sibron v. New York, 392 U. S. 40, 88 S. Ct. 1889, 20 L.Ed.2d 917 (1968) allowed “stop and frisk”, but he noted that the arresting officer in Gibbs “articulated absolutely nothing as to what crime or type of crime he reasonably suspected the appellant of having engaged in, of then engaging in, or of being about to engage in.” Judge Moylan said:

“ . . . It is neither criminal nor quasi-criminal to stand around or to loaf about on a street corner, particularly in broad daylight. Officer Stewart’s predicate for the ‘stop’ was palpably ‘nothing more substantial than [an] inarticulate hunch’ or ‘his inchoate and unparticularized suspicion,’ condemned by Terry as inadequate. The ‘stop’ was unreasonable under the Fourth Amendment.”

In Sibron, supra, Mr. Justice Harlan, in a concurring opinion, stated:

“ . . .In the first place, although association with known criminals may, I think, properly be a factor contributing to the suspiciousness of circumstances, it does not, entirely by itself, create suspicion adequate to support a stop. There must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended.”

Although the detective in the instant case stated that the appellant and the other two juveniles were in a high crime area that was replete with narcotics traffic and armed robberies which have “been occurring with sawed-off shotguns and handguns”, our independent review of the record fails to disclose that the appellant evidenced any conduct that would justify a “stop” within the meaning of Terry, Sibron and Gibbs, supra. It is no crime, of course, for three youths to walk on a sidewalk at 9:45 A.M. It is no crime to carry a paper bag. Such an occurrence, which we think to be an everyday happening, does not give rise to a “reasonable suspicion” that any particular criminal activity has been completed, is afoot, or is contemplated. Nor does the fact that the detective “thought one of them [not the appellant] might be possibly an escapee” elevate his inchoate hunch to the level of “reasonable suspicion”.

“ . . . [T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. . . . And simple ‘good faith’ on the part of the arresting officer is not enough.” Terry, supra at 21-22.

See also Gibbs, supra at 238.

The arresting officer in the case at bar, in all probability acted in “good faith”, but as noted in Terry, that is not a sufficient basis for the stop and subsequent search. Notwithstanding whatever basis the officer may have had for stopping the youth who fled, the stopping of appellant was a transgression of his Fourth Amendment rights. Under the holdings of Terry, Sibron and Gibbs the appellant’s motion to suppress the evidence should have been granted.

Judgment reversed.

      . The youth furnished the officers with his correct first name and the current surname of his mother.

      . A 16 gauge, double-barrelled Westley Richards, hand crafted and custom made in England. The barrels of the weapon were “estimated at at least two thousand dollars.”

      . Md. Ann. Code art. 27, § 36B provides in pertinent part:
      (b) Unlawful wearing, canning, or transporting of handguns. —
      Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State shall be guilty of a misdemeanor; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun; and on conviction of the misdemeanor shall be fined or imprisoned. . . .”
      “Handgun” is defined in § 36F (a) to mean “any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun. . . .”
      A short-barreled shotgun is “a shotgun having one or more barrels less than eighteen inches in length and any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than twenty-six inches.” § 36F (a) (3/.

      . See n. 3, supra.


text:
    EDWARD THOMAS v. BALTIMORE COUNTY REVENUE AUTHORITY et al.
    [No. 116,
    September Term, 1974.]

      Decided October 23, 1974.

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

      Joel H. Pachino, with whom were Friedman, Pachino & Friedman and George D. Edwards on the brief, for appellant.

      Alfred M. Porth, with whom were Theodore B. Comblatt
      and Smith, Somerville & Case on the brief, for appellee, Baltimore County Revenue Authority and Insurance Company of North America. J. Kent Leonnig, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William H. Kable and Albert A. Levin, Special Assistant Attorneys General, on the brief, for appellee, Subsequent Injury Fund.
   Gilbert, J.,

delivered the opinion of the Court.

