author: Gilbert, C. J.,

text:
    WILLIAM JORDAN CLAYBROOKS v. STATE OF MARYLAND
    [No. 1151,
    September Term, 1976.]

      Decided June 7, 1977.

      The cause was argued before Gilbert, C. J., and Morton and Liss, JJ.

      Reginald W. Bours, III, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Nelson W. Rupp, Jr., Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The Fifth Amendment to the Constitution of the United States provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . ...” Prior to Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969), it was generally taken to be true that the Fifth Amendment prohibition was limited to cases involving strictly federal jurisdiction. Palko v. Connecticut, 302 U. S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937); State v. Stanley, 34 Md. App. 393, 367 A. 2d 27 (1977). Benton, however, made manifest that the double jeopardy provision of the Fifth Amendment is applicable to the several States through the Fourteenth Amendment. State v. Stanley, supra.

We pointed out in Stanley that long before the Benton decision was handed down by the Supreme Court in its retreat from Palko, the established common law of Maryland prohibited the putting of an accused in jeopardy, twice, for the same offense. See Blondes v. State, 273 Md. 435, 330 A. 2d 169 (1975); Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974); Cornish v. State, 272 Md. 312, 322 A. 2d 880 (1974); State v. Barger, 242 Md. 616, 220 A. 2d 304 (1966); State v. Adams, 196 Md. 341, 76 A. 2d 575 (1950); State v. Shields, 49 Md. 301 (1878).

Neal v. State, 20 Md. App. 20, 314 A. 2d 710 (1974), endeavored to bring a halt to piecemeal appeals. We noted that in Jones v. State, 241 Md. 599, 217 A. 2d 367 (1966) and Harris v. State, 194 Md. 288, 71 A. 2d 36 (1950), the Court of Appeals entertained an immediate appeal from a refusal by the trial court to dismiss indictments for lack of a speedy trial. We had followed that lead in Stevenson v. State, 4 Md. App. 1, 241 A. 2d 174 (1968), and in Brown v. State, 2 Md. App. 388, 234 A. 2d 788 (1967), in holding, “that an immediate appeal would lie, prior to trial on the merits, from the denial of a motion asserting a violation of the constitutional right not to be twice put in jeopardy.” Neal v. State, supra, 20 Md. App. at 24, 314 A. 2d at 712.

This Court’s opinion in Neal observed that there had been 18 reported cases involving double jeopardy accounting from the inception of the Court, January 1967 to the date of filing of Neal, February 11, 1974. Of those 18 cases, in only two, Jones v. State, 17 Md. App. 504, 302 A. 2d 638 (1973), and State v. Campbell, 7 Md. App. 538, 256 A. 2d 537 (1969) was an accused actually twice put in jeopardy. We concluded that the allowing of an immediate appeal, prior to trial on the merits, of a denial of a motion to dismiss on grounds of double jeopardy or denial of a speedy trial, causes, “ ‘[Proceedings in every criminal case, great or small, ... [to be] stopped and delayed while the accused prosecutes an appeal.. . [adding] just so much to ... [the already onerous caseload of this Court].’ ” Neal v. State, supra, 20 Md. App. at 28-29, 314 A. 2d at 715; Lee v. State, 161 Md. 430, 157 A. 723 (1931). Then Chief Judge Orth, writing for the Court, set out the policy we elected to follow. He said:

“We are of the opinion ... that whether a speedy trial has been denied or whether an accused will be twice put in jeopardy, will usually turn on the facts and circumstances present in the particular case. This has been evident, certainly, in the cases which have come before us. Thus, the determination of the question by the lower court would seem to involve an application of judicial discretion .... We shall follow the rule of Pearlman [v. State, 226 Md. 67, 172 A. 2d 395 (1961)] and Lee except in those cases where the trial judge concludes that the constitutional right exists and is applicable but nevertheless refuses to apply it. To the extent that this is a departure from our cases heretofore decided, we depart from them.” 20 Md. App. at 29-30, 314 A. 2d at 715.

Our departure was shortlived. The Court of Appeals vacated our judgment in Neal and made clear that it did “not share the view that a determination that double jeopardy does or does not exist involves an exercise of discretion.” The Court, through Judge Singley, went on to state, “To us, the defense of double jeopardy is a liminal constitutional issue, raised at the outset, before there is a trial.” Neal v. State, supra, 272 Md. at 326, 322 A. 2d at 889.

