text:
    G. HOWARD ROE et ux. v. THE CITIZENS NATIONAL BANK
    [No. 1063
    September Term, 1975.]

      Decided June 9, 1976.

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

      Herbert J. Hirsch for appellants.

      Paul S. Beatty, with whom were Isaac Hecht, Benjamin S. Cohen and Hecht & Beatty on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The issue at the root of this controversy appears deceptively simple. It is, in essence, whether fewer than all of the joint obligors of a loan guarantee may be released, leaving the unreleased obligors responsible for the unpaid portion of the loan.

The record shows that the Levys and the Roes jointly and severally executed a guarantee to The Citizens National Bank, covering up to $200,000.00 of a $326,820.07 loan made to Apollo Therma Products, Inc. by that bank. The corporation defaulted. The bank filed a declaration suing the Roes upon their guarantee obligation, and simultaneously moved for summary judgment, filing an affidavit in support of that motion, the original note, and the guarantee agreement along with its declaration.

The Roes filed a general issue plea denying indebtedness and a special plea asserting that a valid general release had been executed by the bank. A hearing on plaintiffs motion for summary judgment was held on September 18, 1975. A document was introduced at that hearing entitled “General Release.” This document clearly sought to release J. Leo Levy, Jr. and Rachel S. Levy, from the guarantee agreement and provided in its final paragraph:

“It is understood and acknowledged that the granting of this General Release to J. Leo Levy, Jr. and Rachel S. Levy shall not release George Howard Roe and/or Gladys Terry Roe from any obligations which they have to the bank pursuant to the aforesaid Guaranty dated September 15, 1971.”

Notwithstanding this language in the release, appellants contend “that the release of the co-guarantors (Levys) under seal released all of the guarantors or obligors.” To support their contention, appellants recite encyclopedic and case law quotations, hoping to convince this Court that a release under seal of fewer than all co-guarantors releases them all, regardless of express language in the instrument of release to the contrary. A thorough reading of the authorities, from which appellants selectively quote, does not sustain that premise.

Although appellants begin by quoting 19 M.L.E., Release, § 5 as follows:

“The unconditional release of one or more joint debtors or [joint] obligors releases them all, at least where the release is a technical one under seal.”,

they omit the statement immediately preceding which qualifies it:

“Generally speaking, the question as to what persons are released by a release depends on the intention of the parties as gathered from a proper construction of the instrument.”,

and the statement immediately following which circumscribes it:

“On the other hand, a court of equity will not give a release an operation beyond the intention of the parties and the justice of the case, and at law the intention of the releasor not to release obligors other than the releasee manifested by an express reservation in an unsealed instrument has been given effect by construing the instrument as a covenant not to sue.”

Appellants’ brief directs our attention to a quotation from Booth v. Campbell, trustee of Harper, 15 Md. 569, 574, presumably to convince us that the rule is without exception:

“A release or discharge of one of the defendants would operate as a discharge of all. This principle is so well settled as to require no authorities to be cited in its support. If the matters alleged in the plea are sufficient in law to operate a discharge of R. B. Fitzgerald from all liability upon the judgment, the inevitable consequence is, that it cannot be enforced against the appellant; for the just and sufficient reason, that he ought not to be compelled to pay the money, without being entitled to claim contribution from the other defendants, which he cannot do if they have been discharged from the judgment by the act of the plaintiff.”

That case, however, was distinguished and explained in Valley Savings Bank v. Mercer, 97 Md. 458, 477.

“Another Maryland case cited by the defendants is Booth v. Campbell, 15 Md. 569, in which it was said that a release or discharge of one of several defendants in a judgment, jointly liable thereon, operates as a discharge of all. Undoubtedly an effective and valid release must have that effect, but the question again arises what kind of a release or contract did the Court in that case hold would operate as a discharge. There was a parol agreement on the part of the judgment creditor and one of the judgment debtors that if the latter would pay twenty per cent on the amount of the judgment, [and collateral consideration] the judgment creditor would ‘release the judgment.’ The sum agreed upon was paid and a receipt of the creditor therefor was filed in the cause with an entry on the record of its being in full of said judgment. This, together with the additional collateral consideration, was held to be a good accord and satisfaction. In other words, the judgment having been satisfied all liability therein was discharged. The very record which showed the existence of the judgment evidenced its satisfaction, and being satisfied the judgment of course cannot be made the basis of a suit against anybody.”

In the case before us, the consideration for the release did not amount to full satisfaction of the debt. Thus, the reasoning upon which the result reached in Booth is based is not applicable here. We note that, in Booth, the release filed in the court clerk’s office acknowledged there had been payment in full and “amounted in law to a satisfaction of the judgment...” 15 Md. at 575. The release at bar clearly indicates that less than full payment was made by the Levys and the creditor’s right against the Roes is expressly reserved.

Although, under the common law, the release of one joint debtor was a release of all, modern courts have generally honored an intention to the contrary clearly expressed in the release instrument. In order to reach that common sense result, courts have treated a qualified release of fewer than all joint obligors as a covenant by the creditor not to sue rather than as a release. The effect of a covenant not to sue some but not all joint-obligors is explained at § 338 of Williston on Contracts:

“A covenant not to sue a debtor or to forbear perpetually has from early times been held a bar to the original cause of action. This is to avoid circuity of action; for, if the plaintiff in the original action should recover, the defendant could recover precisely the same damages back for breach of the covenant to forbear or not to sue. Instead of permitting the double action, the court produces the same effect more simply by giving judgment for the defendant in the original action. But in case of a covenant not to sue one of two or more joint debtors the intention of the parties can be attained only by enforcing in terms both the original promise and the later covenant. For if in an action for the debt the covenantee had judgment, it would also discharge his co-debtors — a result not contemplated by the parties. But if the covenant is enforced in terms, the obligee retains his right of action at law against all the joint debtors, becoming liable in turn to the one to whom the covenant to forbear or not to sue was given for any damage which the latter may suffer by the breach of covenant. If any judgment obtained against the joint debtors is not satisfied out of the property of the covenantee, such damages can only be nominal. Accordingly, such a covenant given to one joint obligor does not have the effect of a release: The debt is not discharged; and the other joint obligors remain bound.
The same effect is given to a release by the creditor which contains an express reservation of his rights against the other joint debtors. In fact such an instrument is in terms contradictory. If it is to be regarded as a true release of one joint debtor, it would be legally impossible to reserve rights against the others, for their obligations could not continue to exist without all being bound. In order to give effect to the manifest intention of the parties as nearly as possible, the courts have therefore held that a release with such a reservation is in legal effect no release at all, but merely a covenant not to sue. So in the case of joint and several liabilities, if the creditor while discharging the several, liability expressly reserves the joint right, it is not discharged. Likewise, the joint liability may be released with a reservation of the several right. A right against other debtors is held to be reserved in any case where it appears from the terms of the release that it was not intended or expected that all the debtors should be released.”

In Maryland, that procedure was adopted in Shriver v. Carlin & Fulton Co., 155 Md. 51, 60-65.

“... Freeman in his work on Judgments, sec. 1141, states that the prevailing rule is that a release of one joint judgment debtor does not release his codefendants, if the release ‘shows that it was not intended to discharge other debtors except to the extent of the payment made, if any, by the one released.’ The exception appears to have grown out of an effort to escape the harshness of the common law rule, that a release of one obligor in a bond or one joint tort-feasor operated to discharge all other jointly bound with him. And the device adopted to accomplish that end was the fiction of a covenant not to sue. That is, conceding that a technical release of one joint obligor would release his co-obligors, the courts said, in cases where the deed of release contained a proviso that the obligee reserved the right to proceed to collect the balance due him on the bond from the other obligors, that it was not a technical release but a covenant not to sue, and as such could be given the effect, either at law or in equity, not to release the entire judgment but only to exonerate the debtor to whom the release was given from liability to the releasing creditor, but to leave him subject to all rights of contribution or subrogation which his co-obligors might have against him.” Id. at 61.

The Shriver Court made it clear that a qualified release could not inure to the detriment of the creditor as the recorded satisfaction of the judgment in Booth had done:

“The manifest intention of the plaintiff was to release only White, but to retain the judgment against the other defendants, and there is no reason why that intent should not be given effect. It could not possibly have prejudiced White’s co-defendants. In enforcing his judgment the plaintiff was not obliged to proceed against them jointly, but he could have collected it from any one or from all of them as he saw fit, but he could do nothing without their consent which would affect their rights inter sese, and, if as a result of the order White’s co-defendants suffered any loss, or the amount which they might be required to pay to satisfy the judgment was increased, to that extent the plaintiffs rights against them would be extinguished. Moreover, if White paid less than his share of the judgment, and his co-defendants paid the balance due, they could, notwithstanding the order of satisfaction as to White, compel him to contribute whatever was necessary to make up the part which he should have paid, and if he paid more than his share, certainly his co-defendants were not injured, because it decreased not only their joint but their several liability.” 155 Md. at 64-65.

This language is eminently clear when read in context and weighs in appellee’s favor so overwhelmingly as to put appellants to flight. But Parthian-like, even in retreat, they fire a parting dart.

Appellants contend that, even if a qualified release does not generally release all obligors, this particular release would do so because it is under seal. They point out that in Shriver, upon which the lower court relied in ruling in favor of appellee, the release was not under seal. Appellants cite Commercial, Etc., Bank v. McCormick, 97 Md. 703, presumably for the principle that the seal on the release signifies that the underlying obligation has been fully satisfied.