Edward Thomas (Thomas), appellant, during the course of his employment by the Baltimore County Revenue Authority (County), was injured. Thomas, then age 65, was pulling a lawn mower when he hurt his back. The injury, which occurred on May 25, 1970, led Thomas to file a claim under the Workmen’s Compensation Law, Md. Ann. Code art. 101. The County raised the issue of “apportionment” and impleaded the Subsequent Injury Fund as a party. The Workmen’s Compensation Commission, in a “Supplemental Award of Compensation” found that Thomas had “sustained a permanent partial disability under ‘Other Cases’ amounting to 607c industrial loss of use of his body as a result of the injury to the lumbosacral area . . . and . . . 4091 of such disability is reasonably attributable to his accidental injury on May 25, 1970, and 209r thereof is due to a pre-existing disease and/or disability . . . .”

The Commission went on to state:

“Technically the claimant is permanently totally disabled. However, a progressive condition subsequent to the accidental injury is making the claimant permanently totally disabled, i.e., arteriosclerotic cerebrovascular disease. This case differs from the Rhyhardt (sic) case (Maryland Appellate Report, Vol. 12 page 649) as in this case the condition was not aggravated, accerbated (sic) nor precipitated by the accidental injury.” (Emphasis supplied).

Thomas, asserting that the findings of the Commission were inconsistent, requested a rehearing. He argued that if he were “technically . . . permanently totally disabled”, the award patently should have been for a lOO'it industrial loss of use of the body and not just 607c as found by the Commission. The Commission, obviously unmoved by that argument, affirmed its previous order. Thomas then appealed to the Circuit Court for Baltimore County, assigning as his reason that the award of the Commission should be reversed, the same contentions he made at the rehearing before the Commission.

After his appeal to the Circuit Court for Baltimore County had been perfected, Thomas moved for summary judgment on the ground that there was no genuine dispute as to any material fact, and that he was entitled to judgment as a matter of law. Md. Rule 610. The court denied the motion on the basis that the date for determining the prior impairment of the claimant “was the date of the injury and not the date of the hearing before the Commission.” Thereafter, the matter was heard de novo, apparently on the record made before the Workmen’s Compensation Commission, before a different judge. The court affirmed the Commission, stating:

“. .. [Thomas] is not entitled, under Section 66 [Md. Ann. Code art. 101] dealing with ‘permanent disability due to combined effects of impairment, and subsequent injury’, to an award from the ‘Subsequent Injury Fund’ based on disability due to ‘impairment’ of 80 per cent as of the date of the hearing before the Commission, when the evidence proves that the claimant’s disability due to ‘impairment’ as of the date of the industrial accident was 40 per cent only.”

It is readily apparent that the court and the Commission were of the opinion that the “impairment” referred to in Md. Ann. Code art. 101, § 66 (1) is to be calculated as of the date of the subsequent accidental injury. Section 66 (1) reads in pertinent part:

“§ 66. Subsequent Injury Fund.
(1) Permanent disability or death due to combined effects of impairment and subsequent injury; reimbursement for supplemental allowance payments made under § 36. — Whenever an employee who has a permanent impairment due to previous accident or disease or any congenital condition, which is or is likely to be a hindrance or obstacle to his employment, incurs subsequent disability by reason of a personal injury, for which compensation is required by this article resulting in permanent partial or permanent total disability that is substantially greater by reason of the combined effects of the impairment and subsequent injury than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury. However, in addition to such compensation to which the employer or his insurance carrier is liable, and after the completion of payments therefor provided by this article, the employee shall be entitled to receive and shall be paid additional compensation from a special fund to be known as the ‘Subsequent Injury Fund’ created for such purpose, in the manner described hereafter in this section, it being the intent of this section to make the total payments to which such employee shall become entitled equal to the compensation that would be due for the combined effects of the impairment and subsequent injury resulting in permanent total disability or a substantially greater permanent partial disability.
Benefits from the Subsequent Injury Fund hereunder shall not be payable unless the combined effects resulting from a previous impairment and a subsequent accidental injury result in a permanent disability exceeding 50 per centum (50%) of the body as a whole.”