Ten days after the decision of the Court of Appeals in Neal was handed down, we filed our opinion in Taylor v. State, 22 Md. App. 370, 323 A. 2d 648 (1974). Taylor dealt with the immediate appealability vel non of a denial of a motion to dismiss for lack of a speedy trial. In that case, we said:

“The express message of the Court of Appeals in Neal is unmistakable. A denial of a motion to dismiss an indictment on the ground of double jeopardy is appealable immediately.” 22 Md. App. at 372, 323 A. 2d at 650.

We observed in Taylor, with respect to a motion to dismiss for lack of a speedy trial, that if the court does not rule on the motion to dismiss, made prior to trial, but defers the ruling, pursuant to Md. Rule 725 d, until the trial on the merits, “no appeal lies from the trial court’s declination to rule prior to trial.” 22 Md. App. at 374, 323 A. 2d at 651. See also Brady v. State, 36 Md. App. 283 (1977).

Our observation in Taylor seems to have been misinterpreted by the trial judge in the instant case. We did not imply, suggest, nor hint that Md. Rule 725 d was to be used as an artifice to circumvent the holding of the Court of Appeals in Neal Indeed, Rule 725 d is not a vehicle to thwart Neal and thus effectively erode its clear mandate. By the mere deferring of a ruling on a motion to dismiss grounded on former jeopardy, the constitutional barrier, erected by our founding fathers, would be no barrier at all. Rather, it would be relegated to the status of a high sounding phrase, devoid of substance and “signifying nothing.”

The net result of what we have herein said is that the former jeopardy proviso of the Fifth Amendment is a bar to a second trial. Neal requires a ruling before trial when there is a motion to dismiss on the basis of former jeopardy. A denial of the motion is an interlocutory order which is immediately appealable. Failure to rule on the motion before trial is error.

We believe such error ordinarily to be reversible. We say “ordinarily” because there is an exception. The exception arises when the motion is based on a claim that is patently frivolous. When that occurs, although there is error, it is not reversible, but harmless. To hold otherwise would permit any defendant, in any criminal cause, to move to dismiss on the grounds of double jeopardy, even though there is no basis, and when the motion is decided against him, to divest the trial court of jurisdiction by simply noting an appeal. Such a practice could be used to obtain a continuance, a severance of the case from that of another, and probably would cause an appellate logjam. The constitutional protection against double jeopardy should not be allowed to become a contrived proforma dilatory plea.

The Fifth Amendment is to be used as a shield not a sword. The orderly administration of justice may not be twisted, bent, and distorted at the whim of an accused whose only purpose in invoking a frivolous plea of former jeopardy is to delay the trial so as to achieve some strategic or tactical advantage.

We now turn our attention to the instant case. The record reveals that in Montgomery County, on May 30, 1975, at approximately 7 p.m., on that Friday evening, a black man approximately 20 years of age, later identified as Ralph Raney Cunningham, entered the Suburbia Federal Savings and Loan.Association (Suburbia). Cunningham spoke with teller Deborah Sullivan about automobile loans. While they were talking, a second black man, the appellant, Claybrooks, entered and stood by the door. Claybrooks announced that a robbery was taking place and pulled out a gun. Cunningham then followed Sullivan to the cash drawers and placed approximately $1,800 in a yellow trash bag. Claybrooks then suggested that he and the other perpetrator attempt their escape.

In the meantime, Thurman Castellow, a barber, who went into Suburbia but retreated upon seeing that a robbery was in progress, ran into the Glenmont Inn, located across the mall from the scene of the robbery. There he exclaimed that Suburbia was being robbed. James Parker, who was sitting at the bar, saw Cunningham flee from the Suburbia building. Parker followed Cunningham to an open field whereupon Cunningham said he merely wished to get away. Parker responded that escape would be impossible. Cunningham and Parker began to fight. During the struggle, Claybrooks approached Parker and hit him across the back with a gun barrel. While the fight was ongoing between Cunningham and Parker, Cunningham dropped the bag containing the money that was taken in the robbery. The currency was blown around in the street until it was recovered by Michael Collins, who was also in the Glenmont Inn when Castellow entered.