In that case, suit was filed against 18 obligors of a note although 6 of them had been released upon part payment. Only one (not one of the 6 released) was summoned and the case was heard against him alone. The primary question was the effect of the agreement of partial release upon a joint-debtor not a party to the release. The agreement recited a partial consideration and was not under seal. The McCormick Court, citing Ingersoll v. Martin, 58 Md. 67 at 74, discussed the principle that a release under seal imports consideration and stated, as dicta, that such a release of an existing debt is sufficient to fully discharge it, 97 Md. at 707. See also State, use of Barnard v. Gott, 44 Md. 341, 347. However, the result reached in McCormick was completely contrary to that which appellants would have us believe, and it was reached by use of the legal fiction, later discussed in Shriver, of treating the partial release as a covenant not to sue. The Court noted that:

“Throughout the case this agreement seems to have been treated as a covenant not to sue. As we have already seen, it is not a technical covenant, as it is not under seal, but treating it as a covenant not to sue, the authorities do not give it the effect contended for by the appellee. It is true that it was said in Clopper v. Union Bank, 7 Harris & Johnson, 92, that a covenant perpetual, as that the covenantor will not sue without any limitation as to time, is in law a release and may be pleaded in bar as such, but the authority cited for that is 5 Bac. Abr. Tit. Release, (A2) 683, and on the same page it is said ‘If two are jointly and severally bound in an obligation and the obligee by deed covenants and agrees not to sue one of them this is no release and he may notwithstanding sue the other.’ There are many cases, and the principle would seem to be thoroughly settled, to the effect that a covenant not to sue one of two obligors does not release the other, but to have that effect there must be a technical release under seal. Bradford v. Prescott, 85 Me. 482; Line v. Nelson, 38 N.J.L. 358; Berry v. Gillis, 17 N.H. 9; Bozsman v. State Bank, 7 Ark. 328; Crane v. Alling, 15 N.J.L. 423; and other cases that may be found in 20 Am. & Eng. Ency. of Law (1 ed.), 741 and 751 notes. The reason is that a technical release, being conclusive evidence of payment in full, is regarded as a performance and ex-tinguishment of the bond, and consequently a discharge of all the obligors, while a covenant not to sue one of several obligors is not only no evidence of the payment of the bond, but implies, if it does not express, the very contrary. When a covenant not to sue is made with a sole obligor, it is permitted to be plead in bar to prevent circuity of action, but a covenant not to sue one of several obligors is not pleadable in bar.” 97 Md. at 708-709.

The use of this legal fiction that a partial release is actually a covenant not to sue, in attempting to attain common sense justice, would backfire if we were to allow the presence of a seal on the release to contradict the clear intent of the parties. A release of fewer than all of the joint obligors would dare not be sealed by the creditor for fear of having it interpreted as importing full payment and final satisfaction. On the other hand, to effect a release of a joints obligation by partial payment, he would have to have the release sealed if it was to have the effect of a covenant not to sue, so as to protect his right against the remaining obligors. We will not indulge in a furtherance of the legal fiction as to the meaning of a seal when the intention of the parties is clearly expressed to the contrary.

It is clear in this case that the creditor expressly denied any intention of releasing the Roes. The expression of such intention is controlling in determining when a release of a joint obligor does not release all obligors. This result is dictated by our own common sense and the manifest justice of carrying out the expressed intention of the parties to the release. ,

In the recent case of Wheaton Lanes v. Rinaldi, 236 Md. 525, 531, the Court of Appeals employed the direct approach in order to reach the result intended by the parties to the release. Without specifically mentioning the legal fiction of treating a release as a covenant not to sue, it pointed out that the rule concerning releases had been concisely stated in Shriver, supra, at 64:

“... The equitable rule now prevails, and a release is to be construed according to the intent of the parties and the object and purpose of the instrument, and that intent will control and limit its operation.’ ”

That is a clear expression of the law of Maryland and is controlling in this case.

But for the contention that the Levy release also released appellants, it should be noted that neither the affidavit appellants filed nor their memorandum in opposition to the motion for summary judgment contain any facts which would justify thé denial of that motion. This failure factually to contradict the facts recited in appellee’s affidavits constitutes an admission of those facts for purposes of the motion. Md. Rule 610.a.3. Since there was no genuine dispute as to any material fact pursuant to Md. Rule 610.d.l, the trial judge properly granted the motion for summary judgment.

Judgment affirmed.

Costs to be paid by appellants.

      . Mr. and Mrs. J. Leo Levy, Jr. (wife, Rachel S.)

      . Mr. and Mrs. G. Howard Roe (wife, G. Terry)

      . We are told in the appellee’s brief that the Levys paid $35,000.00 to obtain their release. The record does not disclose the amount of consideration paid other than- the nominal consideration recited in the release.

      . Although not specifically mentioning Booth v. Campbell, supra, for this point, the Shriver Court did have Booth in mind, citing it for another principle.

      . Appellants’ brief includes a deceptively altered quotation from Shriver which conveys a meaning contrary to that expressed by the holding of the Court in that case.

      . In an “Objection to Motion for Summary Judgment” filed on September 24, 1975, five days after judgment was entered, appellants question the balance due. That issue was not raised on appeal and is not before us for consideration.


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    FREE STATE REALTY COMPANY, INC. v. MAYOR AND CITY COUNCIL OF BALTIMORE
    [No. 1064,
    September Term, 1975.]

      Decided June 9, 1976.

      The cause was argued before Powers and Menchjne, JJ., and Richard M. Pollitt, Associate Judge of the First Judicial Circuit, specially assigned.

      Jay Fred Cohen for appellant.

      Richard K. Jacobsen, Chief Solicitor, with whom were Benjamin L. Brown, City Solicitor, Ambrose T. Hartman, Deputy City Solicitor and Harry S. Swartzwelder, Jr., Associate City Solicitor, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Purporting to act pursuant to the provisions of Article 21 of the Annotated Code of Maryland, Title “Real Property,” Subtitle XII “Eminent Domain,” the Mayor and City Council of Baltimore (Condemnor or City) filed a condemnation petition for the property known as 2526 W. Franklin Street, in the City of Baltimore, against Free State Realty Company, a body corporate (property owner). The petition alleged, inter alia, that the subject property was “to be acquired for urban renewal purposes, namely, 26-H Project.” Attached to the basic condemnation petition was a second petition for immediate possession and title under Article 4 of the Code of Public Local Laws, Subtitle 21-16, as amended by Chapter 420 of the Laws of Maryland, 1972. Property owner filed an answer resisting condemnor’s claim of entitlement to immediate possession and title, serving to bring the cause on for hearing in the Court of Common Pleas upon the issue in accordance with the statute. On July 23, 1975 the following order was passed:

“The Court finds that it is necessary for the Petitioner, Mayor and City Council, to acquire immediate possession and title to said property interest as alleged in Paragraph Two of said Petition.
“The Court specifically finds that the necessity for the taking of such immediate possession of and title to said property is not due to any substantial fault or neglect on the part of the Petitioner.
“Relief prayed by Petitioner is hereby granted.”

On appeal, property owner broadly attacks as unconstitutional the power of the Mayor and City Council of Baltimore to condemn in the circumstances of the subject case, as well as the form and sufficiency of the action itself.

We see no constitutional, statutory or procedural deficit.

Constitutional and Statutory Authority

The constitutional base supporting the subject action is to be found in Article XI-B of the Maryland Constitution. In appropriate part it reads as follows:

“SECTION 1. AUTHORITY TO BALTIMORE CITY TO ACQUIRE AND DISPOSE OF PROPERTY.
The General Assembly of Maryland, by public local law, may authorize and empower the Mayor and City Council of Baltimore:
(a) To acquire, within the boundary lines of Baltimore City, land and property of every kind, and any right, interest, franchise, easement or privilege therein, by purchase, lease, gift, condemnation or any other legal means, for development or redevelopment, including, hut not limited to, the comprehensive renovation or rehabilitation thereof; and
“All land or property needed, or taken by the exercise of the power of eminent domain, by the Mayor and City Council of Baltimore for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the Mayor and City Council of Baltimore pursuant to this Article is hereby declared to be needed or taken for a public use.
“SECTION 2. ADDITIONAL POWERS AND RESTRICTIONS.
The General Assembly of Maryland may grant to the Mayor and City Council of Baltimore any and all additional power and authority necessary or proper to carry into full force and effect any and all of the specific powers which the General Assembly is authorized to grant to the Mayor and City Council of Baltimore pursuant to this Article and to fully accomplish any and all of the purposes and objects contemplated by the provisions of this Article, provided such additional power or authority is not inconsistent with the terms and provisions of this Article or with any other provision or provisions of the Constitution of Maryland. The General Assembly may place such other and further restrictions or limitations on the exercise of any of the powers which it may grant to the Mayor and City Council of Baltimore under the provisions of this Article as it may deem proper and expedient.” (Emphasis supplied.)

The breadth of scope of Maryland Constitution Article XI-B, in its present form was commented upon in Master Royalties v. Baltimore City, 235 Md. 74, 200 A. 2d 652 (1964), the Court declaring that it embodies “a broader concept of public use, and it is clear that under the express language ... the powers of eminent domain may be exercised by the City (if authorized by the General Assembly) to acquire property for redevelopment----” (at 84 [657]) The Court added, at the same page: “Such provisions of the State Constitution could not be unconstitutional unless they were in conflict in some way with the Federal Constitution

The Court in Master Royalties, supra, after discussing Federal due process and equal protection aspects of condemnations for area development or redevelopment found no constitutional deficit in the proceedings there under consideration.

The holding in Master Royalties, there dealing with a particular urban renewal plan designed for rehabilitation of a “slum blighted or deteriorated area,” was that the táking was for a public purpose and that it was unnecessary to “condemn all at once.”

The Legislature, in the exercise of the power and authority conferred upon it, granted certain powers of condemnation to the Mayor and City Council of Baltimore by statutes now codified as Article II, § 15 Charter of Baltimore City (1964 Revision). Section 21-16 of the Code of Public Local Laws of Baltimore City (1969) (as amended by Ch. 420 (Acts of 1972)) provided the authority to utilize “quick take” procedures.