We have stated that the purpose of § 66 (1) is to dissuade employers from refusing to hire handicapped individuals. In order to accomplish that purpose the section limits the liability of the employer in the event that a previously handicapped employee sustains a subsequent occupational injury which though not of itself disabling, nevertheless, when coupled with the prior impairment, renders the employee permanently disabled, “thus exposing the employer to liability for the cumulative effect of the prior and subsequent injuries.” Subsequent Injury Fund v. Pack, 250 Md. 306, 242 A. 2d 506 (1968). Under the provisions of § 66 (1) the employer is liable only for compensation payable to the employee as the result of the subsequent injury, and “the Fund [is] obligated to pay the rest.” Subsequent Injury Fund v. Chapman, 11 Md. App. 369, 372, n. 2, 274 A. 2d 870 (1971), aff'd mem., 262 Md. 367, 277 A. 2d 444 (1971). See also Dent v. Cahill, 18 Md. App. 117, 305 A. 2d 233 (1973).

The Fund suggests that the Maryland statute is “similar” to that of the State of Florida. The Florida law, Fla. Stat., Workmen’s Compensation Law, § 440.49 (4) (b) (1973), provides:

“As used in this subsection, permanent physical impairment means any permanent condition due to previous accident or disease or any congenital condition which is or is likely to be a hindrance or obstacle to employment and which was known to the employer prior to the occurrence of the subsequent injury or occupational disease.”

The Florida statute makes it manifest that the impairment must be “known to the employer” prior to employment. Maryland, however, has no such employer knowledge provision in its Workmen’s Compensation Act, and we do not think this Court should, by judicial fiat, amend § 66 (1) by appending thereto words of qualification similar to those appearing in the Florida law. The proper “judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation.” West Coast Hotel Co. v. Parrish, 300 U. S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937). If the Fund desires amendment of the statute, it should seek that amendment through the legislative process and not through the courts.

In Subsequent Inj. Fund v. Rinehart, 12 Md. App. 649, 280 A. 2d 298 (1971) we considered the application of § 66 (1) to an employee who sustained a head injury and who died within a ten month span from “a malignant brain tumor.” The Fund argued “that there was no pre-existing impairment of which the decedent or anyone else was aware at the time, and that the decedent had not experienced, before the injury, any hindrance to his employment, and reason[ed] that the disease was not one contemplated under § 66(1).”

Judge Powers, speaking for this Court said:

“. . . [T]he trial judge was correct in ruling, . . . that as a matter of law the decedent, at the time of the injury, had a permanent impairment due to disease which was likely to be a hindrance to his employment, and his death was due in part to that impairment.”

After noting that § 66 (1) is directed toward a “somewhat different social and economic public policy” than § 36 (7), Judge Powers stated:

“. . . When an employee sustains an accidental injury in the course of his employment, and such injury, combining with a pre-existing ‘permanent impairment due to previous accident or disease or any congenital condition, which is or is likely to be a hindrance or obstacle to his employment’, contributes to his death, or contributes to a disability which is greater than 50% of the body as a whole, it is the declared intent of § 66 (1) ‘to make the total payments to which such employee shall become entitled equal to the compensation that would be due for the combined effects of the impairment and the subsequent injury.’ ”

The Fund in the instant case, while stating that it does not desire an overruling of Rinehart, supra, nevertheless seeks that result. If we were to follow the reasoning of the Fund, the Commission and the trial court, we would have to hold that § 66 (1) is to be applied in a restrictive and narrow manner. But, as we said in Board of Co. Comm’rs. v. Fleming, 13 Md. App. 261, 282 A. 2d 512 (1971), “The Workmen’s Compensation Act is to be as liberally construed in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. . . .” See Bethlehem-Sparrows Point Shipyard v. Hempfield, 206 Md. 589, 112 A. 2d 488 (1955).