Collins testified that he saw Cunningham flee from Suburbia with a trash bag, but he was unable to identify Claybrooks inasmuch as a white teller’s cap was worn by Claybrooks in such a way that his face was apparently not clearly visible. Collins recalled the fight between Cunningham and Parker and said that he heard Cunningham tell the other man, Claybrooks, to "waste” Parker.

While Collins was retrieving the scattered money, Claybrooks, still wearing the white cap, stopped a green Volkswagen owned by passenger Jacqueline Baucom but then being driven by her fiance, James Updike. Updike testified that he saw a gun as Claybrooks forced his way into the car. At that time, obviously having recovered from being struck across the back and knocked down, Parker ran to the Volkswagen, pulled Claybrooks away, and the two fought. Updike then noticed money all over the street.

Cunningham joined Claybrooks in the fight against Parker. Parker was again struck by the gun barrel, this time on the head. Cunningham and Claybrooks then attempted to make good their escape.

Collins observed and reported to the police that the two culprits were driving down Georgia Avenue in a yellow Volkswagen. The Volkswagen was owned by Eldridge Henderson. Henderson identified Claybrooks as the person who entered his car and ordered him either to turn over the keys or be “blown away.” Apparently of the view that discretion is the better part of valor, Henderson surrendered the keys. Cunningham then entered the car, and he and Claybrooks careened down Georgia Avenue on the wrong side of the street. Police officers from Montgomery County apprehended Cunningham and Claybrooks when the stolen yellow Volkswagen finally came to a halt after jumping a curb.

At 7:40 p.m., the police returned to Suburbia and conducted lineups at which Sullivan and Irvin H. Goebel, who also worked at Suburbia, identified Cunningham and said that Claybrooks resembled the second man involved in the robbery.

On August 7, 1975, the Grand Jury for Montgomery County handed up a twenty-eight count indictment against Claybrooks. A petit jury, presided over by Judge Joseph M. Mathias, found Claybrooks guilty of assault with intent to maim, two counts of robbery with a dangerous and deadly weapon, attempted armed robbery, the use of a handgun in the commission of a felony, and possession of a handgun. Judge Mathias sentenced Claybrooks to terms totalling twenty-eight (28) years. Of that total, however, fifteen (15) years were to be served concurrently with a twenty-three (23) year sentence imposed by the United States District Court for the District of Maryland (Harvey, J.), and the remaining thirteen (13) years were made to run consecutive to the federal sentence.

Claybrooks, in this Court, assails the judgments of the circuit court by leveling a legalistic cannonade against them. We shall discuss each of the pentad of issues posed to us in the order presented, adding such facts as may be necessary to a better understanding of the issue.

I.

“In Maryland, a trial court may not compel a defendant to stand trial by the mere artifice of ‘deferring’ its ruling on a pre-trial motion properly raising the issue of double jeopardy; appellant’s trial under such circumstances was an absolute nullity.”

Prior to trial, Claybrooks filed a motion to dismiss, assigning as reason therefore, that he had been tried and convicted in the federal court for, “the exact conduct which the State intends to prove in these proceedings.” Claybrooks asserted that it was “arbitrary and capricious to permit State authorities to prosecute . .. [him] for a second time when, by custom, practice, and policy, [] federal authorities would not prosecute ... [him if he were] convicted in State court before federal prosecution had been concluded.”

Over strenuous objection, Judge Mathias relying upon Md. Rule 725 d, deferred his ruling upon the motion until after the verdicts. The deferral was, as we have seen, error, but under the circumstances of the particular facts of this case, we do not believe that it is reversible nor was the trial a nullity. For the reasons we shall set out in part II, infra, the ultimate ruling by Judge Mathias was correct. We think it would be fatuous rigmarole, poverty stricken of common sense, to reverse the judgments and remand this case for a new trial solely because the trial judge made a procedural error which, as it develops, did not affect the final result. The better practice, however, is that trial judges not defer rulings on motions to dismiss because of alleged double jeopardy in order to avoid the impact of Neal. At the expense of repetition, the delay in the ruling constituted error, but in the case now before us that error is harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967).

II.