These statutes, in parts here pertinent, read as follows:

Article II, § 15
“The Mayor and City Council of Baltimore shall have full power and authority ...
(a) To acquire, within the boundary lines of Baltimore City, land and property of every kind, and any right, interest, franchise, easement or privilege therein, including land or property and any right or interest therein already devoted to public use, by purchase, lease, gift, condemnation or any other legal means, for development or redevelopment, including but not limited to, the comprehensive renovation or rehabilitation thereof; provided, however that any land or property owned by the State of Maryland or the Housing Authority of Baltimore City shall not be acquired by the Mayor and City Council of Baltimore without the prior consent of the State or the Housing Authority of Baltimore City, as the case may be;
(b) To develop or redevelop, including but not limited to, the comprehensive renovation or rehabilitation of, any and all land or property acquired by any of the methods hereinbefore mentioned.
(g) To vest jurisdiction or authority to exercise or perform all or any part of the aforegoing powers in any suitable board, commission, department, bureau or other agency of the Mayor and City Council of Baltimore now in being or in any new board, commission, department, bureau or agency of the Mayor and City Council of Baltimore, which it is hereby empowered to create and establish for such purposes;. . . .”
Section 21-16, As Amended
“21-16. Condemnation; immediate taking.
(a) Petition for immediate possession.
Whenever any proceedings are instituted under Article 33A [now 21] of the Code of Public General Laws of the State of Maryland by the Mayor and City Council of Baltimore for the acquisition of any property for any public purpose whatsoever, the Mayor and City Council of Baltimore, simultaneously with the filing of said proceedings or at any time thereafter, may file a Petition under oath stating that it is necessary for the City to have immediate possession of or immediate title to, and possession of said property, and the reasons therefore, and that the necessity for immediate taking is not because of any substantial fault or neglect of the City. The City shall also set forth in said Petition for Immediate Taking of possession or immediate taking of title the amount it estimates to be the fair value of the said property and/or title to be acquired, and of the respective interests of each of the owners thereof if more than one, which shall be substantiated by the Affidavits of two qualified appraisers, attached to said Petition. The City shall deposit into Court simultaneously with the filing of said Petition the amount of said estimate of the fair value of the property to be acquired.
(b) Upon the filing of any such Petition for Immediate Taking of possession, the Court may direct the City to give such notice to the Defendants as the Court may deem proper. The Court may set the matter for hearing on the Petition, but any such hearing shall be held within seven days from the date of the filing of such Petition; otherwise, the Court shall act on said Petition exparte within said seven day period.
(c) In cases where the City files a Petition for immediate taking of title and possession to the said property in fee simple absolute or such lesser estate or interest as is specified in the Petition, possession and title thereto shall irrevocably vest in the Mayor and City Council of Baltimore ten days after personal service of the petition upon each and every defendant unless the Defendants or any of them shall file an answer to the Petition within the said ten day period alleging that the City does not have the right or power to condemn title to the property. In the event that the defendants or any of them should file an answer, the court shall schedule a hearing within fifteen days of the date of the filing of an answer, which hearing shall be only for the purpose of contesting the right or power of the City to condemn title to the property. The trial court shall render its decision within fifteen days from the final day of said hearing. The City or the defendants or any of them shall have an immediate right of appeal to the Court of Appeals of Maryland from the decision of the trial court.”

In implementation of the powers thus conferred upon it, the Mayor and City Council of Baltimore enacted Ordinance 152, approved June 28,1968. Among the legislative Findings and Declaration of Necessity set forth in § 20 of Ordinance 152 is included the following:

“DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
Findings and Declarations of Necessity
Sec. 20. (a) It is hereby found and determined: (1) that there exist within the City of Baltimore slum, blighted, deteriorated, or deteriorating areas, which constitute a serious and growing menace, injurious and inimical to the public health, safety, morals and general welfare of the residents of the City of Baltimore; (2) that the existence of such areas and the growth and spread thereof and the deterioration or threatened deterioration of other areas (i) contribute substantially and increasingly to the spread of disease and crime, and to losses by fire and accident; (ii) necessitate expensive and disproportionate expenditures of public funds for the preservation of the public health and safety, for crime prevention, correction, prosecution, and punishment, for the treatment of juvenile delinquency, for the maintenance of adequate police, fire, and accident protection, and for other public services and facilities; (iii) constitute an economic and social liability; (iv) substantially impair or arrest the sound growth of the community; (v) retard the provision of decent, safe, and sanitary housing accommodations; (vi) aggravate traffic problems and substantially impair or arrest the elimination of traffic hazards and the improvement of traffic facilities; (vii) depreciate assessable values; (viii) cause an abnormal exodus of families from the city; and (ix) are detrimental to the health, the wellbeing and the dignity of many of the residents of the City of Baltimore; (3) that such areas cannot be dealt with effectively by the ordinary operations of private enterprise without the aids herein provided: (4) that the rehabilitation or elimination, in whole or in part, of slum, blighted, deteriorated, and deteriorating areas and the prevention of the spread or development of blight in, and the deterioration of, areas which are free of blight are public uses and purposes requiring the exercise of the governmental powers of the City of Baltimore in the public interest.
(b) It is further found and declared that some slum or blighted or deteriorated areas, or portions thereof, may require comprehensive acquisition, clearance, and disposition with or without prior development or redevelopment, since the prevailing conditions of decay may make impracticable the reclamation of the area by conservation or rehabilitation; that some such areas or portions thereof and some deteriorating areas or portions thereof may be susceptible of conservation or rehabilitation in such a manner that the conditions and evils hereinbefore enumerated may be eliminated, remedied, or prevented without comprehensive acquisition and clearance; that other areas not yet deteriorated or deteriorating, or portions thereof, may be conserved so that the conditions and evils hereinbefore enumerated may be prevented from spreading thereto or arising therein; and that all such areas within the boundaries of the City of Baltimore may be benefited through the • enforcement of applicable regulatory codes relating to buildings, housing, sanitation or safety, the rendering of services to community organizations or through a combination of other means provided in this ordinance.” (Emphasis supplied.)

The Ordinance in § 21 provided for a Department of Housing and Community Development and a Commissioner of Housing and Community Development and in § 26 (H) authorized condemnation proceedings for the purposes for which the condemnor acted in the subject proceedings. Section 26 (H) reads as follows:

“(H) Subject to the prior approval of the Board of Estimates, to acquire, for and on behalf of the Mayor and City Council of Baltimore, any single family or multiple family dwelling unit or other structure within the boundary lines of Baltimore City, by purchase, lease, condemnation, gift or other legal means, for development and redevelopment, including but not limited to the renovation, rehabilitation and disposition thereof, when the Commissioner has determined: (i) that such dwelling unit or other structure has deteriorated to such extent as to constitute a serious and growing menace to the public health, safety and welfare; (ii) that such dwelling unit or other structure is likely to continue to deteriorate unless corrected; (iii) that the continued deterioration of such dwelling unit or other structure may contribute to the blighting or deterioration of the area immediately surrounding the said dwelling unit or other structure; and (iv) that the owner of such dwelling unit or other structure has failed to correct the deterioration thereof.”

We think that condemnation of individual private properties to prevent damaging blight is as well within the police power of the City of Baltimore (where authorized by the General Assembly) as is the condemnation of all property for removal and renewal in an area that blight has destroyed.

We find very persuasive here the language used in Romeo v. Cranston Redevelopment Agency, 254 A. 2d 426 (R.I. 1960), at 433:

“So, too, we believe that the redevelopment of an arrested blighted area is a device somewhat akin to the surgeon’s scalpel. As the surgeon wields his scalpel to prevent a condition from further imperiling the well-being of his patient, a redevelopment agency may initiate a project in an arrested blighted area which may be compared to preventive surgery. As the doctor is concerned with the revitalization of his patient, the redevelopment agency’s goal is the revitalization of the community.”

We believe that Ordinance 152 sufficiently indicated a public purpose and that § 26 (H) thereof set up adequate standards to guide the Department of Housing and Community Development, the Commissioner and the Board of Estimates in exercising the powers thereby conferred. Masters Royalties v. Baltimore City, supra, at 86 [658]; Herzinger v. City of Baltimore, 203 Md. 49, 98 A. 2d 87 (1953).

Form and Sufficiency

It will have been observed that § 21-16, authorizing a “quick take,” required that the petition shall state under oath “the reasons therefore and that the necessity for immediate taking is not because of any substantial fault or neglect of the City.”

Appellant suggests that because the section is codified within a code bearing a subtitle “Streets, Bridges and Highways,” subheading “Opening and Maintaining Streets,” the within petition must fail because “The Petition ... and Affidavit do not in any way deal with streets, bridges and highways and the opening and maintaining of them.”

We find the contention without merit. The section itself explicitly provides that it has application to “... any proceedings ... for the acquisition of any property for any public purpose whatsoever.”

The trial judge found that “the necessity for the taking of such immediate possession of and title to said property is not due to any substantial fault or neglect on the part of [the City].”

The record shows that all statutory conditions precedent to condemnation have been met. We perceive no error.

Order affirmed.

Costs to be paid by appellant.

      . Subtitle XII of Article 21 is a recodification of former Article 33A except that § 3 of the former Article was omitted because of its incorporation into Maryland Rule U5.

      . A reference to Baltimore City Ordinance 152, approved June 28,1969, pertinent parts of which will appear in this opinion, infra.


author: Lowe, J.,

text:
    ROCKSHIRE CIVIC ASSOCIATION, INC. et al. v. THE MAYOR AND COUNCIL OF ROCKVILLE et al. ROCKSHIRE CIVIC ASSOCIATION, INC. et al. v. CITY OF ROCKVILLE PLANNING COMMISSION et al.
    [No. 1094,
    September Term, 1975.]
    [No. 1096,
    September Term, 1975.]