The Fund asks us to read § 66 (1) to mean that only that degree of prior impairment existing at the moment that the subsequent accidental injury occurs, may be considered in apportioning an award under § 66 (1). If that were the case, the Rinehart decision would have been different. There the fact finder would have had to determine what, if any, industrial impairment Rinehart had prior to the time he fell and hurt his head. The answer to that question would be that there was no measurable degree of impairment because while the claimant had a malignant brain tumor, it was not evident. As we read § 66 (1) and Rinehart, supra, it is immaterial whether the “previous accident or disease or . . . congenital condition” was apparent at the time of the accidental injury. The Maryland law is that the employee is entitled to receive from'his employer or its insurance carrier that percentage of disability, if any, resulting directly from the accident, and he is further entitled to receive from the Fund that percentage of disability representing the combined effect of the accidental injury and any “impairment due to previous accident or disease or any congenital condition”, less the percentage of disability arising from the current accidental injury.

We observe nothing within the ambit of § 66 (1) which narrows the scope of that social remedial legislation to the confines sought by the Fund. We expressly reaffirm the holding of Rinehart.

There was, of course, evidence before the trial court which would entitle the court to conclude that Thomas had a permanent partial disability of 60% of his body, notwithstanding the Commission’s statement that Thomas was “[technically permanently totally disabled.”

As we said in Dent v. Cahill, supra at 127:

“Under the provisions of Md. Ann. Code art. 101, § 36 (1) (a) the Commission, as the original fact finder, is required to determine permanent total disability upon the facts of each particular case. On appeal to the trial court, the court in a non-jury trial, or the jury if there be a jury trial, may disagree with the Commission’s interpretation of the facts and arrive at a different conclusion, Richard F. Kline, Inc. v. Grosh, [245 Md. 236, 226 A. 2d 147 (1967)] subject to the caveat that the decisions of the Commission are prima facie correct, Md. Ann. Code art. 101, § 56 (c).”

Our review of the record in the instant case indicates that the trial judge predicated his decision upon a finding of that degree of impairment existing at the time of the subsequent injury. The rule is that the disability resulting from the combination of the previous impairment and the subsequent injury is to be evaluated as of the time the claimant attains maximum improvement of the subsequent injury. We reverse the decision of the trial court and remand with instructions that it, on the evidence before it, determine Thomas’s disability in the light of this opinion.

The County advised us on oral argument that it accepts liability for the payment of 40% permanent partial disability “under Other Cases” and expresses no opinion as to the propriety, vel non, of the Fund’s position.

Judgment reversed; case remanded for further proceedings not inconsistent with this opinion.

Costs to be paid by Subsequent Injury Fund.

      . The original “Award of Compensation”, passed on August 5, 1970, determined that Thomas had sustained an accidental injury arising out of his employment and was entitled to temporary total disability benefits.

      . Md. Ann. Code art. 101, § 36 (4).

      . One state, New York, has followed the approach suggested by the Fund, and has read into its second injury statute a requirement of employer knowledge. Zyla v. A.D. Juilliard & Co., 277 App. Div. 604, 102 N.Y.S.2d 255 (1951). This approach has been subjected to scholarly criticism. Professor Larson notes in his treatise that the employer knowledge requirement was “engrafted upon the statute by judicial construction,” and states that a “reason for disapproving the New York rule is that... it involves one of those distinctions that consume far more litigation time and cost than the policy at stake is worth.” A. Larson, The Law of Workmen’s Compensation, § 59.33 (1974).

      . Dissenting opinion by Mr. Justice Sutherland.

      . It is difficult to understand how Thomas can be both 607i permanently partially disabled and “technically permanently totally disabled” simultaneously.


text:
    MACK TRUCKS, INC. et al. v. LARRY L. MILLER
    [No. 122,
    September Term, 1974.]

      Decided October 23, 1974.

    The cause was argued before Morton, Moore and Lowe, JJ.

      Howard W. Gilbert, Jr., with whom were Mackley, Gilbert & France on the brief, for appellants.

      W. Kennedy Boone, III, with whom were Worths, Kreykenbohm & Boone on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Larry L. Miller, appellee, was injured during a “coffee-break” while- playing touch football on a grass plot owned by his employer, Mack Trucks, Inc., in front of the building where he worked. His claim for compensation resulting from a ruptured kidney was denied by the Workmen’s Compensation Commission. His appeal to the Circuit Court for Washington County reversed that denial with a finding that Miller had sustained an accidental injury arising out of and in the course of his employment. This appeal was taken by Mack Trucks, Inc. and its insurer, the Travelers Insurance Company. The only question to be decided is whether the injury incurred by Miller arose out of and in the course of his employment.

