author: Melvin, J.,

text:
    ARTHUR W. MELESKI et al. v. PINERO INTERNATIONAL RESTAURANT, INC.
    [No. 137,
    September Term, 1980.]

      Decided January 20, 1981.

      The cause was argued before Melvin, Wilner and Couch, JJ.

      Jervis S. Finney, with whom were Ober, Grimes & Shriver on the brief, for appellant Chas. H. Steffey, Inc. Jerome F. Connell, Sr., with whom were Connell & Clinton on the brief, for appellants Arthur W. and Elizabeth J. Meleski. Michael Demyan on the brief for appellant John S. Collins.

      Martin J. Snider, with whom were Manis, Wilkinson & Snider, Chartered on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

This case involves questions of partnership law, more particularly the liability of a partnership and its individual members to a non-partner for compensatory damages and punitive damages resulting from an alleged fraud practiced upon the non-partner by the partners in connection with a contract for the sale of a liquor license. To understand the precise issues presented it is necessary to set out in considerable detail the procedural history of the case below, tried before a jury in the Circuit Court for Anne Arundel County on special issues pursuant to Maryland Rule 560.

On June 21, 1974, a partnership known as Fort George Associates and Elizabeth J. Meleski, "parties of the first part, vendors,” entered into a written "Agreement of Sale” with "International Restaurant, Incorporated, Maryland Corporation, second part, Vendee.” The agreement contained the following recitals:

"Whereas the Vendors are the owners and possessors of a certain Class B liquor License issued by the Board of License Commission of Anne Arundel County for the premises known as 1630-32 Annapolis Road, unto Elizabeth J. Meleski trading as Butch’s Beef and Beer, and
Whereas, the Vendee is the tenant of the adjacent property known as 1634 Annapolis Road, Odenton, Maryland and does intend to re-open the restaurant and tavern business on the said premises and
Whereas, the Vendees [sic] do desire to transfer their interest in the said Class B Liquor License and the said Vendees do desire to acquire and purchase the Vendors said interest, these premises are made.”

The agreement then provided that the vendors "do hereby bargain and sell and transfer and assign all their right, title

and interest in and to the Class B Seven Day Liquor License owned by them unto the said Vendee at and for the purchase price of Twelve Thousand Five Hundred Dollars ($12,500)... .” (Emphasis added). The purchase price was to be paid in monthly installments over a three year period and if the vendee failed to make any monthly payment within ten days of its due date "the whole balance” became "due and collectable at once.” The agreement also provided that the vendors would "assist in any and whatever the Vendees in the matter of the transfer of the said License to them including whatever assistance it may render at the hearing before the Zoning Hearing Officer for Special Exception and before the Board of License Commissioners for the transfer of the said license.” (Emphasis added).

The agreement was signed on behalf of the partnership by one of the partners, John S. Collins. Collins was the managing partner and the attorney for the partnership. The agreement was also signed by Elizabeth Meleski individually, apparently in her capacity as the individual to whom a Class B liquor license had been issued in connection with the operation of the restaurant known as Butch’s Beef and Beer. There was testimony, however, that the partnership, Fort George Associates, was "in fact” the owner of the liquor license. It seems that sometime in 1971 or 1972 Mrs. Meleski and her husband, Arthur Meleski, had bought into the partnership consisting of John S. Collins and Chas. H. Steffey, Inc. The partnership owned the property on which Mr. and Mrs. Meleski operated Butch’s Beef and Beer restaurant, but at the time of the agreement, the restaurant had been closed since April 30, 1973, and, according to Mr. Meleski, the building was demolished two or three months after the restaurant was closed "due to the fact that we [the partnership] were going to build motels in the back.” The motel was under construction in April 1974. Apparently, the original building plans for the motel did not include a restaurant and there was testimony that the partnership considered it advantageous to have an operating restaurant with a liquor license next door as a convenience to the motel’s guests.

The agreement was signed on behalf of the vendee, International Restaurant, Incorporated, by its president, Antonio Pinero. Mr. Pinero is a native of Cuba. He cáme to the United States in 1957 and became a U. S. Citizen in 1966. Prior to coming to Anne Arundel County he and his wife had operated, successively, small restaurants in Pennsylvania, Delaware and Washington, D. C. He said that in 1973 when "we lost our lease” to the premises where his Washington, D. C. restaurant was located, he and his wife sought another restaurant location. They were unsuccessful in their search until, in April 1974, they came to Anne Arundel County in answer to a newspaper advertisement that the English Company had a restaurant for rent. The restaurant was immediately adjacent to the property owned by the Fort George Associates partnership where Butch’s Beef and Beer restaurant had been operated.

Before signing a lease with the English Company, Mr. Pinero, in early April, 1974, contacted Mr. Collins whose name had been mentioned to him as one who had a liquor license for sale. Collins told him of his (Collins’) association with Fort George Associates and that the partnership had a license they would transfer to him. According to Pinero, after the $12,500 price was verbally agreed upon, he asked Collins why he couldn’t "just get a new one” rather than pay $12,500 for the transfer. Pinero said Collins replied that there was a "moratorium” on the issuance of new licenses and that "you have to buy an existing license.” Pinero testified that he regarded Collins as his lawyer in connection with all the "paperwork” necessary to the obtention of the transfer of the license, including the formation of International Restaurant Corporation to receive it, the preparation of the June 21, 1974 agreement of sale, and representation before the Anne Arundel County Zoning Hearing Officer and the County Liquor Board. He testified that although he had owned a beer license in connection with his restaurant in Washington, D. C., he "didn’t have any knowledge” of the liquor laws or "the different classes of licenses that existed in Anne Arundel County.”

On September 7,1977, the partnership (then consisting of Mr. and Mrs. Meleski and Chas. II. Steffey, Inc. — Mr. Collins having retired as a partner in 1976 — and Mrs. Meleski filed suit against International Restaurant Corporation. The declaration alleged the existence of the June 21, 1974 written agreement of sale and that International had "wrongfully breached the contract by failing to pay” a balance claimed to be due on the purchase price of the liquor license they had sold to International. International had a perfect defense to this suit: the Class B liquor license that the plaintiffs purportedly owned and for which they sought payment from International did not exist on June 21, 1974. Although a valid Class B license had at one time been owned by the plaintiffs-vendors, it had been allowed to expire on April 30, 1974, after Butch’s Beef and Beer restaurant had ceased to operate. Thus, when these admitted facts became known to the court, at a pre-trial hearing, International's motion for Summary Judgment was granted as to the plaintiffs’ claim for payment.

In the meantime, International had filed in the proceedings a counterclaim against the original plaintiffs for fraud and deceit. It alleged that the counter defendants were partners in Fort George Associates and claimed a judgment against them "jointly and severally” for compensatory and punitive damages. International also filed in the proceeding what it called a "Third-Party Claim” against Mr. Collins seeking the same damages for the same fraud alleged in the counterclaim, i.e., that the partnership acting through one of the partners (Collins) falsely and fraudulently represented to International that the partnership owned a valid liquor license "with the intent to deceive and defraud Third-Party Plaintiff to pay valuable consideration for a non-existent commodity.” A separate count of the "Third-Party Claim” also sought damages against Mr. Collins for an alleged breach of duty owed to International as its attorney.

The case went to trial by jury on International’s counterclaim and "Third-Party Claim” and the general issue pleas filed thereto. At the close of the evidence, various issues were submitted to the jury pursuant to Md. Rule 560 with instruction from the court. Based on the jury’s answers to the issues submitted, the docket entries show that the following judgments were entered on October 2, 1979:

"Judgment Absolute extended for the Counter-Plaintiff, Pinero International Restaurant, Inc., against the Counter-Defendant, Arthur W. Meleski, in the amount of $4,068.00 compensatory damages and $11,250.00 punitive damages ($15,318.00); for the Counter-Plaintiff, Pinero International Restaurant, Inc., against the Counter-Defendant, Elizabeth J. Meleski in the amount of $4,068.00 compensatory damages and $11,250.00 punitive damages; in favor of Counter-Plaintiff, Pinero International Restaurant, Inc., against the Counter-Defendant, Charles H. Steffey, Inc., in the amount of $4,068.00 compensatory damages and $22,500.00 punitive damages, and in favor of the Third-Party Plaintiff, Pinero International Restaurant, Inc., against the Third-Party Defendant, John S. Collins, in the amount of $4,068.00 compensatory damages and $22,500.00 punitive damages, jointly and severally and as partners in Fort George Associates, Inc.”

All of the partners (Mr. and Mrs. Meleski, Chas. H. Steffey, Inc. and John S. Collins) joined in filing a single notice of appeal. One brief was filed on behalf of all appellants. We shall consider the questions presented in the chronological order in which the alleged errors of the trial court occurred.

I

Appellants contend that the court erred in granting summary judgment to International on the partnership’s original suit for breach of the June 21, 1974 agreement. Their argument here is that at the time the motion was granted there was evidence before the court from which it could be inferred that the original agreement had been changed by the parties and that International was indebted to them under the alleged new agreement or "novation.” The difficulty with this argument is that the appellants elected to sue on the original written agreement, claiming that International owed them a balance on the purchase price of a liquor license that they allegedly owned and had sold to International for $12,500. There is no indication or contention that they ever sought to amend their declaration to allege any other agreement. Having conceded to the court in oral argument that at the time of the written agreement on which their suit was based they had no liquor license to sell, it is difficult to comprehend how they could expect to recover its "selling” price from International. The Summary Judgment was properly granted. Md. Rule 610.