      Decided June 9, 1976.

      The causes were argued before Morton, Lowe and Mason, JJ.
    In Appeal No. 1094, submitted on brief by Joseph A. Lynott, Jr., and Lynott & Craven, P.A. for appellants.
    In Appeal No. 1094, submitted on brief by Roger W. Titus, City Attorney, and Paul T. Glasgow, Assistant City

      Attorney for appellees The Mayor and Council of Rockville. Submitted on brief by Stanley J. Nadonley, John Burgess Walsh, Jr., and Mannes, Nadonley & Townsend and Aaron L. Handleman, David E. Betts and Betts, Clogg & Murdock for other appellees.
    In Appeal No. 1096, Joseph A. Lynott, Jr., with whom wereLynott & Craven, P.A. on the brief, for appellants.
    In Appeal No. 1096, Paul T. Glasgow, Assistant City Attorney, with whom was Roger W. Titus, City Attorney, on the brief, for appellees City of Rockville Planning Commission and The Mayor and Council of Rockville. Stanley J. Nadonley, John Burgess Walsh, Jr., and David E. Betts, with whom were Aaron L. Handleman and Mannes, Nadonley & Townsend and Betts, Clogg & Murdock on the brief, for other appellees.
   Lowe, J.,

delivered the opinion of the Court.

This controversy stems from the development during the past decade of 286.6 acres of land as a Planned Residential Unit pursuant to the zoning laws of the City of Rockville. Under the ordinance which provides for planned residential units, preliminary approval of a development is required in two stages. The first, or Exploratory Stage, requires submission of a conceptual plan for approval by the Mayor and Council of Rockville showing the location, size and arrangement of residential, non-residential and recreational uses, traffic circulation and development schedule. Commercial uses, if not previously available, are permitted, with size limitations, only insofar as they will serve the convenience of the residents of the planned residential unit. If the Exploratory Application is approved by the Mayor and Council, the developer may seek the secondary approval by providing a Detailed Planning Application to the City Planning Commission. The Commission is charged with the responsibility of approving or disapproving the submitted documents in accordance with the objectives of the ordinance and within the limitations of the approval of the Exploratory Application by the Mayor and Council, Rockville Zoning Ordinance § 5-423.

In the case at bar, the developer filed its Exploratory Application on October 15, 1965 and, following several revisions and a public hearing, the application was approved on March 7, 1966. Of particular significance, we note here that the application which the Mayor and Council approved provided for an area of 6.0 acres to be devoted to commercial use.

In May of 1967, the Rockville Planning Commission reviewed and approved a Detailed Planning Stage Application for the community which came to be known as Rockshire. Subsequent detailed plans for particular portions of Rockshire were submitted to the Commission and approved from time to time through June of 1970. As Rockshire matured physically, it seems also to have matured in sophistication, for there developed the Rockshire Civic Association, Inc., which, along with individual property owners, became the primary protagonist here.

This particular controversy developed as a result of the filing with the Commission of a Detailed Planning Stage Application for a shopping center on April 9, 1973. The application proposed that 10.23 acres of the 20 acres still undeveloped be committed to that commercial purpose with a proposed gross floor area of 103,600 square feet. Subsequently the applicant-developer reduced that request to an area of 6.5 acres with 65,000 square feet proposed gross floor area.

The Planning Commission conducted a public hearing on May 29,1974 at which substantial testimony was heard. The Commission denied the application on July 24, 1974. Applicant appealed the denial and the Mayor and Council remanded the application to the Planning Commission for the taking of further evidence. On February 19, 1975, another public hearing was held by the Commission which again resulted in its disapproval of the proposed 65,000 square foot shopping center. Immediately thereafter, the applicant filed a new Detailed Planning Stage Application proposing a shopping center of 52,915 square feet, some 12,000 square feet less than previously requested in the rejected proposal. The Commission, presumably relying for its decision on the surfeit of testimony at the previous hearings and on studies which had been provided for those hearings, approved that application on June 10,1975.

The Rockshire Civic Association, Inc. and certain named residents of Rockshire appealed that administrative ruling to the Circuit Court for Montgomery County and also filed suit in the Circuit Court for Montgomery County, In Equity, against the Mayor and Council of Rockville and the City Planning Commission, as well as the applicant-developer and a shopping center contract lessee. The purpose of this equity suit was to challenge and vacate both the resolution of the Mayor and Council of Rockville approving the Exploratory Application on March 7, 1966, and the June 10, 1975 approval of the shopping center by the Rockville Planning Commission. The suit also sought to enjoin all parties from using the property subject to the suit in any manner other than for single family residential development. A demurrer to the equity suit was sustained without leave to amend and the administrative appeal was dismissed, resulting in an affirmance of the Planning Commission’s action. The Rockshire Civic Association, Inc. and its associate parties, have appealed both decisions. The appeal to this Court from the equity action is numbered 1094 and the appeal from the dismissal of the administrative appeal is numbered 1096. We respond to both appeals in this opinion and will address them chronologically.

Having fully reviewed the voluminous records in light of appellants’ briefs and arguments, our own response need be but very brief. The issues raised on appeal are the same as those raised below. In both cases we find the comprehensive opinions of the trial judge, the Honorable John F. McAuliffe, not only to be correct but comprehensively so. We will, therefore, affirm in both instances by adopting as our own the opinion of Judge McAuliffe in each case. We will comment only to the extent that we believe the issues need clarification.

No. 1094.

Opinion of McAuliffe, J.

“Rockshire Civic Association, Inc. and seven individuals have filed a ‘petition,’ challenging the validity of the action of the Mayor and Council of the City of Rockville in approving Exploratory Application No. PRU 4 on March 7, 1966, and also challenging the validity of the action of the Planning Commission of the City of Rockville in approving Detailed Planning Application No. PRU 4-H-75 on June 10,1975.
Each Defendant has filed a Demurrer, suggesting:
1. The Plaintiffs have not alleged, and under the facts of this case are unable to allege, that they were present at the public hearing which preceded the approval of Exploratory Application No. PRU 4 in 1966, or that they participated in anyway in those proceedings.
2. That it appears from the face of the Plaintiffs’ pleading that they are barred by laches.
3. That the exclusive remedy of the Plaintiffs to challenge the recent action of the City of Rockville Planning Commission is by administrative appeal to this Court, which has previously been taken.
For all of the reasons suggested by the Plaintiffs, we shall sustain each Demurrer, and prohibit amendment of the Bill of Complaint.
The principal thrust of the ‘petition’ is to challenge the action of the Mayor and Council of Rockville in approving Exploratory Application No. PRU 4. The Plaintiffs have not alleged that they were present at the public hearing, or participated in any way in the proceedings before the Mayor and Council of Rockville, which involved this contested action. Therefore, they have not alleged facts which would support their right to appeal or challenge such action, and the mere conclusory statement that they are ‘aggrieved’ by the action of the Mayor and Council is insufficient. It further appears from representations made at oral argument of this Demurrer that the Plaintiffs would be unable to make allegations of presence or participation in the original hearings or proceedings.
The defense of laches may be made in equity by demurrer where it appears from the face of the Bill of Complaint that the bar is applicable. Hungerford v. Hungerford, 223 Md. 316 (1960); Cargill v. Brady, 231 Md. 455 (1963); Hall v. Barlow Corp., 255 Md. 28 (1969). Since the doctrine of laches involves not only unreasonable delay but also resulting prejudice to the Defendants, each of these elements must appear on the face of the Bill of Complaint if the Demurrer is to be successful on this ground. Hall v. Barlow Corp., supra. A delay of 9-1/2 years in filing a challenge to the approval of an Exploratory Application for a Planned Residential Unit, is clearly unreasonable delay. Furthermore, prejudice need not be shown where an action at law would be barred by limitations. Brashears v. Collison, 207 Md. 339 (1955). While no provision for direct appeal from the action of the Mayor and Council existed in the Rockville Zoning Ordinance in 1966, such provision has existed in the Zoning Ordinance for at least the last several years. Where a direct right of appeal exists, the appeal must be noted within 30 days of the action of the Mayor and Council, and thus it is clear that the delay in this case is well beyond the applicable period of limitations at law. Under these circumstances, and considering the magnitude of the delay, a separate showing of prejudice is not required.
Finally, as to that portion of the ‘petition’ which seeks to challenge the action of June 10, 1975 of the City of Rockville Planning Commission, it is clear that §2-104 of the Zoning and Planning Ordinance of the City of Rockville provides for a direct appeal from such actions to this Court in accordance with the Maryland Rules, Chapter 1100, Subtitle B. Under Rule Bla of the Maryland Rules of Procedure, the statutory appeal is therefore the exclusive remedy.
Accordingly, it is this 8th day of October, 1975, by the Circuit Court for Montgomery County, Maryland, in Equity,
ORDERED, that the Demurrers of the Defendants be and the same are hereby sustained, and amendment of the Bill of Complaint is prohibited.”

Appellants’ argument on appeal is merely a restatement of the issues answered by Chancellor McAuliffe. They contended below that the allegation that they are now property owners in the vicinity of the contested area makes them “parties aggrieved” and add here that the allegation in appellees’ demurrer that appellants were not present at the 1966 public hearing “was added by appellees, and should not have been considered by the Court. .. .” This, they contend, is the meaning of Walker v. D’Alesandro, 212 Md. 163, when it says that a demurrer

“ . . . cannot either contradict facts . . . alleged or add others.. . .”

Appellants misinterpret their role in the case vis-a-vis that of appellees. It was appellants’ responsibility to allege legally sufficient facts to:

“ . . . show an interest in the subject of the suit, or a right to the thing demanded, and proper title to institute the suit concerning it; and if such interest or right to sue be not fully shown by the bill itself, the defendant may demur.” Sellman v. Sellman, 63 Md. 520, 522.