Miller’s regular shift hours on the day of the injury were from 8:00 a.m. to 4:00 p.m. He was permitted seventy minutes for lunch at the noon hour and two fifteen minute “coffee-breaks,” one at 10:00 a.m. and one at 2:30 p.m. During the afternoon “coffee-break” Miller and his co-workers would play touch football on the company grass plot about one hundred yards from the plant. This particular recreation had not been expressly authorized, but was permitted by the company’s acquiescence over a period of three months during which the safety director was a spectator on at least two occasions. At no time did he or any other official of Mack Trucks, Inc. interfere with, or object to, the football game.

As a condition of recovery it must be established under the circumstances of each case that the injury arose “out of and in the course of” employment. Md. Code, Art. 101, § 15. The words “out of” refer to the cause or origin of the accident, while the phrase “in the course of” refers to the time, place and circumstances under which it occurred. Coates v. J. M. Bucheimer Co., Inc., 242 Md. 198, 201.

We may restrict our inquiry by eliminating uncontested factors. The “origin” or “cause” of the injury was a third party who blocked appellee during the football game known to and not prohibited by the employer. The activity occurred on free time allowed the employee during the hours he was required to be on premises and was on company property. Under these circumstances, all of the prerequisite conditions of recovery have been met save one. We must decide whether the activity is sufficiently work-related to be an incident of employment.

In 1966 the Court of Appeals first determined that when an employer encouraged, authorized and underwrote the costs of recreational activities the work-related criterion was met. Sica v. Retail Credit Co., 245 Md. 606. The employee there was injured at a company picnic when he dove off a piling into shallow water and broke his neck. Recognizing that each case must be decided on its particular circumstances, the Court gave great weight to the “substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale common to all kinds of recreation and social life.” Sica, supra, at 618.

We find it difficult to distinguish a recreational activity encouraged during free time (a Saturday picnic once a year) in Sica from a far shorter free time recreational period provided during each working day (a 15 minute “coffee-break”). Sica was encouraged to take advantage of the relaxation and recreation and to socialize with fellow employees, although not necessarily expressly encouraged to swim or play ball. So indeed Miller was encouraged if not required to avail himself of the free time provided, and although not encouraged to play touch football, was permitted to do so with the employer’s knowledge over a period of at least three months. Not only do the employer’s actual knowledge and acquiescence establish the recreational activity as an “incident of employment,” but the period over which it had persisted would, itself, permit that inference. 1 Larson’s Workmen’s Compensation, § 22.12; citing Moore’s Case, 330 Mass. 1, analyzed and relied upon in Sica.

The language of Judge Oppenheimer justifying the Sica result seemed to augur the circumstance here. He gave an illustrative example of a social activity or event that would be sufficiently work-related . to be an incident of employment.

“The modern institution of the ‘coffee break’ benefits the employer, in maintaining the employees’ morale, as well as the participating employees. There can be little question but that an accident sustained during such an interval on the portion of the employer’s premises set aside for that activity arises out of the employment.” Sica v. Retail Credit Co., 245 Md. at 612.

The employer’s grass plot, one hundred yards from the plant may not initially have been “set aside” for that activity; however, it was clearly made available by the employer for the activity, after three months permitted use. If there is a distinction here, it is a distinction without a difference.

We are not unaware of the reasoning of the many cases in other jurisdictions both pro and con as to whether social and recreational activities are sufficiently work-related to be an incident of employment. Were we without the obvious direction pointed by the Court of Appeals, some useful purpose might be served by discussing and analyzing the reasoning of these cases. But that would be superfluous here in light of the Court of Appeals’ extensive analysis preceding its then first impression result in Sica, after which the Court prophetically expressed its view of the coffee-break in judicial dictum most appropriate to the facts of this case.

Even without the clearly mapped road provided us by the Court of Appeals, we note that Larson, Workmen’s Compensation Law leads to the same terminus.