II

During the course of appellant Collins’ testimony at trial, the trial judge asked him a number of questions. ’No objection was made to any of the questions as they were being asked by the judge, but shortly thereafter counsel for Chas. H. Steffey, Inc. asked the court to "tell the jury to disregard the questions and responses” on the grounds that the judge "clearly cross examined him Í Collins]” and "inevitably influenced the jury and prejudiced the jury.” Counsel for the Meleskis said that "the Court far exceeded its scope of examination...”, and counsel for Collins complained that "the way the questions were brought out, I think that the jury could have surmised that something important was being brought out that wasn’t brought out before, yet it was brought out in such a way that it was indication to them to the prejudice of the defense in this case that it — it had more importance than it actually had.” The record does not show that either of these counsel asked the court to take any action.

On appeal, appellants contend that "the court below erred in refusing to grant an immediate instruction to the jury, or a mistrial, upon its hypercritical interrogation of John S. Collins.” They assert that the court’s "questions were unsettling, belittling and overbearing” and that "the prejudicial impact was .. . irreparable.” We find no reversible error. First of all, none of the appellants asked for a mistrial. That issue is therefore not before us. Md. Rule 1085. Moreover, even though some of the court’s questions may have elicited answers that were harmful to the appellants’ case, we do not think that the questions were unwarranted under the circumstances. In any event, even if there had been error in any of the questions, the error was dispelled by the judge’s instructions to the jury at the close of the case:

"You should not conclude from any conduct or words of mine that I favor one party or the other or believe or disbelieve the testimony of any witness. You and not I are the sole judges of the believability of the witnesses and the weight of the evidence. And you must not be influenced in any way by my conduct during the course of the trial. I sometimes ask questions during a trial because I’m not clear about a witness’s testimony on certain points. You should not infer that this ... you should not infer that these matters are more important than others I did not ask questions about. I was merely seeking clarification. Even should you conclude that I may have come to certain conclusions of my own, you will not speculate as to what those conclusions are. I’m not a juror and I have no function in your deliberations in deciding the facts and applying the law. You are the ones who must decide the case.”

See State Roads Comm. v. Wyvill, 244 Md. 163, 170, 223 A.2d 146 (1965); Nicholson v. Blanchette, 239 Md. 168, 175, 210 A.2d 732 (1965).

Ill

Appellants contend that "the court erred in refusing to direct verdicts for appellants on the issue of fraud, punitive damages, and the statute of limitations.”

(a) Fraud

The appellants, citing Section 9-305 of the Corporations and Associations Article (Ann. Code of Md. 1975), concede in their brief "that if fraud is established against one partner, the partnership (and thus all partners) are liable for that fraud. ...” With this correct concession, and in view of the absence of any real argument concerning the sufficiency of the evidence of fraud as to one of the partners (Collins), we find no merit to appellants’ contention that a directed verdict should have been granted in favor of any of the appellants. The issue was clearly one for the jury to determine on the conflicting evidence and inferences therefrom.

(b) Punitive Damages

As we understand the appellants’ argument here, it pertains only to the Meleskis and Chas. H. Steffey, Inc. It is argued that the jury should not have been permitted to consider punitive damages against the Meleskis and Chas. H. Steffey, Inc. because there is no evidence that they individually "authorized, participated in, or ratified the malicious act.” This argument is without merit for two reasons.

First, there is evidence in the case from which the jury could have found that the Meleskis and Chas. H. Steffey, Inc. did authorize, or at least ratify, the action of Collins in entering into the alleged fraudulent agreement of June 21, 1974 to "sell” the non-existent liquor license. By his own testimony, Mr. Meleski read the agreement before it was executed and authorized his wife to sign it. He also testified that Mr. John Steffey, chairman of the board of Chas. H. Steffey, Inc., was "aware” the agreement "was coming into existence.” There was also evidence from which the jury could have found that after the execution of the agreement the partners accepted, indeed insisted upon, payments from the appellee with full knowledge that the liquor license they had "sold” him did not exist.

Secondly, it is uncontroverted that in executing the agreement on behalf of the partnership Collins was acting within the scope of the business of the partnership. His allegedly fraudulent conduct in inducing the appellee to enter the contract was, then, a partnership act, and if as a consequence he is liable for punitive damages, so too are the partnership and all other partners — regardless of whether or not there is any affirmative proof that any of the other partners authorized, participated in or ratified his tortious conduct. Although we recognize there is authority to the contrary in other states, we think the rule in Maryland is as we have stated it.

In Schloss v. Silverman, 172 Md. 632, 192 A. 343 (1937), the Court of Appeals stated the general rule of liability of a partnership and its several members for the torts of any of its members:

"The liability of one copartner for the tortious acts of another is analogous to the liability of a principal for the acts of his agent, since each partner acts both as principal and as the agent of the other as to acts done within the apparent scope of the business and purpose of the partnership and for its benefit. 1 Rowley on Partnership, secs. 509, 485; 47 C. J. 884; 20 R. C. L., Partnership, secs. 94, 126. The test of the liability of the partnership and of the several members thereof for the torts of any one partner is whether the wrongful act was done within what may be reasonably found to be the scope of the business of the partnership and for its benefit {Ibid; Cooley on Torts, sec. 88), and the scope of the authority of a partner is determined by the same principles as those which measure the scope of an agent’s authority.” 172 Md. at 638.

The Court then went on to recognize that there is authority for the proposition that this general rule "is not applicable to the liability of one partner for the willful and malicious torts of another (Cooley on Torts, sec. 88), because such torts cannot be considered as within the usual scope of partnership business.” Id. at 638. The opinion makes clear, however, that if a tort is "willful and malicious” [and therefore one for which punitive damages may be awarded] and is committed within the scope of the agency, the non-participating partners are equally liable.

"... But it is not altogether certain that the general rule is not applicable to such cases, because the conclusion that willful and malicious wrongs are not within the scope of an ordinary partnership may be a mere factual inference. The case of McIntyre v. Kavanaugh, 242 U.S. 138, 139, 37 S. Ct. 38, 39, 61 L. Ed. 205, cited as in apparent conflict with the rule that willful and malicious torts are not to be considered as within the usual scope of the business of an ordinary partnership, does not go as far as that. The court there was dealing with a case in which a partnership engaged in business as brokers wrongfully converted certain securities. Thereafter the firm and its members were adjudged bankrupts. The depositor then sued one of the partners, who pleaded his discharge, personal ignorance of and nonparticipation in any tortious act. The court there said: 'That partners are individually responsible for torts by a firm when acting within the general scope of its business, whether they personally participate therein or not, we regard as entirely clear. ... If, under the circumstances here presented, the firm inflicted a willful and malicious injury to property, of course, plaintiff in error incurred liability for that character of wrong.’ That case turned upon the fact that the tort was actually within the general scope of the partnership business, and is not inconsistent with the rule that a willful and malicious tort is not within the usual scope of an ordinary partnership. If the tortious act is a partnership act, it must also be severally the act of the partners; but if it is willful and malicious, and done by one of the partners without the knowledge or consent of the others, and not for the benefit or purposes of the partnership, it will not be considered as within the usual scope of an ordinary business partnership. In the case last cited the partnership received the securities, and the partnership appropriated them wrongfully to its use, sold them, deposited the proceeds to its credit, and used them as its funds. That those transactions were partnership business was not a matter of inference, but was shown by direct and unequivocal proof. But whether regarded as an exception to the general rule, or as a mere application of it to appropriate facts, the weight of authority supports the view that, where one partner commits a willful and malicious tort not within the scope of the agency or the common business of the partnership, to which the other members have not consented, and which has not been ratified, they are not liable for harm thereby caused. ... [Citations omitted].” (Emphasis supplied). Id. at 638, 639.

In Schloss, the Court found no liability against a partnership and the non-participating partners for the tort (assault) of one partner, on the ground that the assault was not committed within the scope of partnership business. In the instant case, however, as we have already indicated, the conduct complained of as warranting punitive damages was uncontrovertedly within the scope of the agency or the common business of the partnership. Consequently, even if there had been no evidence that the Meleskis and Chas. H. Steffey, Inc. had authorized, participated in or ratified that conduct, they would be jointly and severally liable for any punitive damages awarded therefor.

The Maryland rule of derivative liability for punitive damages is well settled. In Safeway Stores, Inc. v. Barrack, 210 Md. 168, 122 A.2d 457 (1956), it was argued by the appellant corporation that it was not liable for punitive damages because it had not authorized, ratified or participated in the tortious acts of its agent and employee, one Smith. The Court said, at 210 Md. 176-177:

"The reasoning that would support an award of punitive damages against Smith would not necessarily apply to his employer. Some courts have held that a principal is not liable for punitive damages unless the principal authorizes, ratifies or participates in the act complained of. Lake Shore Ec. Railway Co. v. Prentice, 147 U.S. 101; Prosser, Torts (2d ed.), p. 21; Restatement, Torts, § 909. Cf. Wardman-Justice Motors v. Petrie, 39 F.2d 512 (D. C.), and Safeway Stores v. Gibson, 118 A.2d 386, 388 (Mun. C. A., D. C.), in which cases the courts found evidence of express authorization or ratification from the terms of employment and the retention of the agent after the incident was reported. But the Maryland cases take a less strict view. In Boyer & Co. v. Coxen, 92 Md. 366, 371, punitive damages were allowed against an employer in an assault case, where there was no evidence of authorization, participation or ratification. There was, of course, evidence that the servant was acting in furtherance of the master’s business, although his action in beating the plaintiff with a wrench was 'wanton, high-handed and outrageous’. See also Dennis v. Baltimore Transit Co., 189 Md. 610, 616, and Balt. & Yorktown Turn. v. Boone, 45 Md. 344.” (Emphasis added.)