Appellees did not “add” the allegation that appellants had not attended the 1966 hearing; they simply pointed out the absence of that allegation in the “Petition.”

Appellants also reargue that laches should not operate as a bar, citing cases where laches was not á bar to an equity action although a long period of time had elapsed. However, as pointed out by appellants themselves, laches must be determined by the facts and circumstances in each case.

“The devolution of time, alone, does not constitute laches; it is but one of the many circumstances from which a determination of what constitutes an unreasonable and unjustifiable delay may be made.” Parker v. Board of Elec. Sup., 230 Md. 126, 130.

A delay of nine years in contesting the action of the Mayor and Council in approving a community which has been developed and grown to substantial completion is clearly unreasonable and unjustifiable.

No. 1096.

The opinion of Judge McAuliffe in this case we also adopt. It is as follows:

“This is an appeal from the action of the City of Rockville Planning Commission dated June 10, 1975, approving Detailed Planned Residential Unit Application No. PRU 4-H-75.
Neither the original Appellee nor any subsequently intervening Appellee has challenged the standing of Rockshire Civic Association, Inc., and in any event it appears that other individual Appellants are aggrieved persons, and have standing to maintain this appeal.
It appears from the record that on October 15, 1965, the owners of 286.6 acres of land in the City of Rockville filed an application with the Mayor and Council of Rockville to develop said land under the Planned Residential Unit provisions of the City’s Zoning Ordinance. In accordance with that ordinance, the initial filing was denominated an ‘exploratory application.’ This application then became known as Application No. PRU 4, and subsequent detailed planning applications became a part of the basic file, receiving additional letter and year designations. Thus, the case directly involved in this appeal became known as PRU 4-H-75.
Following public hearing, the Mayor and Council of Rockville approved the exploratory stage of PRU 4 by passage of Resolution No. 21-66, on March 7, 1966. Pertaining to the proposed commercial development, the Resolution stated as follows:
‘The town center shall be constructed as a unit, based upon the findings of a Market Analysis as to its total floor area, provided that such findings shall be subject to the review and judgment of the Planning Commission as to the finally approved area to be constructed, and subject to the finding of the Planning Commission as to the existence of an adequate market for the center. . ..’
Following completion of most of the residential units permitted by the plan, the applicant on April 9, 1973, filed Detailed Planning Application PRU 4-G-73, proposing the construction of a shopping facility containing 103,600 square feet of gross floor area. This application was subsequently modified to reduce the proposed gross floor area of the shopping center to 65,000 square feet, but to no avail, for the application was denied by the Planning Commission on July 24, 1974. At that time, the Commission affirmatively stated that based upon evidence of record, it believed the shopping center should not exceed 37,900 square feet of gross floor area.
An appeal from this denial was taken to the Mayor and City Council, and the matter was ultimately remanded to the Planning Commission for further consideration. Additional market study data was received and the matter was reconsidered, but again denied on April 9,1975.
On April 28, 1975, the applicant filed Detailed Planning Application No. PRU 4-H-75, requesting approval of a shopping center containing 52,915 square feet of gross floor area, on a tract comprising 5.77 acres of land. On June 10, 1975 this application was approved by the Commission, and this appeal results from that action.
We shall discuss separately the several contentions raised by Appellants, although not necessarily in the order presented by Appellants.
I. Does the amount of land approved for commercial use exceed that originally authorized by the Mayor and Council of Rockville, and if so, does this constitute a substantial deviation?
Appellants contend the exploratory application sought designation of 5 acres of land for commercial use, and that the action of the Mayor and Council in approving the exploratory application was therefore limited to approval of 5 acres of land for such use. Appellants refer to a memorandum of December 6,1965 from William H. Hussmann, Jr., Director of Planning for the City of Rockville, addressed to the Mayor and Council, as support for their contention that the application as originally filed sought only 5 acres of commercial use. At page one of this ten page memorandum, Director Hussmann set forth a table of comparisons between the proposed plan and the ‘Woodley Gardens Plan’ with which the Mayor and Council were then familiar. In making this comparison, Mr. Hussmann noted that the ‘local commercial’ requested by the application in the instant case was 5 acres.
We have reviewed the original record, and we find this communication of Mr. Hussmann to have been in error. Indeed, the original application and supporting documents make it clear that the request was for 6 acres of commercial land use. It is difficult to see how applicant’s attorney could have made the extent of this portion of the application clearer. At page two of the letter of application, the attorney for the landowner stated as follows:
‘Particular attention is invited to the proposal for development as shown in area marked ‘1’ wherein provision is made for a church, lake, six (6) acres of shopping center, and an eight (8) to ten (10) story building by the lake, proposed to contain 100 units... .’ (emphasis supplied)
Appellees’ Exhibit 4 in evidence, received by the City of Rockville Planning Commission October 15, 1965, and a part of the original submittal, shows in the notes a proposed area of C-l commercial use of 6.0 acres, of the total land area of 286.6 acres.
We are persuaded from an examination of the record that the exploratory application sought approval for 6 acres of commercial land use, and that the subsequent approval of the application granted 6 acres of commercial use.
Although Appellants have suggested that in approving PRU 4-H-75 the Planning Commission has approved the use of 6.5 acres for commercial use, it appears in fact that only 5.77 acres are included in this approval.
Since we conclude that the approval of the Planning Commission is within the land area initially approved by the Mayor and Council, we need not consider the question of substantial deviation.
II. Whether the Mayor and Council improperly delegated zoning authority to the Planning Commission.
Appellants, while recognizing the special character of a Planned Residential Unit, and the ‘special exception’ nature of all proceedings subsequent to the approval of the exploratory application, nevertheless challenge the extent of the authority vested in the Rockville Planning Commission as it related to commercial development. We think Appellants misconceive the effect of the action originally taken by the Mayor and Council, in approving the exploratory application. We view the action of the Mayor and Council as a legislative determination, after notice and public hearing, that 6 acres of the subject property, in an area specifically located, would be reserved for local commercial utilization. We further find that the Mayor and Council did not thereafter delegate to the City Planning Commission any authority to alter this decision as to the location and total area of land designated for future commercial use. Recognizing, however, that the development of this portion of the planned unit would necessarily occur some years later, and no doubt wishing to insure the construction of facilities which would be commercially viable and otherwise consistent with Planned Residential Unit objectives, the Mayor and Council imposed limitations on the construction of the town center. Thus, under the terms of Resolution No. 21-66, the town center could be constructed only as a unit, based upon findings of a market analysis as to its total floor area, with such market analysis subject to the review and judgment of the Planning Commission as to the finally approved area to be constructed, and subject to the findings of the Planning Commission as to the existence of an adequate market for the center. We do not view these specific limitations as an improper delegation of zoning authority, but rather we view them as consistent with the special exception nature of the planned unit development concept. The Planning Commission had no authority to reduce or increase the acreage set aside for commercial development, but under specific guidelines established by the Mayor and Council, it did have the right to limit the actual construction of commercial facilities thereon in accordance with its reasonable interpretation of existing market data.
III. Is the latter action of the Planning Commission void by reason of the failure of the Mayor and Council to make specific findings of fact at the time it approved the exploratory application?
Appellants contend that the Mayor and Council were required by the Zoning Ordinance to make certain findings of fact before approving any exploratory application, and that the failure of the Mayor and Council to do so in 1966 invalidates the present proceedings.
The short answer to this contention is that these Appellants may not now attack an alleged error of form in the action of the Mayor and Council taken in 1966. The instant appeal is from the recent action of the Rockville Planning Commission, and may not serve as a substitute for a direct appeal or a Court challenge to the earlier action of the Mayor and Council of Rockville.
Certainly the error, if indeed any error occurred, was not jurisdictional, and would not affect the validity of these proceedings.
IV. Does the action of the Planning Commission violate the provisions of §5-409 of the present Zoning Ordinance?
At the time of the approval of the exploratory application, the Rockville Zoning Ordinance contained no limitation on the size of commercial development in a Planned Residential Unit. However, effective January 1, 1975, the City of Rockville completely revised its Zoning Ordinance, and in the course of doing so adopted §5-409 which provides as follows:
‘Not more than five (5) acres within any planned residential unit development may be devoted to uses authorized in the C-l zone.’
Appellees counter by advancing three alternative propositions: 1.) That transitional provisions in the new Zoning Code make it clear that this restriction was not intended to apply in limitation of the previous approval of 6 acres of commercial utilization in this planned unit; 2.) that upon substantial development and dedication of their property, the property owners acquired vested rights to the utilization of 6 acres of land in the local commercial category; and, 3.) that in any event the Planning Commission has determined, sub silentio, that manifest injustice would result from a limitation to 5 acres, so that the property owners should be relieved by the provisions of §l-106(c) of the Zoning Code.
We find Appellees’ first argument persuasive. Section 1-106 of the revised Zoning Ordinance provides, in pertinent part, as follows:
‘Any application for approval of a special development procedure that had not been approved ... by the Mayor and Council in the case of planned residential unit development, prior to the effective date of this chapter, may be considered and acted upon, but shall be governed in its entirety by this chapter. Any application that had received the approval hereinbefore stated prior to the effective date of this chapter shall continue in full force and effect and [] be governed thereafter by the provisions of this chapter unless, in the opinion of the Planning Commission, manifest injustice would result.’ (Emphasis added).
Quite obviously, had the exploratory application been pending at the time the new ordinance took effect January 1,1975, the Mayor and Council could not have approved 6 acres for commercial development. However, having approved 6 acres for commercial development prior to January 1, 1975, said decision remains fully effective and is not changed by the new ordinance. Of course, actual construction and all further proceedings before the Commission must be in accordance with the provisions of the new Code, but we think it the clear intent of the legislative body that the determinations made by the Mayor and Council as to any Planned Residential Unit were to survive and remain in full force and effect notwithstanding the adoption of the new ordinance.
This makes it unnecessary to consider the alternative suggestions of Appellees. However, we would note that the question of vested or contract rights in planned residential unit development is an interesting and difficult question, which will no doubt return to the Courts of this State. While it is entirely clear that in conventional zoning applications, the property owner acquires no vested interest in the continuation of existing zoning, in the absence of improvement of the property pursuant to such zoning, it is equally true that we are not dealing with conventional zoning. The landowner invariably dedicates to the public use substantial amounts of valuable property, and improves other areas in a manner perhaps not most desirable to him, in return for the privilege of more intensive development, or commercial development, in other areas of the tract. Reduction of the initially approved commercial areas would clearly result in financial detriment to the owner of the property, but unless it would deprive the owner of all reasonable use of his property, such action may not be constitutionally impermissible. See Mayor & Council of Rockville v. Stone, 271 Md. 655 (1974); Mayor & Council of Rockville v. Henley, 268 Md. 469 (1973). We are pleased to leave this matter for resolution on another day.
We would nqt be able to accept Appellees alternative contention that the Planning Commission had made a determination, sub silentio, that restriction of commercial development to 5 acres would result in ‘manifest injustice’ pursuant to §l-106(c). The Planning Commission made no such finding, and there is no indication that the Commission addressed itself to this issue. Indeed, we believe the Commission proceeded upon the interpretation of §l-106(c) which has been approved by this Court, and therefore found no necessity to consider the issue of manifest injustice.
V. Did the Planning Commission’s approval of PRU 4-H-75, after rejection of PRU 4-G-73 constitute a mere change of mind, or was it based upon a change in the evidence of record?
As previously indicated, on April 9, 1973, the applicant filed Detailed Planning Application PRU 4-G-73, requesting approval for construction of a shopping facility containing 103,600 square feet of floor area. This application was subsequently modified to request 65,000 square feet of area, but was denied by the Planning Commission on July 24, 1974. Appellants refer to the opinion issued by the Planning Commission on July 24,1974, wherein the Commission made specific findings of fact that the evidence then of record would not support the construction of a shopping facility which exceeded gross floor area of 37,900 square feet. Appellants next note that after appeal of its denial to the Mayor and Council and a remand of the issue for further consideration by the Commission, the Commission again rejected the application on April 9, 1975. Thereafter, on April 28, 1975, the applicant filed Application No. PRU 4-H-75, requesting 52.915 square feet of floor area, and this application was approved on June 10,1975.
Suggesting that the Planning Commission had suffered a change of membership, or change of personnel, during these proceedings, and that the approval of Application No. PRU 4-H-75 approximately 60 days following the denial of Application No. PRU 4-G-73 was simply the result of a change of mind, and not the result of any change in the state of the record, Appellants contend that such action is illegal.
In suggesting that the change in the membership of the Planning Commission was itself responsible for the approval, Appellants overlook the fact that the denial of April 9, 1975 occurred well after the change in membership had been accomplished. More importantly, they overlook the fact that subsequent to the specific findings made on July 24, 1974, the Commission received a market report prepared by Larry Smith & Associates, and heard testimony by Mr. Tucker, the author of the report. This testimony and report, if accepted by the Commission, wciuld constitute sufficient evidence to support the Commission’s finding of a need for 52.915 square feet of floor space, and therefore would serve as an adequate basis for the Commission altering its previous findings relating to data supporting only 37,900 square feet. It is to be noted that in again denying Application No. PRU 4-G-73 on April 9, 1975, the Commission did not state its present concept of the gross floor area which would be supported by the record at that point. Accordingly, it is clear that after receipt of the additional evidence, including the report of Larry Smith & Associates, the Commission remained unconvinced of the need for construction of 65,000 square feet of floor area, but apparently was convinced that something in excess of 37,900 square feet was now supported by the facts of record. The Commission’s rejection on April 9, 1975, in no way reaffirmed its previous finding of need limited to 37,900 square feet. It can be understood simply as a finding that the evidence did not support a need for 65,000 square feet.
Had the Commission, as a part of its rejection of April 9, 1975,' reaffirmed its position that the evidence of record would support a need of only 37,900 square feet, we would be inclined to agree with the Appellants that a reversal of position some 60 days later, without further evidence of record, would constitute an impermissible change of mind. However, as we have sought to point out in some detail, we do not find this to be the case, and indeed it clearly appears that the additional evidence presented to the Commission after remand of PRU 4-G-73 convinced the members that a need had been demonstrated for construction of a gross floor area of at least 52,915 square feet, but not as great as 65.000 square feet. The action of the Commission thereafter, in denying PRU 4-G-73 which sought 65.000 square feet, but shortly thereafter granting PRU 4-H-75, which requested 52,915 square feet, is entirely consistent, and is not the result of an impermissible change of mind.
VI. Was the Commission’s approval of the application supported by substantial evidence and fairly debatable?
As we have previously indicated, the Mayor and Council made a decision in 1966 that 6 acres of the Planned Residential Unit were properly devoted to local commercial use, but charged the Planning Commission with the responsibility for limiting the total floor area of the actual commercial buildings constructed to the area for which a need could be established by market data reflecting need and economic feasibility. It is clear that the approval in this case is limited to uses which are permitted in the C-l, or local commercial zone. Further, from what we have said above, it is clear that the evidence of record which might have been accepted by the Commission is sufficient to support the finding of need for the area permitted, according to current and reliable market studies.
We turn to a consideration of whether the evidence of record is sufficient to support findings that the uses here permitted are not available within reasonable proximity of the subject area; are gauged primarily for the service and convenience of the residents of the subject area; and are designed as a unit of limited size. See §6-2.25Ab (1) (B) (b) of the former Zoning Ordinance of the City of Rockville. These requirements have been relocated in current Zoning Ordinance, in §5-418(f), and restated as follows:
‘That the C-l zone uses proposed in such development are not available within reasonable proximity of the development and are primarily for the service and convenience of the residents of such development.’
The provision with respect to limited size was no doubt omitted because of the adoption of a new section elsewhere in the Code, limiting such commercial development to 5 acres. While §5-418 of the present Code relates to findings which must be made by the Mayor and Council prior to the approval of an exploratory application, and while these requirements are therefore not directly applicable to this application, we nevertheless conclude that the inclusion of essentially similar statements in each of the ordinances makes it abundantly clear that this was an area for proper concern of the Planning Commission.
We are equally convinced from a review of the record that the Planning Commission did give consideration to these factors, and although its findings of fact might more properly have addressed these issues specifically, we are satisfied that the Commission made such findings and that the record contains facts which make such decisions at least fairly debatable. That these factors were very much of concern to the Planning Commission and its staff is apparent from a reading of a memorandum from the Director of Planning to the Commission concerning the original Application No. PRU 4-G-73 which proposed a 10.2 acre shopping center containing 103,600 square feet of gross floor area. We quote, in part:
‘(4.) Shopping Area — Giant Corporation states that ‘... the commercial development on the Rockshire PRU-4 project was, and is, intended to serve the shopping needs of a population segment greater than the population of Rockshire.. ..’ This statement, of course, constitutes another blatant violation of the intent of the planned residential unit development technique. Giant Corporation may be right in this assertion;- perhaps a ‘regional shopping’ center is feasible. You do not, however, propose or argue for this type of commercial shopping facility within the context of a planned residential unit development which calls for exclusive and limited commercial service for only residents of the PRU.’
As we have noted, the Commission rejected this application, and required additional market studies. It is significant that the market studies were limited to a restricted trade area in the immediate vicinity of this planned residential development and that the finding of need made by the Commission was restricted to this limited trade area.
It is unimportant, and indeed inevitable, that some persons outside the Planned Residential Unit will avail themselves of the local commercial facilities. This in no way alters the fact that the record clearly indicates the focus of the Commission was to determine the needs of the residents of the particular neighborhood, and to approve facilities which would principally serve those needs. Though a strong argument can, and has been made that the allocation of floor space ultimately approved for grocery and drug sales will permit the construction of a rather large store, we think the evidence of record supports the finding of the Commission that the floor space approved is consistent with the needs of this Planned Residential Unit, the requirements of law, and the specific charge of the Mayor and Council to the Planning Commission.
Accordingly, for the reasons above-stated, it is this 8th day of October, 1975, by the Circuit Court for Montgomery County, Maryland,
ORDERED, that the action of the City of Rockville Planning Commission dated June 10, 1975, approving Detailed Application No. PRU 4-H-75, be and the same is hereby AFFIRMED, and the within appeal is DISMISSED, with costs to be paid by Appellants.”