“Appellant’s prosecution . . . subjected him to double jeopardy and deprived him of due process of law in violation of the Fifth and Fourteenth. Amendments to the United States Constitution and the common law of Maryland.”

The Supreme Court in Moore v. Illinois, 55 U. S. (14 How.) 13, 14 L. Ed. 306 (1852) said:

“Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both.
That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.” 55 U. S. at 20, 14 L. Ed. at 309.

The late Mr. Justice Frankfurter, writing for the majority of the Court in Bartkus v. Illinois, 359 U. S. 121, 79 S. Ct. 676, 3 L.Ed.2d 684 (1959), quoted with approval from Moore v. Illinois, supra. At the same time, Justice Frankfurter pointed out that in a dozen cases between Moore (1852) and United States v. Lanza, 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314 (1922), the Court had reaffirmed the principle tljat successive State and federal prosecutions do not violate the Fifth Amendment. 359 U. S. at 132, 79 S. Ct. at 682-83, 3 L.Ed.2d at 692.

Maryland has, in a number of cases, followed the view of the Court in Moore. See e.g., State v. James, 203 Md. 113, 100 A. 2d 12 (1953); Worthington v. State, 58 Md. 403 (1882); Bloomer v. State, 48 Md. 521 (1878); Stathes v. State, 29 Md. App. 474, 349 A. 2d 254 (1975), cert. denied, 277 Md. 741 (1976); Bell v. State, 22 Md. App. 496, 323 A. 2d 677, cert. denied, 272 Md. 737 (1974), cert. denied, 421 U. S. 1003, 95 S. Ct. 2405, 44 L.Ed.2d 672 (1975); Melville v. State, 10 Md. App. 118, 268 A. 2d 497, cert. denied, 259 Md. 729, 30, 32, 33, 34 (1970).

In Bell, we considered and rejected the precise issue that Claybrooks raises in the case subjudice. Bell is dispositive of the matter.

Nevertheless, Claybrooks makes one final stab at urging us to hold that former jeopardy should have barred the trial in the circuit court. He asserts that the common law rule against double jeopardy operates as a bar to trial even if the Fifth Amendment does not. We have an entirely different view. The Fifth Amendment, as we see it, is but a constitutional proviso incorporating the common law rule that we followed prior to Benton v. Maryland, supra. Benton, through the Fourteenth Amendment, made the Fifth Amendment’s double jeopardy clause applicable to the States and brought about a substantial change in those States that had erected no barrier to double jeopardy. See e.g., Palko v. Connecticut, supra. Benton's effect on Maryland is minimal at best, and more illusory than real.

III.

“The uninterrupted and totally inexcusable delay of eleven months from appellant’s arrest until trial, combined with the State’s conduct in bringing the prosecution, deprived appellant of a speedy trial, and otherwise constitutes an egregious violation of his right to due process of law.”

Whether the delay between appellant’s arrest on May 30, 1975 and his trial commencement of April 20, 1976 (a time lapse of ten months and twenty days), requires the Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), balancing is dependent on the underlying question of whether the delay is of constitutional proportions.

Claybrooks was apprehended on the date of the offense, May 30, 1975. The same day, he was turned over to the federal authorities. At that time, the only State charges placed against Claybrooks were six traffic violations. The Federal Grand Jury for the District of Maryland indicted Claybrooks on June 3, 1975, and he was arraigned the next day. The Montgomery County indictment followed on August 7, 1975, two (2) months and four (4) days later. Although there is testimony that a bench warrant, issued on the strength of the indictment, was sent to the United States Marshal, no acknowledgment was ever received from the Marshal. Claybrooks denied knowledge of the indictment until he received a copy from his federal public defender in October 1975. It was “agreed” that Claybrooks “would testify that he was not aware of any detainers filed against him until his arraignment in the Circuit Court for Montgomery County on November 7, 1975.” Claybrooks did, however, hel$ Cunningham to write a letter to the latter’s attorney requesting a speedy trial. The letter was written subsequent to Claybrooks’s arraignment in the circuit court.

During the ten month and twenty day period, Claybrooks was in the custody of the federal authorities for a period of two (2) months and eight (8) days prior to the State indictment, and three months after that indictment but prior to arraignment, a total of five (5) months and eight (8) days. When we subtract the federal custody period from the total delay, we are left with a maximum of five (5) months and twelve (12) days. In our view, that period does not reach constitutional dimension so as to require the balancing mandated by Barker, supra.