In Boyer & Co. v. Coxen, 92 Md. 366, 367-369, 48 A. 161 (1901), the Court explained the reason for the Maryland Rule:

"Some courts of high authority have adopted the rule that a principal is only liable in punitive damages for the act of his agent when the former has either given express authority to the agent or subsequently ratified his act, or was guilty of some misconduct himself in connection with it. When it is remembered that such damages are allowed by way of punishment to the offender as a warning to others, the doctrine sanctioned by those Courts cannot be said to be wholly without foundation to base it upon, for it is at least unusual to punish one person for the act of another, unless the former did either authorize or ratify it or take some part himself in what is complained of. But there are a number of instances in which the principal may be even criminally liable for the acts of his agent, for some of which see 1 Ency. of Law (2 ed.), 1161, n. 2, and in this State we have not followed the doctrine held by the Courts above referred to in civil suits. Although the rule adopted here may in some cases result in hardship to the principal, yet, if carefully applied, there is less danger of injustice in enforcing it, in proper cases, than in denying it in all cases unless the principal has actually participated in the wrong done by his agent or servant or authorized or ratified it. Any liability of the master for a tort of his servant is dependent upon the fact that the servant was acting at the time in the course of his master’s service, and for his benefit, within the scope of his employment. The master selects him for that service and knows, or ought to know, what sort of a person he is investing with authority to act for him. The servant is acting for his master when the wrong is done — it is in contemplation of law the act of the master. In a great many cases, a judgment against the servant would be of no value to the injured one and no punishment to the wrong-doer, as it could not be collected. Every character of business, of any considerable proportions, is for the most part conducted through agents and servants, and if the principal or master cannot be held responsible in punitive damages, it would in many, perhaps in most actions of torts, be equivalent to abolishing that character of damages, if he is to be relieved by reason of the fact that the act complained of was done by the servant, and not by him individually. This Court has therefore followed the rule that the master is not exempted from the liability for such damages merely because the act complained of was done by a servant, and not by the master himself, and in many cases exemplary damages have been allowed against the master for acts done by the servant, without express authority from the former or ratification by him having been shown.
In this case the jury was required to find that the agent, McKewen, was acting in the discharge of his duty for which he was employed, when he made the assault complained of, before it could render a verdict for the plaintiff, and, having so found, his principal was responsible in punitive damages, provided the facts were such as would have warranted that kind of damages, if the agent was being sued.” (Emphasis in original).

We conclude from the cases cited (see also Carl M. Freeman Associates, Inc. v. Murray, 18 Md. App. 419, 306 A.2d 548 (1973)), that since the relationship of co-partners, each to the other, is that of principal and agent, the principle of derivative liability that renders the partnership and each partner liable in compensatory damages for the acts of a partner done within the scope of the partnership business also renders them liable for punitive damages.

For the reasons stated, it was not error to submit the issue of punitive damages to the jury as to all partners in this case.

(c) Statute of Limitations

Appellants argue that the appellee’s claim against them is barred by Md. Code Ann., Courts and Judicial Proceedings Article, § 5-101, which requires civil actions to be filed within three years from the date they accrue.

Three of the appellants, the two Meleskis and Chas. H. Steffey, Inc., did not file timely pleas of limitations to the counterclaim filed against them by the appellee. See Maryland Rule 342 c 2 (requiring limitations as a matter of defense to be "specially pleaded in actions ex delicto”) and Rule 342 d 2 (requiring that a plea of limitations be filed within fifteen days of service of the counterclaim). The untimeliness of the plea as to them was raised by the appellee in its response to their pre-trial motion for summary judgment on limitations grounds. The court correctly ruled that the defense was not available to them. Foos v. Steinberg, 247 Md. 35, 230 A.2d 79 (1967).

It appears that the other appellant, Collins, also failed to file his plea of limitations within the time required by the Rules. In his case, however, the appellee has raised no issue of its untimeliness either in the proceedings below or in this appeal. The untimeliness of the plea has therefore been waived and is not before us as an issue in the case. Md. Rule 1085.® The issue that is before us is whether, without regard to the untimeliness of the plea, the "Third-Party Claim” against Collins is barred by limitations as a matter of law or whether the trial judge was correct in submitting the issue to the jury.

Md. Code Ann., Courts and Judicial Proceedings Article, § 5-101, requires civil actions to be filed within three years from the date they accrue. In this case the action for fraud and deceit was filed on January 6, 1978. Ordinarily, a claim accrues when the wrong is committed, not when it is discovered. Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972). The appellee does not argue here that the fraud and deceit alleged by it occurred within three years prior to the filing of suit; rather that the beginning date for limitations was postponed until the fraud was discovered by Pinero in October, 1977 and that since the action was filed within three years of that time, the suit is not barred by limitations.

Md. Code Ann., Courts and Judicial Proceedings Article, § 5-203, provides:

"If a party is kept in ignorance of a cause of action by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.”

In view of the conflicting evidence and inferences therefrom concerning what the appellee knew and when he knew it, we cannot say, under all the circumstances, that the trial judge erred in not ruling as a matter of law that the action against Collins was barred by limitations. See Herring v. Offutt, 266 Md. 593, 599, 295 A.2d 876 (1972), where the Court of Appeals said:

"Whether a plaintiffs failure to discover his cause of action was due to his lack of diligence, or to defendant’s concealment of his wrong, is ordinarily a question for the trier of fact. [Citations omitted].”

IV

Finally, appellants contend that the trial judge erred in his instructions concerning punitive damages. We find no reversible error — except in one important respect.

The jury was told, in effect, that where one partner “acting in the ordinary course of the business of the partnership” wrongfully acts or fails to act and thereby causes loss or injury to a non-partner, the other partners are liable for that loss or injury as well as for any punitive damages incurred "to the same extent as the partner sole acting or omitting to act.” (Emphasis added). This. was consistent with the principle of derivative liability for punitive damages already discussed in this opinion. It is also consistent with the Maryland Uniform Partnership Act, Title 9 of Md. Ann. Code (1975), Corporations and Associations Article, § 9-305 and § 9-307. We find no reversible error in that instruction. Later in his instructions, however, the judge instructed the jury as follows:

"If you find that punitive damage should be awarded, then you will consider a separate award as to each defendant as set out in issue number 10.” (Emphasis added).

Issue No. 10 and the jury’s answer thereto was as follows:

"10. If your answer to #9 is 'yes,’ what punitive damages do you find as to:
Arthur Meleski $11,250.00
Elizabeth Meleski $11,250.00
Charles H. Steffey,
Inc. $22,500.00
If you answered #1 'no,’
John S. Collins $22,500.00”

Oddly enough both sides made timely objections to the form of issue No. 10. Though counsel for appellee now defends the instruction, he objected to it below:

"With reference to number 10 specifying the punitive damages can be found by the jury as to each individual or against each individual defendant, I’d respectfully indicate that, at least as the state of the law at this time, it is a joint and several obligation as I read the law and that the apportionment, although maybe more reasonable and ultimately required by the courts or the legislature, it is not the state of the law at this time and that the jury should probably have considered a joint and several verdict.”

Counsel for Chas. H. Steffey, Inc., speaking for all appellants at the time, said:

".... [A]s did Mr. Snider [counsel for appellee], I also object to question ten. It seems to me first, that Your Honor states in the instruction that each partner is liable for the punitive damages as to one. And now in effect in the issues, Your Honor is inviting the jury to find in effect punitive damages as to all. Second, this suffers from the same objection which I’ve made to Your Honor several times and stated earlier in this presentation, and that is that it permits the jury to assess liability for punitive damages against partner 'as’, not liability against partner 'b’ and then proceed to assess no punitive damages against partner 'a’, but then go ahead and impose punitive damages upon partner 'b’, when they found that partner 'b’ in and of partner 'b’ himself or herself was not liable for punitive damages. Finally, with respect to number ten, my third point is, Your Honor, that once Your Honor has decided, as Your Honor did, to impute or impose punitive damages upon all when the jury found upon one, it seems to me it is inconsistent and unfair and inflationary to the finding of punitive damages to then double back and suggest to the jury in the last analysis that they find individual awards of punitive damages against the individual defendants. Thank you, Your Honor.”

We think it was error to allow the jury to "consider a separate award [ of punitive damages] as to each defendant” in this case. It is true that the purpose of punitive damages is not so much to compensate the plaintiff but is, "over and above full compensation, to punish the wrongdoer, to teach him not to repeat his wrongful conduct and to deter others from engaging in the same conduct.” Wedeman v. City Chevrolet Co., 278 Md. 524, 531, 366 A.2d 7 (1976). Considering that purpose, there is considerable logic to support the individualization of punitive damage awards in cases where multiple defendants are all liable for one sum in compensatory damages but there are shown different degrees of complicity among the individual defendants in the wrongdoing giving rise to punitive damages. As we said in Cheek v. J.B.G. Properties, Inc., 28 Md. App. 29, 43-44, 344 A.2d 180 (1975):

"Those jurisdictions favoring apportionment seem to rely on the reasonable view that a jury should be permitted to vary the damages depending upon the degree of culpability since punitive or exemplary damages are not compensation for injury; instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. Cf., Gertz v. Welch, supra, 418 U.S. at 350, 41 L.Ed.2d at 811.”