Because the appellants raise the same issues on appeal to this Court that they raised on appeal to the circuit court, there is little, if any, need to supplement the cogently reasoned opinion of the trial court. For emphasis, if not for clarity, we should point out that the maximum permissible commercial use is 6 acres, not 6.5 as designated by the Commission. This is because the original application approved by the Mayor and Council in 1966, i.e., the Exploratory Application, PRU 4-66, requested only 6 acres and the Commission’s authority was limited not only by the ordinance, but confined by

“the terms and conditions of approval of the exploratory application by the Mayor and Council.” Rockville Zoning Ordinance §5-423 (3).

The trial judge’s finding of fact, that the land area actually utilized by the development plan which was finally approved was 5.77 acres, is not “clearly erroneous” and we, therefore, accept it. Md. Rule 1086. The Commission was not authorized to exceed the limitations approved by the Mayor and Council, and as found by the court, the actual area designated did not do so.

This fully comports with the trial judge’s opinion under question II, that the Mayor and Council did not wrongfully delegate its authority to alter its decision to the City Planning Commission. But for the possible variation in interpretation of the 6 acres or 6.5 acres subject to commercial use which the chancellor explained, the record clearly reflects that there was no unlawful delegation of authority. See Prince George’s Co. v. M & B Constr. Co., 267 Md. 338, 358; see also Huff v. Bd. of Zoning Appeals, 214 Md. 48, 61; Montgomery County v. Merlands Club, 202 Md. 279, 287-288.