We think that even if the total delay of ten months and twenty days were properly chargeable to the State, under the peculiar circumstances surrounding the exercise of separate sovereign powers, by the federal government and the State, the delay does not cross the threshold of constitutional breadth.

We perceive no error in the trial judge’s denial of Claybrooks’s motion to dismiss for lack of a speedy trial.

IV.

“Appellant was improperly charged and convicted under the twentieth count of the indictment.”

The twentieth count of the indictment averred in pertinent part that appellant,

“On or about May 30, 1975,... unlawfully did use a handgun, in the commission of a felony, in violation of Article 27, Section 36B of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.”

To understand the impact of Claybrooks’s contention, an analysis, preliminarily, of the multi-count indictment is necessary.

Claybrooks was, as we have noted, indicted in a twenty-eight count charging document. We are concerned here with the first twenty counts. Counts 1 through 4 asseverated that Claybrooks had 1) assaulted with intent to murder James Bruce Parker (a felony, Md. Ann. Code art. 27, § 12); 2) assaulted with intent to maim Parker (a felony, Md. Ann. Code art. 27, § 386); 3) committed an assault and battery upon Parker (a common law misdemeanor); and 4) committed an assault on Parker (a common law misdemeanor). Count 5 asserted that Claybrooks had used a handgun in the commission of a felony and therefore had violated Md. Ann. Code art. 27, § 36B.

The sixth through eighth counts alleged, 6) the attempted felonious robbery, with the use of a dangerous and deadly weapon, of a 1968 Volk.swagen Sedan from Jacqueline Jeanne Baucom (a felony, Md. Ann. Code art. 27, §§ 486-488); 7) an assault with intent to rob Ms. Baucom of her vehicle (a felony, Md. Ann. Code art. 27, § 12); and 8) an assault upon Ms. Baucom (a common law misdemeanor). Count 9 laid another handgun in the commission of a felony charge. The tenth through twelfth counts repeated the allegations of counts 6, 7, and 8 but stated that they were applicable to offenses committed against James Patrick Updike. The thirteenth count, again, charged a violation of the use of a handgun in the commission of á felony (Md. Ann. Code art. 27, § 36B). Counts 14 through 19 referred to offenses committed against Eldridge Monte Henderson. Count 14 stated that Claybrooks had robbed, "with a dangerous and deadly weapon,” Henderson of a 1971 Volkswagen (a felony, Md. Ann. Code art. 27, §§ 486-488); count 15, the robbery of Henderson (a felony, Md. Ann. Code art. 27, § 486); count 16, assault with intent to rob Henderson (a felony, Md. Ann. Code art. 27, § 12); count 17, assault upon Henderson (a common law misdemeanor); count 18, larceny of Henderson’s 1971 Volkswagen “in violation of Article 27, Section .148’’ (a felony); count 19, the unauthorised use of Henderson’s motor vehicle (a misdemeanor, Md. Ann. Code art. 27, § 849).

The 20th count repeated the handgun violation.

Claybrooks, as he is permitted to do by Md. Rule 715 a, filed a demand for a bill of particulars of counts 5, 9,18, and 20. He requested that the State “specify in each instance the underlying felony during the commission of which the Defendant is alleged to have used a handgun as charged.” The State opposed the particulars and Judge Frosh, who heard the motion and opposition thereto, agreed with the State.

We thihk it clear from a reading of the indictment that the fifth count referred to the felonies preceding it. The ninth' count referred to the felonies charged in counts 6 and 7. The thirteenth count was concerned with the felonies in counts 10 and 11. The twentieth count was, at the time of hearing the motion, directed toward counts 14 and 15. Apparently because it foresaw some difficulty, immediately prior to trial, the State nol prossed the fifth, ninth, and thirteenth counts. The result was that the twentieth count then became the only viable handgun count, and it embraced the commission of all felonies charged in the indictment and proven at trial. Md. Rule 712.

Inasmuch as all the charges grew out of the incident of May 30, 1975, the appellant was fully apprised that he was charged with using a handgun during the commission of those offenses which were felonies.