In Cheek we reversed judgments entered against a corporate defendant and its employee for allegedly slanderous remarks made by the employee about the plaintiffs. The judgments included awards for punitive damages which the jury "apportioned” between the two defendants. More precisely, the jury made separate awards of punitive damages against each defendant. The judgments were reversed and a new trial ordered on grounds not related to the "apportionment” issue. We, nevertheless, by way of strong dicta, if not by way of a holding, concluded "that Maryland should be in the majority of states permitting apportionment of punitive damages.” Id. at 45 (emphasis added). In espousing this dicta for guidance of the trial judge to whom Cheek was remanded, we were influenced by the logic of allowing apportionment of punitive damages and the inequity inherent in a rule to the contrary. To fully accomplish their purpose, punitive damages must be imposed individually based upon the individual’s culpability and financial means. Moreover, the introduction of evidence of financial worth of the defendants is bound to produce unfairness if the awards are not individualized. See Washington Gas Light Co. v. Lansden, 172 U.S. 534; Nance v. Gall, 187 Md. 656, 50 A.2d 120 (1947); Schloss v. Silverman, 172 Md. 632, 192 A. 343 (1937).

Nevertheless, we are now squarely faced with the issue of, not whether Maryland should permit "apportionment” of punitive damages, but whether it does permit it. We conclude that it does not — at least where, as in this case, the defendants are in a principal-agent relationship. The reason for our conclusion is the Maryland rule heretofore discussed that liability for punitive damages, where there are multiple defendants who are in a principal-agent relationship, is joint and several without regard to their relative culpability. As this rule presently stands it does not permit the application of and cannot co-exist with a so-called "apportionment” rule that allows a separate award against each of several defendants measured by each defendant’s individual culpability.

In Nance v. Gall, 187 Md. 656, 50 A.2d 120 (1947), the plaintiff, Gall, brought suit for malicious prosecution against a railroad superintendent, Nance, and the railroad company for allegedly wrongful conduct of the superintendent in instituting criminal charges against him. A verdict in one sum for punitive damages was rendered against Nance and the railroad company. On appeal, the Court held that Nance acted beyond the scope of his authority and therefore reversed the judgment against the railroad company without a new trial. By its first opinion, the Court let stand the judgment against Nance, but later modified the opinion to reverse the judgment against Nance as well and awarded him a new trial. The Court felt that "the jury intended, by its verdict, to inflict punishment on both the corporate and individual defendants, and would not have rendered the verdict it did if the action had been instituted solely against Nance.” Id. at 677. In the course of its modified opinion the Court said:

"The verdict which the jury rendered was a joint verdict and it could not have been apportioned as to the two defendants.” Id. 675.
"Appellee argues that Nance knew that punitive damages might be assessed against him as the case below was tried on that theory, and that the record is devoid of any suggestion that Nance was entitled to or sought separate consideration in the matter of damages. But the jury could not apportion its judgment so as to make a part of it applicable to Nance and a part applicable to the railroad company. It could only render a joint judgment, and each would be responsible for the entire judgment.” Id. 676. (Emphasis added).

In Cheek v. J.B.G. Properties, Inc., supra, we discerned from Nance and the cases there cited, acceptance of the principles for a punitive damage apportionment rule and apparently concluded that by the above-quoted language the Court was making an observation upon the dilemma of the jury in that case, rather than espousing binding legal concepts. However, in light of the clearly established Maryland rule of derivative liability for punitive damages, we have rethought our former position. We do not now believe that Nance can be read so broadly as to allow us to effect a change in that rule so as to permit individualized awards of punitive damages in cases where, as here, the defendants are in a principal-agent relationship. Only the Court of Appeals or the Legislature is free to change this long standing Maryland rule that in our opinion prevents such awards.

Aside from what we have already said, in view of the inconsistent instructions on punitive damages (on one hand that all partners are liable for punitive damages to "the same extent” as any one partner, and, on the other hand, that separate amounts may be awarded against each of the partners), we think it is by no means clear that the jury intended a total punitive damage award of $67,500 rather than a total of $22,500 for which each partner would be jointly and severally liable "to the same extent” as every other partner. The judgments actually entered, with respect to punitive damages, were separate judgments in favor of the appellee (counterclaim plaintiff and Third-Party Plaintiff below) against each of the partners of $22,500.00 for which each of them would be liable "jointly and severally and as partners.” Obviously, a joint and several judgment for which each partner is individually liable is not consistent with the notion that each partner be liable for only his own individual culpability. This uncertainty as to the jury’s intention would alone require a new trial on the issue of punitive damages.

With respect to compensatory damages, it is obvious that the jury intended a total award of $4,068.00 against all partners — not $4,068.00 separately against each partner. Yet, separate judgments, totalling $16,272 were entered for which the partners were, again, to be "jointly and severally liable and as partners.” Clearly, as to compensatory damages, there should have been one joint judgment for $4,068.00 against all partners. This can be easily corrected upon remand.

For the reasons stated, we shall vacate the judgments entered and remand the case with direction to the trial court to enter one judgment for $4,068.00 in compensatory-damages against all appellants. With respect to punitive damages, a new trial on that issue is awarded. For the guidance of the trial court, we point out that, in view of the issues already properly determined by the jury, the sole issue to be determined on remand is the amount of punitive damages that in the discretion of the trier of fact should be assessed jointly against the appellants as a result of their liability, already determined, for having committed fraud in the inducement of the June 21, 1974 contract.

Judgments vacated; case remanded for further proceedings not inconsistent with this opinion; costs to be paid one-half by appellants and one-half by appellee.

      . As a condition precedent to the regular use of any premises for the sale of alcoholic beverages, the Anne Arundel County Zoning Regulations in effect at the time required that a Special Exception therefor be granted. The issuance or transfer of a liquor license was also subject to the approval of the County Liquor Board.

      . The named defendant was actually "Pinero International Restaurant, Jnc.” but the pleadings were amended by interlineation on October 3,1978, to reflect "International Restaurant Corporation” as the apparently correct name of Mr. Pinero’s corporation. We hereafter refer to the Corporation as "International.”

      . At the trial below, the Meleskis, Chas. H. Steffey, Inc. and Collins were represented by separate counsel.

      . We do not intimate that in all circumstances a trial judge’s prejudicial conduct can be cured by instructions at the end of the case. Depending on the circumstances, there may be cases where a judge’s conduct is so prejudicial as to be irreparable. The inétant case is not one of those cases.

      . "S 9-305. Partnership bound by partner’s wrongful act.

      Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act. (An. Code 1957, art. 73A, § 13; 1975, ch. 311, § 2.)”

      . See e.g. Broudy-Kantor Co. v. Levin, 135 Va. 283, 116 S.E. 677, 32 A.L.R. 249 (1923); Wright v. E. Z. Finance Co., 267 S.W.2d 602 (Tex. Civ. App. 1954).

      . Appellee’s "Third-Party Claim” against Collins was filed January 6, 1978 and served upon Collins on January 16, 1978. His pleas thereto, including the plea of limitations, were not filed until March 16, 1978.

      . See also Poe’s Pleading and Practice, Vol. 2 (Sixth Ed.), § 618:
      "... [T]he failure of the defendant to file the plea within the time prescribed by the rule of court will be waived if the plaintiff reply and issue be joined. To avoid this result, the proper course for the plaintiff to pursue when the plea of limitations is filed too late is to move that it be not received — which motion will be granted almost as of course; the plea, if already filed by the clerk, will be stricken from the record.”

      . ”§ 9-305. Partnership bound by partner’s wrongful act.

      Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act. (.An. Code 1957, art. 73A, § 13; 1975, ch. 311, § 2.)”

        ”§ 9-307. Nature of partner’s liability.

      All partners are liable:
      (1) Jointly and severally for everything chargeable to the partnership under §§ 9-305 and 9-306; and
      (2) Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract. (An. Code 1957, art. 73A, § 15; 1975, ch. 311, § 2.)”

      . The other pertinent issues submitted and the jury’s answers were:
      "1. Does the statute of limitations bar any claims against Mr. Collins?
      Yes_ No 25__
      2. Was there a mutual mistake as to the subject matter of the contract?
      Yes_ No _?_
      4. If your answer to #2 is 'no,’ did the parties come to a new agreement — a new contract — after June 21, 1974?
      Yes_ No _x___
      5. If your answers to #2 and #4 are 'no,’ did the partners commit fraud in the inducement of the contract of June 21, 1974?
      Yes_5_ No___
      6. If your answer to #5 is 'yes,’ what compensatory damages do you find?
      $4,068.00
      9. If your answer to either #5 or #7 is 'yes,’ and if you have awarded compensatory damages in either #6 or #8, do you find that punitive damages should be awarded against the partners?
      Yes_ *__No_”

      . We use the word "apportionment” only for convenience and because other cases have employed it. In fact, this term is inaccurate as applied to punitive damages, in that it assumes the existence of a single sum that can then be divided. When a jury is allowed to "apportion” punitive damages, it does not first ascertain some abstract total award and then equitably apportion that among the multiple defendants; rather, the jury begins and ends by imposing a separate amount against each defendant determined by that defendant’s individual culpability and estimated ability to pay.