Relative to appellants’ sufficiency of the evidence issue, treated as number VI in the chancellor’s opinion, it will suffice to say that our review of the record indicates ample evidence to sustain the result reached by the board. The cases cited by appellants in support of their allegations of factual insufficiency are inapposite since they deal, for the most part, with whether there has been sufficient change in a neighborhood since the original zoning to justify a rezoning, and some discuss the test for sufficiency of the evidence to support a decision of zoning authorities to rezone land — “whether there was legally sufficient evidence to support the decision of the authority, i.e., was it fairly debatable.” Montgomery County v. Shiental, 249 Md. 194, 199. Even applying that test here, appellants could not prevail.

Issue number V, whether the Commission’s approval of 52,915 square feet was a mere “change of mind” from their denial of 65,000 square feet is obviously strained and fully explained by Judge McAuliffe. The reduction of 12,085 square feet represents a greater than eighteen per cent reduction in gross floor area. The Commission was obviously persuaded by that substantial difference. Cf. Montgomery County v. Pleasants, 266 Md. 462, 465.

Further comment upon the opinion of the court below is not warranted nor would it be enlightening. In matters of this complexity, it is both commendable and gratifying when the reasoning of a trial judge is so carefully and articulately provided. This is especially true when, as here, the issues and the memoranda presented to the circuit court on appeal are practically identical to the issues and briefs presented to this Court.

Judgments affirmed.

Costs to be paid by appellants.

      . This zoning ordinance was amended effective January 1,1975, but no change in substance as to the Commission’s review was made. See former § 6-2.25A d (2) (B) (b).

      . The language emphasized was not included by appellants in their brief when they set forth the transitional provision above quoted although the brief appears to have quoted it in full without identifying ellipsis.


author: Powers, J.,

text:
    JOSEPH WALTON INSLEY v. STATE OF MARYLAND
    [No. 1276,
    September Term, 1975.]

      Decided June 9, 1976.

    The cause was submitted on briefs to Morton, Powers and Mason, JJ.
    Submitted by Charles A. Norris for appellant.
    Submitted by Francis B. Burch, Attorney General, Deborah K. Handel, Assistant Attorney General, George R. Sparling, State’s Attorney for St. Mary’s County and John F. Slade, in, Assistant State’s Attorney for St. Mary’s County, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Joseph Walton Insley was convicted by a jury in St. Mary’s County of driving a vehicle while he was in an intoxicated condition. He complains in this appeal that the trial judge, Joseph A. Mattingly, erred in declining to instruct the jury that it may consider the lesser crime of driving while his ability to drive was impaired by the consumption of alcohol.

Appellant bases his contention upon the provisions of Code, Art. 66V2, § 11-902, read together with § 16-104. Section 11-902 at that time defined different offenses, making it unlawful for any person to drive or to attempt to drive or to be in actual physical control of any vehicle:

(a) While he is in an intoxicated condition.
(b) While his driving ability is impaired by the consumption of alcohol.
(c) While he is under the influence of any narcotic drug.

Section 16-104, in words which appear to be permissive, provides:

“It shall be sufficient to charge any person with a violation of § 11-901 (reckless and negligent driving) and § 11-902 (driving while intoxicated, impaired or under the influence of drugs) and the court is empowered to make a finding under any subsection of either § 11-901 or § 11-902.”

The charging document, a Maryland Uniform Complaint and Citation, issued by a Maryland State Trooper, charged that on Sunday, March 2, 1975, at 8:58 P.M., the defendant did unlawfully violate Article 66V2 § 11-902, Subsection (a), by operating a motor vehicle while under the influence of alcohol, at State Route 235, Hollywood, St. Mary’s County. See Maryland District Rules 702, 706. Cf. State v. Dodd, 17 Md. App. 693, 304 A. 2d 846 (1973).

In the District Court Insley filed a notice exercising his right to trial by jury. The papers were transmitted to the Circuit Court for St. Mary’s County. See Wilson v. State, 21 Md. App. 557, 321 A. 2d 549 (1974). At the beginning of the jury trial in the Circuit Court the Assistant State’s Attorney moved for and was granted leave to amend the charging document “by striking the words, ‘under the influence of alcohol,’ and inserting in lieu thereof, ‘in an intoxicated condition,’ so as to conform to the statutory language.”

The sufficiency of the evidence, which included the results of a breathalyzer test showing .26 blood alcohol, was not questioned. Appellant’s complaint is that he was not afforded what he deemed to be the tactical advantage of offering the jury the compromise alternative of finding him guilty of driving while his ability was impaired.

We hold that such a choice was not available to Insley. The State charged him with one offense, and only one offense. He was charged with driving a vehicle while he was in an intoxicated condition, specified as being the conduct proscribed by Art. 66V2, § 11-902 (a). The State’s choice to proceed on an “all or nothing” basis meant that the State forewent the right to drop down to a lesser charge, should its proof fail to result in a conviction of the greater charge. If this choice involved risk, the risk was on the State, not on the accused.

If an appeal to the jury’s intelligence could not result in an acquittal on the charge of driving while in an intoxicated condition, then submission of a lesser charge could serve no purpose but to permit an appeal to the jury’s sympathy. Such a purpose is not a valid reason for an instruction. The judge was correct in declining to give the requested instruction.

Judgment affirmed.

Appellant to pay costs.

      . Effective 1 July 1975 Subsection (c) was amended, and Subsection (d) was added. We are concerned here only with Subsections (a) and (b).

      . We note that if Insley had been charged with violating both Subsections (a) and (b) of § 11-902, he would have been entitled, under Code, Courts Art., § 4-302 (e), to a jury trial on both, Thompson v. State, 26 Md. App. 442, 338 A. 2d 441, cert. granted, 276 Md. 751 (1975). Had he been charged with violating only Subsection (b), he would not have been entitled to oust the jurisdiction of the District Court by praying a jury trial. _ _

      . The trial judge advised the jury of the provisions of Code, Courts Art., § 10-307 that if there was in the defendant’s blood at the time of testing 0.15 percent, or more, by weight, of alcohol, it shall be prima facie evidence that the defendant was in an intoxicated condition.


author: Morton, J.,

text:
    WENDELL A. HALL v. STATE OF MARYLAND
    [No. 543,
    September Term, 1975.]

      Decided June 10, 1976.

      The cause was argued before Morton, Melvin and Mason, JJ.

      Lawrence J. Gebhardt, Assigned Public Defender, with whom were Gebhardt & Smith on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Joseph S. Lyons, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant went to trial in the Criminal Court of Baltimore (Karwacki, J., presiding) on an indictment charging murder and armed robbery. The jury returned a not guilty verdict on the murder charge, but guilty on the armed robbery charge. In this appeal it is first contended that the trial judge committed reversible error in denying appellant’s motion for judgment of acquittal at the close of all the evidence.

The record indicates that as the victim and her eleven-year old son were leaving a shopping center in Baltimore City about 9:15 p.m. on October 18, 1974, the mother was attacked by two young men. In the course of the attack her purse was stolen and she was shot three times, resulting in her death. The son testified that the assailants were nineteen- or twenty-year old blacks, one of whom had his hair plaited in “cornrows.” He observed them run down Argonne Drive while he sought help. In a police line-up and at trial, the son was unable to identify the appellant as one of the assailants.

Another witness who lived next door to the appellant on Argonne Drive testified that during the evening of October 18, 1974, he was leaving his house and observed the appellant and an individual named Harris come down an alley. He stated that the appellant had a gun sticking out of one pocket and money out of another pocket. According to the witness, the appellant’s hair was braided in cornrows. He was not sure whether the time was 9:15 p.m. or whether it could have been 8 o’clock.

On Sunday, October 20, 1974, appellant took a bus to the home of his aunt and uncle in North Carolina where, according to the testimony, he was to enter school the next day. The aunt testified that on the day following his arrival appellant told her that he had witnessed an attack on a woman in Baltimore the previous Friday night. He told her that prior to the attack an acquaintance named Maurice had stopped by appellant’s home and when he went outside with Maurice, there were three other individuals. They then walked about two blocks where they encountered a woman and a little boy walking out of a shopping center. Maurice and one of the individuals grabbed the woman’s pocketbook and when she resisted, the other individual shot and killed her. The appellant told his aunt that he had watched the attack from across the street and did not participate in it. He was told by the individual who fired the shots that he would kill the appellant “if he told.” According to the aunt, appellant said that the gun had been thrown away in the area; that there was $4 and change in the pocketbook; and that each one got 50 cents, although appellant never stated specifically that he himself got 50 cents.

The appellant, his mother and one of his brothers testified that appellant was at home with his mother, three brothers and a sister during the entire evening of October 18, 1974. There was also testimony that the day following the shooting, the police questioned appellant with respect to the murder and robbery and he was then released. The next day appellant’s mother and step-father decided to send him to North Carolina to go to school. One week later the police advised appellant’s parents that they wanted to question him further and the parents then had appellant sent back home. The police intercepted the bus he was traveling on in Washington, D. C., where they arrested the appellant and returned him to Baltimore.

In the course of appellant’s testimony he admitted he had told his aunt in North Carolina that a woman in the neighborhood had been killed but denied giving his aunt the details she had testified to, telling the jury simply that he was not there and did not know who had done it.

In contending that it was error to deny his motion for judgment of acquittal, appellant asserts that the trial judge “erred by applying the wrong standard in determining the legal sufficiency of the evidence to sustain a conviction in that the trial court looked only to whether there was sufficient evidence from which the jury could infer guilt, rather than whether there was sufficient evidence from which the jury could find guilt beyond a reasonable doubt”

The record indicates that the trial judge, in response to appellant’s motion at the conclusion of the state’s case, announced:

“THE COURT: I appreciate the argument, gentlemen. You have covered the points very well, and I can say I feel there is sufficient evidence from which a jury can infer guilt of the crimes charged in both indictments, and I will therefore deny the motion for judgment of acquittal for the reasons I have expressed in the course of my colloquy with counsel.”