We affirm the result reached by Judge Ottinger that the appellee suffered a compensable injury.

Judgment affirmed.

Costs to be paid by appellant.

      . In Giant Food v. Gooch, 245 Md. 160, it was held that the reading of Art. 101, § 15 and § 67 (6) together showed that the Legislature included by definition a right to recover under the Act for “ ‘an injury caused by the wilful or negligent act of a third person directed against any employee in the course of his employment.’ ” Such compensable injury need not be attributable to the working environment provided it was incurred in the course of employment. See also Smith v. General Mot. Assemb. Div., 18 Md. App. 478. The Court of Appeals made it clear that “. . .if the employee was in the course of his employment when he was killed [or injured] by a third person’s negligence, his death [or injury] was compensable even though it had not arisen out of the employment.” (Emphasis added) Giant Food, supra, at 167.

      . In Volume 1, § 22 of Larson, the general maxim is set forth that “Recreational or social activities are within the course of employment when
      (1) They occur on the premises during a lunch or recreational period as a regular incident of the employment;. . . .”
      Larson then proceeds to analyze every conceivable aspect of interrelated fact situations.


text:
    JAMES R. MEYERS v. STATE OF MARYLAND
    [No. 126,
    September Term, 1974.]

      Decided October 24, 1974.

      The cause was submitted on briefs to Morton, Gilbert and Moore, JJ.
    Submitted by C. Raymond Hartz and Arnold Zerwitz, Assistant Public Defenders, for appellant.
    Submitted by Francis B. Burch, Attorney General, Donald R. Stutman, Assistant Attorney Geiieral, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Joseph J. Reina, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

James R. Meyers was convicted in the Circuit Court for Anne Arundel County of receiving stolen goods, and he was sentenced to imprisonment for a term of three years. He was referred to Patuxent Institution for evaluation. Meyers refused to submit to mental health examinations at Patuxent and was cited for contempt. See McNeil v. Director, Patuxent Institution, 407 U. S. 245, 92 S. Ct. 2083, 32 L.Ed.2d 719 (1972); State v. Weeder, 22 Md. App. 249, 322 A. 2d 253 (1974); Marsh v. State, 22 Md. App. 173, 322 A. 2d 247 (1974); Savage v. State, 19 Md. App. 1, 308 A. 2d 701 (1973). "When the case was called for trial before Judge Ridgely P. Melvin, the State withdrew its petition and requested the court to sign a new order in which Meyers was directed to submit to the following:

“(1) Weschler Adult Intelligence Scale; (2) The Bender-Gestalt Test; (3) Draw a Person Test; (4) The Rorschack Ink Blot Test; (5) A Social Service interview; (6) An electroencephalogram; (7) A psychiatric interview; and that he shall cooperate with the staff in the examinations; ...”

The order also contained a proviso that:

“ . . . [A]ny information elicited from [Meyers] during the course of his examination and evaluation at Patuxent Institution shall not be used, directly or indirectly, as a basis for subsequent criminal prosecution of [Meyers].”

The order was signed by Judge Melvin on February 5, 1973 and served upon Meyers. Notwithstanding the court order, Meyers flatly refused to submit to the tests and interviews.

Because of Meyers’s refusal to comply with the new order, the State once again initiated contempt proceedings against him. The matter came up for hearing before Judge Matthew S. Evans, at which time Meyers moved for a jury trial. Judge Evans, however, stated that, “The acts alleged are insufficient in the eyes of this court to merit punishment by a term of six months,” if Meyers were found to be guilty of contempt; and the judge therefore held that no jury trial was warranted. The case was then tried before Judge Evans. Meyers was adjudicated to be in contempt and committed to the custody and jurisdiction of the Commissioner of Correction for a period of six (6) months less one day, and “this sentence is to run consecutively to any sentence or sentences [Meyers is now] serving, but [Meyers may] purge [himself] of this.” The trial judge advised Meyers, in effect, that if he, Meyers, submitted to the tests and interviews at Patuxent, the court would strike the contempt sentence.