      . In the present case, as in Nance v. Gall, supra, no evidence was introduced of the financial means of any of the defendants. Such evidence is not a prerequisite to awarding punitive damages. Fletcher v. Western National Life Insurance Co., 10 Cal. App. 3d 376, 404, 89 Cal. Rptr. 78 (1970).

      . The jury considered Mr. and Mrs. Meleski, who between them held a one-third interest in the partnership, as one unit. The other two partners each held a one-third interest.


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    HARRY PAUL BRYANT, JR. v. STATE OF MARYLAND
    [No. 201,
    September Term, 1980.]

      Decided February 4, 1981.

      The cause was submitted on briefs to Morton, Wilner and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Patricia A. Logan, Assistant Public Defender, for appellant.
    Submitted' by Stephen H. Sachs, Attorney General, Stephen Rosenbaum, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Harry Paul Bryant, Jr., the appellant, pleaded guilty to a charge of escape. The Circuit Court for Anne Arundel County accepted the plea and sentenced appellant to two years incarceration, consecutive to the time he was then serving. On appeal, appellant contends the record does not adequately demonstrate that he "entered his guilty plea voluntarily, with understanding of the nature of the charge and the consequences of the plea.” We agree and shall vacate the judgment.

When appellant appeared before the court, he did so for the purpose of pleading guilty. The record shows the following to have taken place:

"HARRY BRYANT, a witness of lawful age after first being duly sworn, deposes and says:
CLERK: State your name and address.
THE WITNESS: Harry Bryant. Maryland Correctional Training Center.
COURT: Do you understand, Mr. Bryant, that you’re here for trial on a charge of escaping from the correctional facility on May 24, 1979?
DEFENDANT: Yes sir.
COURT: And that your counsel has tendered a plea of guilty on your behalf?
DEFENDANT: Yes sir.
COURT: First of all, has anyone made any promises or inducements to you other than what’s been said in court today, to cause you to plead guilty?
DEFENDANT: No sir.
COURT: No one, anyone threaten or force you in any way to plead guilty?
DEFENDANT: No sir.
COURT: You understand that by pleading guilty, you waive a number of your constitutional rights?
DEFENDANT: Yes sir.
COURT: Among them, you waive the right to a trial either by a jury or by the court. In a jury trial there would be twelve jurors elected from a larger number and all twelve would have to find you guilty beyond a reasonable doubt. You waive that and you also waive the right to a court trial in which a judge would hear the evidence and he would have to find you guilty beyond a reasonable doubt. Do you understand that you are waiving those rights?
DEFENDANT: Yes sir.
COURT: You also waive the right to require the state to prove your guilt beyond a reasonable doubt, and to produce the witnesses that would testify against you, and the right of your attorney to cross examine them, do you understand?
DEFENDANT: Yes sir.
COURT: And you waive the right to summons any witnesses on your own behalf?
DEFENDANT: Yes sir.
COURT: You also would have the right at a trial to testify or remain silent, whichever you decided to do, and if you remain silent, no inference of guilt would be drawn from the fact that you didn’t testify. You waive that right?
DEFENDANT: Yes sir.
COURT: Are you on any drugs or narcotics or anything like that today?
DEFENDANT: No sir.
COURT: And you understand that a plea of guilty is one of the highest forms of evidence for guilt?
DEFENDANT: Yes sir.
COURT: And that’s what you want to do today?
DEFENDANT: Yes sir.
COURT: And you do so plead involuntarily? [sic]
DEFENDANT: Yes sir.
COURT: Alright. Unless counsel has some questions?
MR. FORDHAM [Assistant State’s Attorney]: I have none.
MISS CROCKER [Assistant Public Defender]: None.”
"COURT: Alright. I’ll approve the plea of guilty on the Statement of Fact, and the plea [sic] found the defendant guilty beyond a reasonable doubt as charged. Anything you want to say before disposition?”

Appellant contends that this record is insufficient to demonstrate that he knew or was advised of the nature of the charge against him and thus is a violation of Md. Rule 731 c, which provides in pertinent part:

"The Court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea.”

While it may be a close question whether the above colloquy is sufficient to satisfy the rule requirement relative to "the nature of the charge, ” we believe it clearly shows a failure to explain "the consequences of the plea,” at least so far as the possible penalty is concerned, as required by the rule. In State v. Priet, 289 Md. 267, 424 A.2d 349 (1981), the Court of Appeals made clear that while the trial judge is not required ritualistically to advise an accused of the nature of the charges, it was necessary that "the court will explain to the accused, in understandable terms, the nature of the offense to afford him a basic understanding of its essential substance. . . .” In so holding the Court recognized that "this, of course, is an essential requirement of the rule. . . .” Here, too, in our view, "the consequences of the plea,” is an essential requirement of the rule. We recognize that some of the consequences were made known to the appellant but it seems to us, particularly where, as here, there was no plea agreement with respect to punishment, that the consequence must be made known to an accused.

Although no prior Maryland case interprets Md. Rule 731 c in its reference to "consequences of the plea, ” cases decided before the effective date of the rule hold that an accused must be informed of the maximum sentence that the trial court can impose for the offense before the court can accept a guilty plea. Mathews v. State, 15 Md. App. 686, 692, 292 A.2d 131, cert. denied, 266 Md. 739 (1972); Gant v. State, 16 Md. App. 382, 297 A.2d 327 (1972).

In Mathews, supra, we ordered a new trial for an appellant where the record did not affirmatively demonstrate his being apprised of the maximum sentence to which he subjected himself by his guilty plea. Our decision relied upon the constitutional principles expounded by the U. S. , Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969), wherein Mr. Justice Douglas stated at 243, 244:

"What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.” (Emphasis added.)

Keeping in mind, however, that so many of our procedural rules track the Federal Rules of Procedure, we deem it wise to look there for guidance even though not bound thereby. Rule 11 c of the Federal Rules of Criminal Procedure provides:

"Before accepting a plea of guilty or nolo contendere, the Court must address the defendant personally in open court and inform him of, and determine that he understands the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.. ..”

Prior to 1974 the rule required the court to inform the defendant of "the consequences of the plea,” which, of course, is the wording used in the present Maryland rule.

Our review of additional federal cases involving this issue finds that the phrase "consequences of the plea,” as used in Rule 11 c of the Federal Rules of Criminal Procedure, requires that the defendant be informed of the maximum possible penalty. See U.S. v. Maggio, 514 F.2d 80 (5th Cir. 1975); U.S. v. Wolak, 510 F.2d 164 (6th Cir. 1975); Wells v. U.S., 452 F.2d 1001 (5th Cir. 1971).

In our view, and we so hold under Md. Rule 731 c, the court, before accepting a plea of guilty, is required to inform the defendant of the maximum sentence he may receive as a consequence thereof. Since this was not done in the present case we are compelled to vacate the judgment.

Judgment vacated; case remanded for further proceedings consistent with the views expressed herein.

Costs are not reallocated as part of the judgment of this court pursuant to Maryland Rule 1082f.

      . Regardless of when or how this mistake entered the transcript, the appellant does not raise the issue of his voluntariness in pleading guilty to the charge as he then understood it.

      . We observe, however, that because of the very nature of the charge it may not have been necessary to go further than was done here.

      . See Sutton v. State, 289 Md. 359, 424 A.2d 755 (1981), in which the Court of Appeals held that a trial court violated Md. Rule 731 c by accepting a plea of not guilty upon an agreed statement of fact, found to be the "functional equivalent” of a guilty plea, without showing on the record that the defendant made her plea voluntarily and with knowledge of the maximum permissible length of sentence.


text:
    GARY LYNN ROBINSON v. STATE OF MARYLAND
    [No. 219,
    September Term, 1980.]

      Decided February 4, 1981.

      The cause was argued before Lowe, Melvin and Liss, JJ.

      Claudia Córtese, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Thomas J. Saunders, Assistant Public Defender, on the brief, for appellant.

      Richard B. Rosenblatt, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Judith R. Catterton, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

Pursuant to a jury trial conducted in the Circuit Court for Montgomery County, Gary Lynn Robinson, the appellant, was convicted of assault with intent to murder. Mr. Robinson has brought this appeal to contest the validity of that conviction. Appellant’s primary complaint is that much of the evidence used to convict him was the fruit of an illegal search, and, therefore, the judge below erred in refusing to suppress the evidence so obtained. We find no merit in this or any of the other contentions made here by appellant; therefore, we shall affirm appellant’s conviction.

Appellant’s conviction arose out of a knifing which occurred on the night of May 24, 1979 at 8400 Greenwood Avenue in Takoma Park, Maryland. Eighty-Four Hundred Greenwood Avenue is a residential building comprised of five apartments and what might be referred to as a utility area. Four of the apartments are at the street level or above and are accessible through the front door of the building which opens onto Greenwood Avenue; the fifth apartment and utility area share the basement level. The basement apartment is only accessible by an exterior stairwell located at the rear of the building. The utility area consists of two rooms (a laundry room and a boiler room) which are connected by an interior door. The sole entrance to the utility area is also at the foot of an exterior stairwell, and this entrance opens onto Wabash Avenue which is at the left side of the building as viewed from Greenwood Avenue. Although the basement apartment and the utility area are adjacent, there is no interior door connecting these two spaces. At the time of the incident, appellant resided in apartment number two at 8400 Greenwood Avenue and was employed as the maintenance man for the building. The basement apartment, number five, was rented to Mrs. Joyce Belcher, the victim.