The motion was renewed at the close of all the evidence and summarily denied. While the state suggests that the issue is not preserved because the judge’s remarks were addressed to the first motion and not the second, we think the issue should be met.

In appraising “a contention that the evidence was insufficient in law so as to preclude it from being submitted to the jury, the test is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” Williams and McClelland v. State, 5 Md. App. 450, 459 (1968). See also Metz v. State, 9 Md. App. 15.

It is true, as appellant asserts, the trial judge did state in the course of his assessment of the evidence that “I feel there is sufficient evidence from which a jury could infer guilt of the crimes charged in both indictments * * We think, however, that his failure to recite the magic litany “guilt beyond a reasonable doubt” is not fatal. His failure to do so does not demonstrate, as appellant contends, that he employed the wrong standard in denying the motion for judgment of acquittal. The trial judge was an able, experienced judge and it is inconceivable that he was unaware that an accused’s guilt “must be established beyond a reasonable doubt.” State v. Hutchinson, 260 Md. 227 (1970). Any thought to the contrary is completely dispelled by looking at his instructions to the jury during which he advised the members:

“ * * * The burden of proof is upon the State to prove every element of the crime charged against the Defendant and he is presumed innocent until proven guilty beyond a reasonable doubt. * * * While the burden is on the State of establishing every fact material to the guilt of the Defendant, including every circumstance that enters into the crime charged beyond a reasonable doubt, that does not mean that the State must prove the Defendant guilty to an absolute or mathematical certainty.
“Guilt beyond a reasonable doubt may be based on direct evidence of the facts or it may be based on circumstantial evidence. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experiences. * * * For in either case, the jury must be convinced beyond a reasonable doubt of the guilt of the Defendant.”

In any event, the ultimate question is “whether-the State’s evidence was, in fact, legally sufficient to permit the case to go to the jury.” Robinson v. State, 20 Md. App. 450, 456 (1974). We think it was. There was the witness who, although equivocal on the exact time, saw the appellant on the evening of the crime with a gun sticking out of one pocket and money out of the other. There was the highly incriminating story the appellant related to his aunt upon his arrival in North Carolina. She testified that she could not have learned of the crime from the newspaper because “we don’t get that paper.” There was appellant’s own concession that he told the aunt of the murder. There was his departure for North Carolina shortly after the crime. There was the testimony of the victim’s young son that one of her assailants had a “cornrow” hair style, contradicted only by the testimony of the appellant that he had a “buckwheat” hair arrangement. “It has been consistently held that in order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there be no legally sufficient evidence or inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt. Agresti v. State, 2 Md. App. 278, 284 (1968). We cannot make that finding on the record before us.

It is next contended that the trial judge erred in permitting the state to inquire of appellant’s mother about the results of a lie detector test given her and her husband thereby allegedly forcing appellant’s trial counsel to object and leave the jury with the impression the results were unfavorable to appellant. The record indicates that the following colloquy took place during the state’s cross-examination of the appellant’s mother:

“BY MR. LYONS [Assistant State’s Attorney]:
Q. Mrs. Price, you cooperated with the police? A. I did.
Q. You did whatever you could for them? A. I did.
Q. And as part of your cooperation, you even agreed to take a polygraphic examination, didn’t you? A. Yes.
Q. Do you know what a polygraphic examination is? A. Yes, I do.
Q. And do you know the results of that examination? A. I know what they said.
MR. MITCHELL [Appellant’s Attorney]: Objection.
THE COURT: Sustained. Mrs. Price, you don’t have to answer the question.
BY MR. LYONS:
Q. Do you know also if your husband did take the polygraphic test? A. Yes, I do.
Q. Do you know the results of that? A. No. I don’t.
MR. MITCHELL: Objection.
MR. LEE [Appellant’s Attorney]: Objection.
THE COURT: Sustained.”

We think the issue cannot be properly raised for the first time in this appeal. The questions with respect to the taking of the polygraph tests were not objected to at the time they were propounded and when an objection was interposed to the questions concerning the results of the tests, appellant’s objections were sustained. Maryland Rule 1085. There was no request for a curative instruction or an admonition to the jury and, as it appears in the record, the trial judge accorded the appellant all that he asked.

It is next contended that the trial court “erred in permitting the State to inquire as to Appellant’s alleged past criminal activity of which Appellant had not been convicted at the time of trial.” The contention is based upon the state’s cross-examination of appellant’s step-father:

“Q. How was Wendall [appellant] doing in school?
A. He was doing good.
Q. He was doing well here?
A. Yes.
Q. Had Wendall been in any trouble here?
MR. MITCHELL: Objection.
MR. LEE: Objection.
THE COURT: Overruled.
BY MR. LYONS:
Q. Had Wendall been in any trouble here?
MR. MITCHELL: May we approach the bench?
THE COURT: You have made the point on your objection. No, you may not. I overrule your objection. You may answer the question.
BY MR. LYONS:
Q. Had Wendall been in any trouble here?
A. Yes.
Q. And what type trouble was that?
A. Him and another boy was picked up for collecting March of Dimes money.
Q. Were they also picked up for anything else? Was Wendall picked up for anything else?
MR. LEE: Objection, your Honor.
THE COURT: Overruled.
You may answer, sir.
A. Beg your pardon?
BY MR. LYONS:
Q. Was he also picked up for something else?
A. Yes.
Q. What else was that?
A. Some boys attacked a man and said that he was involved in some way.
Q. I see.
MR. LEE: We would object and move to strike, your Honor.
THE COURT: Denied.”

It is, of course, well settled that evidence of an accused’s prior arrest, indictment or criminal activity, not resulting in conviction, is ordinarily not admissible. Arbaugh v. Director, 27 Md. App. 662 (1975); McLaughlin v. State, 3 Md. App. 515, 524 (1967). In order, however properly to assess the contention appellant here makes, the questions propounded by the state on cross-examination and the answers elicited must be viewed in the context of the step-father’s testimony on direct examination. The step-father had been asked by appellant’s counsel why appellant was sent to North Carolina two days after the murder. The step-father stated that he and appellant’s mother had discussed on several prior occasions the desirability of sending appellant to North Carolina for schooling, although conceding he was presently doing well in school here. The step-father further stated that on the Sunday morning after the Friday night murder and the appellant’s questioning by the police on Saturday, he found a hunting knife on top of a cabinet in their home which appellant acknowledged to be his. According to the step-father, “I was upset by him having the knife and told him he was going to have to go to North Carolina * * *. I told him that he was going to pack his clothes. He was going on the next bus and the wife called the station to find out what time the next bus left and she put him on it.” The purpose of this testimony, obviously, was to establish the reason appellant went to North Carolina and to allay any suspicion that the trip was made because of the murder and questioning of the appellant by the police. It was in this context that the trial court ruled on the above set forth questions by the state on cross-examination.

In discussing the principles of excluding prior criminal conduct, it is stated in McCormick on Evidence, ch. 17, § 157:

“The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.”

We think a fair reading of the challenged questions and answers demonstrates that the questions were not propounded for the purpose of showing a probability that appellant participated in the murder and robbery. Rather, they were asked in further exploration of the reason the appellant went to North Carolina shortly after the murder. In fact, the appellant concedes that the questions and answers “furthers, rather than weakens, the appellant’s position” for they tended to show that “appellant’s parents were having a supervisory problem with him and that this was the reason he was sent to North Carolina * * *.” Moreover, the jury was advised, by way of stipulation, that the man the step-father said the appellant attacked had told the prosecutor that appellant was not the individual involved in the assault upon him. Under all the circumstances, we cannot find error in the trial'judge’s ruling on the challenged questions.

Finally, it is contended that the trial court “erred in permitting the State to use a statement of appellant given the police to cross-examine and impeach appellant when the State in response to appellant’s discovery motion misled the appellant into believing that the State did not have or would not use any such statement.”

The record indicates that in response to discovery procedures taken by appellant, pursuant to Maryland Rule 728, the state replied:

“The Defendant made no oral or written statement to any agent or office of the State, in response to any question asked of him, following his arrest, which the State intends to introduce into evidence.”

At trial, over appellant’s protest, the state was permitted, in cross-examining appellant, to use a statement he had given to the police, shortly after his arrest, for the purpose of impeaching his testimony that he had never owned a gun. In the statement to the police, appellant admitted having previously owned or possessed handguns. One of the police officers who interrogated appellant was also permitted to testify in rebuttal concerning appellant’s admission to owning or possessing guns. Appellant’s motions for a mistrial at the conclusion of the cross-examination and at the conclusion of the officer’s testimony in rebuttal were denied.

When the prosecutor first apprised the court and appellant’s counsel that he intended to use the statement given to the police by the appellant, counsel for appellant were permitted to read the statement which was in the form of handwritten notes taken by the officer during the interrogation. The prosecutor explained that he had permitted appellant’s counsel to inspect the state’s file but admitted “I did not show him everything * * Later on, the prosecutor stated to the court that “I was assuming in rebuttal or cross-examination that there would be a statement I could use.”

The appellant concedes that there are no sanctions for the state’s violation of Maryland Rule 728 (Powell v. State, 23 Md. App. 666 (1974)), but argues that “appellant’s constitutional rights to effective assistance of counsel and due process of law” were violated by the state’s “deceptive and misleading tactics * * *. ” While we certainly agree that the conduct of the prosecutor was anything but commendable, we cannot find, under all the circumstances, that there was such an invasion of appellant’s rights to effective assistance of counsel and due process as to compel a reversal of his conviction.

Judgment affirmed.