Meyers has appealed to this Court. He argues that the contempt conviction should be reversed because he was denied “his constitutional right to trial by jury.” We do not, however, see it that way.

In Savage v. State, supra, we held that Savage’s wilful failure to obey an order identical to that imposed in the instant case constituted “constructive and civil” contempt “as distinguished from direct and criminal. Roll v. State, 15 Md. App. 31, 47-50 [288 A. 2d 605 (1972)], affirmed in part and reversed in part, State v. Roll, 267 Md. 714 [298 A. 2d 867 (1973)].” Thus we think Meyers’s disobedience constituted “constructive civil contempt.” Of course, in order for this Court to affirm a finding of contempt on the part of Meyers, it is required that the record demonstrate that Meyers’s conduct in failing to yield to the trial court’s order was “wilful” and not “a manifestation of mental illness, for which he cannot fairly be held responsible.” McNeil v. Director, Patuxent Institution, supra at 251.

No contention is made by Meyers that his conduct should be excused on the basis of his inability to comply with the trial court’s order because of “mental illness”, nor would the record support such a contention. From a reading of the transcript, including Meyers’s testimony, the course of action he pursued was wilful, deliberate and calculated to prevent an examination and recommendation by Patuxent. It is apparent from the record that Meyers’s every act, while at Patuxent, was directed toward frustrating the purpose of Md. Ann. Code art. 31B.

The distinction between civil and criminal contempt is ofttimes hazy, but, nevertheless, real. In a civil contempt case the punishment is remedial and can be avoided by compliance with the court order. A civil contempt proceeding is “intended to coerce future compliance.” Consequently, the penalty in a civil contempt case “must provide for purging”. State v. Roll, supra. A criminal contempt, on the other hand, imposes a penalty for past misconduct. State v. Roll, supra. The burden of proof required in the two different contempt proceedings is not the same. To establish a criminal contempt, the contemner must be shown beyond a reasonable doubt to have committed a contempt of court, but in a civil contempt situation, the standard of proof employed is that of the preponderance of the evidence. State v. Roll, supra.

The Supreme Court has articulated the rule that in all criminal contempt proceedings where the contempt is “serious”, the alleged contemner is entitled, as a matter of constitutional right, to a trial by jury. See Taylor v. Hayes, 418 U. S. 488, 15 Cr. L. 3289 (1974); Codispoti v. Pennsylvania, 418 U. S. 506, 15 Cr. L. 3294 (1974); Bloom v. Illinois, 391 U. S. 194, 88 S. Ct. 1477, 20 L.Ed.2d 522 (1968). Where, however, the contempt is “petty”, i.e., the sentence that may be imposed is less than six (6) months imprisonment and/or less than $500.00 fine, trial by jury is not mandated by the Sixth Amendment.

In the instant case, Judge Evans, at the very outset, announced that in his view Meyers’s failure to obey the court order, if that were the fact, did not constitute a “serious” offense within the meaning of the Supreme Court holdings, and therefore, Meyers was not entitled to a jury trial. We know of no rule of law that requires a person charged with civil contempt to be afforded a trial by jury, at least if the offense is petty. Moreover, it would be inconsistent to require a jury trial in petty civil contempt offenses wherein the contemner may always purge himself of the contempt, and at the same time deny a jury trial in a petty criminal contempt case where the punishment is not purgeable.

A jury trial in this factual situation is not required by the United States Constitution, the Constitution of Maryland, the Maryland Code, or the decisional law as enunciated by the Supreme Court, the Court of Appeals of Maryland or this Court. We hold that Meyers was not entitled to a trial by jury.

Judgment affirmed.

      . Certiorari was granted by the Court of Appeals of Maryland November 5, 1973, but the appeal was dismissed as moot December 14, 1973.

      . The order of February 5, 1973 is identical to the order of the Circuit Court for Caroline County in the case of Savage v. State, supra.

      . Ibid.

        . The Supreme Court stated in Codispoti, supra, (decided June 26, 1974) that “decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying more than six months sentence are serious crimes and those carrying less are petty crimes.”