At some point during the day of May 24, 1979, Mrs. Belcher, who lived alone, left her apartment. While she was out, one of the fuses in her apartment and at least one light bulb were unscrewed, so that the lights for the entire front half of her dwelling would not function. Consequently, when she returned home that night, Mrs. Belcher entered an extremely dark apartment which, despite her efforts, she could not illuminate. Before she could escape the darkness, a man who had been lurking within the apartment when she arrived, grabbed her, held a knife to her throat and threatened to kill her. A struggle ensued in which Mrs. Belcher received severe lacerations to her throat and face. Ultimately, the assailant fled, and Mrs. Belcher managed to make her way out of her apartment to the front of the building where her screams for help were heard by neighbors. Within minutes, both the police and a rescue squad arrived at the scene.

When the police arrived, they found Mrs. Belcher lying on the inside front steps of the apartment building; she was covered with blood and, though conscious, she was virtually incoherent. While Mrs. Belcher was being treated for her injuries and rushed to the hospital, the police began an extensive investigation of the scene. Some of the officers searched and processed Mrs. Belcher’s apartment. Others interviewed neighbors to learn what they might have seen or heard. Still others used police dogs in an attempt to track the assailant. During this investigation, a trail of blood was discovered which led from the front steps, where Mrs. Belcher was found, to the rear of the building. Blood was also found on the steps leading down to the victim’s apartment and in the doorway. The door of the victim’s apartment was found open and the bedroom window slightly raised; however, there were no signs of forced entry. Further investigation of Mrs. Belcher’s apartment produced little evidence. Questioning of the neighbors was likewise unproductive. Owing to the large number of people present and the fact that it was raining heavily that night, the dogs were unable to pick up the assailant’s trail. Thus, as of little more than an hour after the police had first arrived, neither the weapon nor the assailant had been found, and the police had no suspects.

Consequently, one of the officers present, Corporal Thomas Weidmann of the Montgomery County Police, decided to walk around the building to see if anything had been overlooked; in the process, it occurred to him to look for the culprit in the utility area which theretofore had not been investigated. There was no blood leading to the utility area or even on that side of the building, and, of course, the canine did not lead Officer Weidmann there. Rather, the policeman’s attention was directed to the utility area by the plain fact that the assailant was still at large, and those darkened basement rooms offered a convenient and inviting place to hide.

Without attempting to obtain a warrant, Officer Weidmann sought the assistance of Corporal Robert German, and together they descended the exterior stairwell leading to the sole entrance to the utility area. According to appellant’s testimony, this door, which opens into the laundry room segment of the utility area, bore a 3" x 5" handwritten sign which admonished users to "help keep the place clean and lock the door before leaving.” Officers Weidmann and German both testified that they did not notice any such sign. Appellant also testified that the laundry room was usually locked, so that access thereto was limited by key to the residents of the five apartment units in that building and one person in the building across the street. Appellant admitted that the door was unlocked when he entered the laundry room on the evening of May 24 and that the door had been unlocked on two of three prior trips he had made to the laundry room that day; however, he claimed that he had closed and locked the door behind him when he entered that evening. In sharp contrast, Officer Weidmann testified that the door had a padlock and hasp, suggesting that it could not be secured from the inside, and, moreover, that when he and Officer German approached the door, they found it unlocked and slightly ajar. Officer German clarified this testimony by estimating that there was a space between the door and the frame of approximately a quarter to one-half an inch. According to Officer Weidmann’s testimony, he and Officer German opened the door the rest of the way, entered the laundry room and turned on the light. They found themselves in a large room containing a washer, dryer, ping pong table and some articles of personal property placed there for storage. Appellant testified that tools and other items belonging to him were stored there in the laundry room. Observing nothing of a suspicious nature in the laundry room, Officer Weidmann proceeded ahead into the adjoining boiler room; according to Weidmann, the door connecting the laundry and boiler room was also slightly ajar. Appellant testified that the door was closed.

In addition to a boiler, the boiler room houses a hot water heater, oil tanks and sinks. According to appellant, only he and. the landlord were authorized to enter the boiler room; however, there was no lock on the door or other evidence indicating that access was so restricted. Appellant also claimed that he had slept in the boiler room on occasion and that he was sleeping there on the night of May 24, but both Officers Weidmann and German testified that the boiler room was extremely hot (90° or more), suggesting that it was not fit for sleeping. Further, appellant admitted that he had never eaten in the boiler room, that he did not store any personal property there, and that it was not his office.

After Officer Weidmann entered the boiler room and turned on the light, he observed in plain view a knife, a sheath, a jacket, a hat and gloves. The knife had blood on it, and the sheath contained the name "Gary Lynn Robinson” written in blue ink; the name was legible to Officer Weidmann without his moving the sheath. The articles just described were noticeably free of dust unlike the fixtures in the room. At some point, Officer German joined Officer Weidmann in the boiler room and shortly thereafter spied appellant’s body protruding from under some foam rubber carpet padding, where appellant appeared to be hiding. Officer German ordered appellant to stand up; he complied, and German observed blood on his trousers and arm. Following a brief inquiry by the officers, appellant was placed under arrest. Subsequently, the articles of clothing and the weapon discovered in the boiler room were seized.

Search and Seizure

Appellant now contends, as he did below, that by entering the boiler room and seizing the articles found therein, the police violated his Fourth Amendment rights. Accordingly, he asserts that the articles so obtained should have been suppressed. At the conclusion of a two-day suppression hearing, Judge Frosh decided to deny the motion to suppress because he found: 1) appellant had no reasonable expectation of privacy in the boiler room; and 2) there were exigent circumstances justifying the search complained of. We would note at the outset that each of these two findings is an independently sufficient basis for having denied appellant’s motion. Hence, in affirming Judge Frosh’s ruling, we shall ground our decision upon the finding that is, in our opinion, the most clear in view of the facts adduced at the suppression hearing: the entry into the boiler room — though warrantless — was, nevertheless, reasonable given the exigent circumstances then existing. In so grounding our decision, we assume — without deciding — that appellant had a legitimate expectation of privacy in the boiler room such that the disputed search and seizure, had it been unreasonable, would have infringed an interest of the appellant which the Fourth Amendment was designed to protect. See generally Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).

The Fourth Amendment does not prohibit all searches and seizures, nor does it absolutely prohibit every search and seizure that is warrantless; on the contrary, the Fourth Amendment proscribes only those governmental intrusions into our spheres of privacy which are deemed "unreasonable.” In that connection, it has long been the rule that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Nevertheless, over the years, the courts have willingly, but with the appropriate measure of judicial caution, established and broadened exceptions to the warrant requirement where to do otherwise would have elevated our right to freedom from governmental intrusion above values which we cherish even more dearly. One such exception, born of this very reasoning, is the "emergency doctrine.”

The emergency doctrine exception to the warrant requirement has been recognized by the Supreme Court on a number of occasions. Notably, the Court in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298-299, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) stated that, "The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Recently, in Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), the Court found the emergency doctrine inapplicable but, nevertheless, reaffirmed its faith in the principle:

"We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.” Id. at 392 (emphasis added).

As this quotation suggests, while the Supreme Court has repeatedly recognized the emergency doctrine exception, the task of delineating the reach of this exception has been left for the most part to the state and lower federal courts.

A review of the decisions of those courts reveals that "emergency doctrine” is now a generic term that has come to be applied in a myriad of factual situations involving virtually every brand of exigent circumstance. E.g., Lebedun v. State, 283 Md. 257, 390 A.2d 64 (1978); see Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buffalo L. Rev. 419 (1972); Note, The Emergency Doctrine, Civil Search and Seizure, and the Fourth Amendment, 43 Fordham L. Rev. 571 (1975). Although on occasion, it has been applied to the protection of property, the essence of the emergency doctrine exception is the belief that the interest in preserving human life is paramount to the right of privacy secured by the Fourth Amendment. Note, 43 Fordham L. Rev. 571 supra. Accordingly, the justification for and ultimate purpose of an emergency doctrine search is the protection of human life. Typically, this means that a law enforcement officer’s otherwise illegal intrusion will be legitimized by the fact that he is entering the premises to render aid to one whom he reasonably believes to be in urgent need; however, the purpose of the emergency doctrine is nonetheless accomplished and a warrantless governmental intrusion may be justified thereby, where the officer enters a premises in an effort to apprehend or locate a virulent criminal and, in that way, eliminate what he reasonably believes to be an imminent threat of continuing criminal activity. This latter variety of the emergency doctrine has been employed in a number of cases, at least three of which are particularly analogous to the case at bar.

In the case of Fellows v. State, 13 Md. App. 206, 283 A.2d 1 (1971), this Court was faced with an analogous situation. The Baltimore City Police had been summoned to the scene of a stabbing death which had just occurred in the second floor office of a multi-story building comprised of a restaurant on the first floor and apartments on the floors above the second story office.

"Upon arrival [the police] were directed to the second floor landing. There they observed a large pool of blood outside the office door, with bloody footprints and a trail of blood leading up the stairs to the third and fourth floor apartments. Observing that the outside windows were closed and suspecting that [the] assailant was still in the building, they first went to the fourth floor apartment occupied by Mr. and Mrs. Haywood Simon. After knocking, the Simons, who were still in their bed clothes, came to the door but upon questioning they denied hearing any disturbance. The officers then returned to the third floor where the blood trail led to the third floor apartment, the door of which was partially open. After knocking, they entered the apartment and searched to see if anyone was hiding. The search revealed the apartment was empty but [Officer] Brauner observed a pair of bloodstained pants on a hanger in the closet.” Id. at 209.

Appellant there argued that the warrantless entry and search of his third floor apartment was unlawful and that the trial judge, therefore, erred in denying his motion to suppress the State’s evidence concerning the bloodstained pants. After thoughtful consideration we rejected appellant’s arguments, concluding that the officers’ search was reasonable under the exigent circumstances then existing: "The officers had good reason to believe that [the] assailant was still in the building, and they entered the apartment for the sole purpose of locating and apprehending him.” Id. at 209-210.

In perhaps more explicit terms, the Supreme Court of Nevada applied the emergency doctrine to similar facts in the leading case of State v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974). The facts of that case were well summarized as follows:

"Summoned to investigate a homicide in Room 83 of the Mintz Hotel, where a violent struggle apparently had taken place, the police found a blood-drenched corpse, its throat cut and multiple stab wounds in its chest. Identification officers began collecting physical evidence, and thereafter, having no suspect, detectives commenced interviewing occupants of neighboring rooms, seeking information to throw light on the crime. Although respondent had earlier been seen entering Room 82, he did not respond to the officers’ knock. For all they knew, he might have been asleep, drunk or merely attempting to avoid visitors. Believing it essential to interview respondent, whose room was closest to the death scene, and who therefore was most likely to have heard the final conflict, the officers opened his door with the manager’s passkey.
The key to Room 83 lay on the floor in plain view. Wearing a blood-stained shirt, respondent was on the bed, staring up at the officers. When they ordered him to his feet, a knife later identified as the death weapon fell to the floor. Key and knife were blood stained.” 518 P.2d at 152.

The court in Hardin upheld the warrantless entry of respondent’s hotel room, opining that,

"These facts obviously provided the police grounds to believe there was urgent need to launch and pursue their investigation.
Clearly, after interviews with more distant neighbors of the victim proved unproductive, and after other methods of gaining respondent’s attention proved unavailing, opening the door to seek an audience was both reasonably directed toward and confined to the officer’s legitimate, nonexploratory, emergency purpose. In our view, therefore, this conduct did not constitute an 'unreasonable search’ in the constitutional dimension.” Id. at 154.

Most recently, the New York Supreme Court had occasion to apply the emergency doctrine to facts almost identical to those of Hardin and clearly analogous to the present case. As summarized by the New York court, those facts were as follows:

"Shortly after 7 P.M. on July 8, 1977, shots were heard coming from Room 643 at 611 West 112th Street, a single room occupancy hotel. Within minutes several police officers had responded to the scene, among them an Officer Sullivan. Sullivan entered Room 643, which was at one end of the hall, and observed within it the dead body of a woman who had been shot in the head at close range apparently shortly before his arrival.
Directly opposite the room was a communal kitchen which Sullivan entered. He then tried the door of an adjacent bathroom which was locked. Next to the bathroom was Room 645. Sullivan knocked on the door and no one responded. A hotel employee stated that the room was occupied by a man and a woman who had just been observed leaving the hotel, the man carrying a television set.
Sullivan directed the employee to unlock the door and with his gun drawn opened the door and stepped into the room. On top of a bureau of drawers he saw a pillowcase with red spots on it and something underneath the pillowcase which proved to be a woman’s wallet. Another police officer removed the pillowcase and wallet to the Fifth Homicide Zone.” People v. Devine, 66 A.D.2d 244, 414 N.Y.S.2d 128, 129 (1979).

In upholding the warrantless entry, the court stated:

"The emergency character of the situation confronting Officer Sullivan cannot seriously be questioned. A woman had been shot to death within a few moments prior to his arrival at the scene. There was a strong likelihood that an armed murderer, and perhaps more than one, was on or near the premises. Nor could the possibility be excluded that the crime was linked to other crimes in the immediate vicinity not yet known to the police.
A prompt search of the immediate premises, including surely at the least nearby rooms, was critical. Such a search might disclose one or more killers, related crimes, or information that would permit prompt identification in time to make a speedy apprehension.” Id. at 130.

In view of these cases it is plain to us that the warrantless entry of the boiler room in the present case was reasonable in the context of the exigent circumstances then existing and is, therefore, within the emergency doctrine exception to the warrant requirement. The police, here, were summoned to the scene of a savage throat slashing. Upon their arrival, they observed the blood-drenched victim on the front steps of the apartment building. They were able to obtain little information from her owing to the fact that she was virtually incoherent. The police followed a trail of blood to the victim’s basement apartment, where they searched in vain for clues as to the identity or whereabouts of the attacker or the location of his weapon. They interviewed other residents of the victim’s building and residents of a neighboring building to no avail; no one was observed fleeing the building. They brought in canine and attempted to track the assailant but were thwarted by the weather and the crowd. Under these circumstances, with the knowledge that an armed and vicious assailant was at large, and with reason to believe that he was still in the building, the police were presented with an emergency situation sufficient to justify their entry of the common areas of the building, including the unlocked laundry and boiler rooms, in an effort to locate and apprehend the culprit. This is especially plain to us inasmuch as the area entered by the police was the place in closest proximity to the apartment in which the attack occurred. Furthermore, we are convinced that the police, in entering the utility area, were not merely conducting a broad exploratory search for evidence but were in fact entering that place to apprehend one whom they believed to be an imminent and lethal threat. Officer Weidmann testified to this fact, and.it is evidenced by the fact that he specifically requested that Officer German accompany him into the utility area.

We are unimpressed by the fact that this entry into the utility area did not occur until somewhat over an hour after the crime itself. As the foregoing facts reveal, it was part of a continuing investigation. Cf. Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). In similar circumstances, the Nevada court in Hardin found a two and one-half hour delay in entry to be insignificant. 518 P.2d at 155. Moreover, in a case involving "hot pursuit,” our own Court of Appeals stated that a delay of well over an hour did "not compel the conclusion that the circumstances underlying [the] warrantless entry were not exigent.” Nilson v. State, 272 Md. 179, 191, 321 A.2d 301 (1974).

Having established that the officers’ entry into the boiler room was lawful, the subsequent seizure of the physical evidence found in plain view therein is easily justified. It is true that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation.” Terry v. Ohio, 392 U.S. 1, 26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). However, the facts presented indicate that the evidence seized here was observed in plain view during a search so circumscribed. "And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.” Mincey v. Arizona, 437 U.S. 385 at 393. Thus, the evidence sought to be suppressed here was lawfully obtained and properly admitted.

Cross-Examination

Appellant’s next contention is directed entirely at one particular segment of defense counsel’s cross-examination of the victim:

"Q [Defense Counsel]: Didn’t you also talk to another attorney, your own attorney about this case?
A [Victim]: Yes.
Q And isn’t it a fact that that attorney advised you not to talk with me about the case?
A Yes, he did.
Q Is that because you intended to file suit against the management of the building[?]
MS. CATTERTON [State’s Attorney]: Objection.
THE COURT: Sustained.
MR. RUPP [Defense Counsel]: Your Honor, I think it goes to bias and motive.
THE COURT: Sustained.”

According to appellant, the question ("Is that because you intended to file suit against the management of the building?”) was aimed at discrediting the victim’s testimony by suggesting to the jury that the victim had an ulterior motive in linking appellant to this crime. Therefore, appellant asserts that, by prematurely foreclosing this effort, the trial judge denied him his constitutional right of effective cross-examination, thereby committing reversible error.

It is certainly true that there is a constitutional right of effective cross-examination. As articulated by the Supreme Court in Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974),

"The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400 (1965). Confrontation means more than being allowed to confront the witness physically. 'Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.’ Douglas v. Alabama, 380 U.S. 415, 418 (1965).”

It is equally well-established that this guarantee includes the right to cross-examine in an effort to reveal "the influence of possible bias in the testimony of a crucial identification witness.” Davis at 319. Accordingly, we recognized in State v. DeLawder, 28 Md. App. 212, 344 A.2d 446 (1975) and declared most explicitly in Deinhardt v. State, 29 Md. App. 391, 397, 348 A.2d 286 (1975), cert. denied, 277 Md. 736, 741 (1976), that,

"The opinion of the majority in Davis makes clear that the refusal to allow the defense to demonstrate bias on the part of the prosecutor’s principal witness through cross-examination is a denial of Due Process under the Fourteenth Amendment as well as an infringement upon Davis’s Sixth Amendment rights.”

Nevertheless, we do not believe that the trial judge’s ruling complained of in this case offends these well-settled precepts.

Appellant’s argument implicitly assumes that the entire basis for the State’s general objection and the trial court’s accompanying sustention was relevancy. Stated more precisely, the objection would have been that whether the victim intended to file suit against the management of the building was irrelevant to the case being tried. If, in fact, this were the sole ground for the objection, defense counsel’s proffer below that the question "goes to bias” would have been pertinent and appellant’s argument here would be persuasive. Proof of a witness’s bias is always relevant. 3 A.J. Wigmore, Evidence § 940, p. 775 (Chadbourne rev. 1970). Moreover, as Davis, DeLawder and Deinhardt proclaim, preventing defense counsel from showing bias — at least on the part of a crucial identification witness — is constitutional error.

However, the question which generated the ruling complained of here did not simply ask the victim whether she intended to file suit; rather, by its terms, the question sought from the victim an explanation as to why her attorney had advised her not to talk with defense counsel. As such, the question called for the witness to express an opinion or draw a conclusion; it asked her to speculate as to her attorney’s purpose in giving her the advice he did. For this reason, the question was objectionable, regardless of its relevance. Brotherhood of Locomotive Firemen and Engineers v. Nash, 144 Md. 623, 640, 125 A. 441 (1924); Aetna Indemnity Co. v. George A. Fuller Co., 111 Md. 321, 345, 73 A. 738 (1909), reargument denied, 111 Md. 321, 74 A. 369 (1909). As a matter of evidentiary law, therefore, the objection was properly sustained. Furthermore, the judge’s ruling did not abridge appellant’s constitutional right of effective cross-examination, in that it did not foreclose the realm of bias or even the specific subject of a collateral civil suit from defense counsel’s inquiry. Instead, the ruling merely prevented counsel from pursuing these matters by means of an improper question. There is no indication in the record that the trial judge would have again sustained an objection to defense counsel’s inquiry as to the victim’s bias had counsel approached the subject by properly reframing his question. Under these circumstances, we can find no error in the trial judge’s ruling.

Scientiñc Evidence

Appellant’s third claim of error relates to the testimony of Jean Hostetler, a forensic chemist from the Montgomery County Police Department, who was called as a State’s witness. At trial, Ms. Hostetler testified that she had analyzed blood samples taken from the victim, the appellant, and stains found on the various items of physical evidence previously mentioned. In addition to the traditional A, B, 0 blood groupings, Ms. Hostetler utilized an electrophoretic technique in performing her analysis. As a result of this technique, the witness testified that she was able to — on the basis of their respective enzyme structures — more precisely compare the blood samples obtained. It was from these enzyme comparisons that the blood on the appellant’s clothes and other physical evidence was matched to-that of the victim.

Before receiving testimony concerning these blood tests and their results, the trial judge held a hearing, outside of the presence of the jury, to determine the question of admissibility. At this hearing Ms. Hostetler was first qualified as an expert in forensic chemistry. In this regard she testified that she held a Bachelor of Science degree in biology and a Master of Science degree in forensic chemistry. Furthermore, Ms. Hostetler described several years of work experience in the field of forensic chemistry and stated that she was then teaching a college level course on the same subject. She also noted a number of professional organizations of which she was a member.

Having been thus qualified, Ms. Hostetler described the technique she had employed in analyzing the blood samples at issue in this case. As she explained, electrophoresis involves the application of an electrical current to a blood sample for a period of time, thereby causing the different enzymes present in the blood to separate into their protein components. After separation, the enzymes and their protein components can be identified and, in this way, the blood can be classified more specifically than is possible by the traditional A, B, O blood grouping.

As to the reliability of the described electrophoretic technique, Ms. Hostetler testified that it was developed in the late ’60’s and that it is now an accepted practice in the field of forensic chemistry. She testified further that she personally knew that electrophoresis was being utilized by the Montgomery County Police, the Baltimore Police, the Maryland State Police and the Federal Bureau of Investigation (FBI). Ms. Hostetler’s testimony was uncontroverted. No expert witness was called by the defense, nor was any other evidence adduced to suggest that electrophoresis is regarded as either experimental or controversial. It was brought out on cross-examination of Ms. Hostetler that the electrophoretic technique at issue here is not typically used by hospital or other non-police labs. However, she explained that the reason for this is that enzyme structure does not affect blood compatibility for the purposes of transfusions and the like; therefore, aside from use in forensic and research labs, there is simply no need for the precision that this technique affords. On these facts, the trial judge concluded that the proffered scientific evidence was admissible and, therefore, allowed Ms. Hostetler to testify before the jury. Appellant contends that this was error; we disagree.

The only significant objection to this ruling which the appellant has registered on appeal is that Ms. Hostetler’s testimony only established that the use of electrophoresis and enzyme comparison for the purpose of classifying blood samples is an accepted practice in the field of forensic chemistry. She did not and could not, according to appellant, demonstrate that this technique is generally accepted in the broader scientific community. Because of this limitation on the scope of Ms. Hostetler’s opinion, appellant asserts that the State failed to satisfy the Reed standard governing the admissibility of scientific evidence.

To ensure fairness to litigants where scientific evidence is involved, the Court of Appeals in Reed v. State, 283 Md. 364, 391 A.2d 364 (1978), set forth a rule of admissibility requiring that the party seeking to introduce evidence generated by a scientific technique first demonstrate that the technique involved is considered reliable by those qualified to make such an assessment. Paraphrasing and elaborating upon a test established earlier in Frye v. United States, 54 U.S. App. D.C. 46, 47, 293 F. 1012, 1014 (1923), the Court of Appeals in Reed stated:

"[B]efore a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. Thus, according to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.” 283 Md. at 381 (emphasis added).

Contrary to appellant, we do not understand either the language or the reasoning of Reed to suggest that a scientific technique must be deemed legally unreliable simply because that technique has obtained general acceptance in only one branch of science.

By its terms, the Reed test states that a scientific technique is to be judged in the context of the "relevant scientific community” by experts in the "particular scientific field.” Id. Furthermore, the Court in Reed explained:

"The identity of the relevant scientific community is, of course, a matter which depends upon the particular technique in question. In general, members of the relevant scientific community will include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it.” Id. at 382.

We believe that Ms. Hostetler’s demonstrated understanding of the electrophoretic technique at issue, drawn from considerable education and experience, plainly afforded an adequate foundation for her opinion and the trial court’s ruling that the technique is accepted as reliable within the field of forensic chemistry. That her opinion did not exhibit acceptance of the technique in other fields is relevant perhaps, but certainly not controlling. We, therefore, conclude that the trial judge did not err in admitting the scientific evidence complained of.

Sufficiency of the Evidence

Appellant’s fourth and final contention is that the evidence was legally insufficient to support his conviction. As we explained in Allen v. State, 39 Md. App. 686, 690, 389 A.2d 909 (1978), cert. denied, 283 Md. 729 (1978), our review of this issue is quite limited:

"We do not decide the guilt or innocence of the accused. In reviewing the sufficiency of the evidence in a jury trial, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt. Rather it is our limited function to determine whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the offense charged.”

In the present case, the record evidence shows that Mrs. Belcher was attacked and severely injured by a person wielding a knife. The specific intent to murder was not only inferable from the nature of Mrs. Belcher’s injuries and the manner in which they were received, but was expressly articulated by the assailant. Furthermore, the evidence identifying appellant as the criminal agent, though largely circumstantial, was abundant and highly probative. Mrs. Belcher testified, that, at one point during the attack, she thought that she recognized the assailant’s voice as being that of the appellant. Little over an hour after the attack, appellant was found hiding in the boiler room, a room adjacent to the apartment in which the crime occurred. When found, he had blood on his shirt and trousers. Appellant was also found to have a key to the victim’s apartment on his person at the time of the arrest; this corresponded with the fact that the victim’s apartment showed no signs of forced entry. In addition to appellant, the police discovered certain physical evidence in the boiler room, including gloves and a knife, both of which were bloodstained. The blood on these articles, as well as that found on the appellant’s shirt and trousers, was matched to the blood of the victim. The blood of the appellant and the victim was not of the same enzyme structure, nor even the same type. A sheath for the knife was also found in the boiler room; it contained no blood but bore the name "Gary Robinson.” The defense produced no witnesses to rebut or explain any of this extremely incriminating evidence.

Still, appellant claims that there is a crucial flaw in the evidence rendering it legally insufficient: although there was blood on both the gloves and the knife that were found in the boiler room, the blood on the knife was confined to the blade; according to appellant, there was no blood on the handle of the knife. This condition of the physical evidence, appellant suggests, is illogical and somehow irreconcilable with a finding of guilt. Our review of the record reveals that the knife was bloodstained, but the record does not clearly indicate to us that those stains were on one part of the knife and not the other. Nevertheless, even assuming that the facts in this regard are as appellant suggests, we must affirm.

The absence of blood on the knife handle, given the presence of blood on the gloves, is somewhat curious but certainly not inexplicable. Moreover, defense counsel pointed up this discrepancy to the jury in his closing argument, and apparently they did not consider it to be significant. In light of the other evidence adduced, we cannot say that they acted irrationally. Quite to the contrary, we believe that the evidence was more than sufficient to convince a rational jury beyond a reasonable doubt that appellant was guilty of assault with intent to murder.

Judgment affirmed; costs to be paid by appellant.

      . See generally Moylan, The Plain View Doctrine: Unexpected Child of the Great "Search Incident” Geography Battle, 26 Mercer L. Rev. 1047 (1975).

      . The blood on the knife was not identified by use of the described electrophoretic technique; rather, it was matched to the victim by use of the traditional A, B, O grouping only. The blood on the gloves, trousers and shirt was identified by both the A, B, O grouping and the electrophoretic technique as matching the blood of the victim.