Rule 712 a provides, “An allegation made in one count may be incorporated by reference in another count.” See Turner v. State, 242 Md. 408, 219 A. 2d 39 (1966). Count 20, being sufficient on its face, no bill of particulars was necessary to clarify it. Veney v. State, 251 Md. 159, 246 A. 2d 608 (1968); Avery v. State, 15 Md. App. 520, 292 A. 2d 728, cert. denied, 266 Md. 733 (1972) appeal dismissed, 410 U. S. 977, 93 S. Ct. 1499, 36 L.Ed.2d 173 (1973). At the end of the evidénce, the trial judge properly instructed the jury relative to the handgun violation when he advised it:

“Count twenty charges a violation of that part of the handgun statute known as Section 36Bd, and that says, in effect, that the crime of using a handgun in the commission of a felony consists of using a handgun in the commission of any felony or any such crime of other violence.... [A]rmed robbery is a felony....” (Emphasis supplied.)

V.

“Insufficient evidence, combined with error in the trial court’s instructions require reversal of the judgments below.”

Claybrooks’s final argument is tetrahedral. Three of its faces, respectively, are concerned with the sufficiency of the evidence on the second count — assault with intent to maim James Bruce Parker, the sixth count — “attempted armed robbery” of Jacqueline Jeanne Baucom, and the fourteenth count — “armed robbery” of Eldridge Monte Henderson. The fourth face of the contention relates to jury instructions and is, itself, subdivided into three areas of complaint.

l.

The second count, in pertinent part, charged that, “___ William Jordan Claybrooks ... on or about May 30., 1975 ... unlawfully did make an assault upon ... Parker, with intent to maim, disfigure and disable him....”

The judge instructed the jury, with respect to the count, that:

“The statute describing this offense says in pertinent part: If any person shall unlawfully shoot at another person or shall in any manner unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or assault or beat any person, with intent to maim, disfigure, or disable such person, he shall be guilty.of this offense.
You can see, therefore, that intent is what distinguishes this crime from the offense charged in the first count of assault with intent to murder.”

The language used by the trial judge is lifted largely from Md. Ann. Code art. 27, § 386. That section provides in essence that if a person, in an effort to avoid apprehension, “shall assault or beat any [other] person, with intent to maim, disfigure or disable such [other] person, or with intent to prevent the lawful apprehension or detainer [of the accused]” such accused shall be guilty of a felony.

We think it clear that the indictment failed to allege a pertinent part of the crime, namely, that element of assault while intending to escape or elude capture.

The evidence showed that Parker, upon learning that the Savings and Loan was being robbed, observed Cunningham leave the building, and he followed him. Parker attempted to capture Cunningham and a struggle ensued. After Cunningham yelled to Claybrooks to “burn him,” Claybrooks pointed what was described as a sawed-off 410 gauge shotgun at Parker’s head. No shot was fired, however, but Parker was struck across the upper back and knocked to the ground. The two felons then attempted to take the Baucom vehicle. Parker caught up with them and endeavored to pull them from the car. He was struck over the head by the gun barrel, and he sustained a slight wound.

The court’s instruction, when viewed in the light of the facts, is incomplete. The pertinent intent, in this case, is not the intent “to maim, disfigure, or disable such person.” Rather, the requisite intent is “to prevent the lawTul apprehension or detainer of any party for any offense for which the said party may be legally apprehended or detained....”

The indictment as drawn excluded from its purview the pertinent element, found in the evidence, of assault with intent to avoid arrest. The State’s wording of the indictment narrowed the charge to one of assault with intent to maim, disfigure or disable. There was no evidence of any, of those three acts being committed by Claybrooks, although there was, we think, ample evidence to entitle the jury to find that there was an assault with intent to prevent legal apprehension. The indictment, however, as we have stated, did not aver that offense, and an accused may not be found guilty of an offense not charged. Had the charge been properly laid, we would have no hesitancy in affirming the conviction. Inasmuch as the offense charged was not proven, and the proven offense was not charged, we shall reverse that conviction.

The sixth count averred the attempted robbery of Ms. Baucom with a dangerous and deadly weapon. The evidence showed that Claybrooks was holding a gun under his shirt when he forced his way into the automobile where Ms. Baucom was, and that Ms. Baucom and her fiance were so intimidated that they tried to escape because of the gun. The record -reflects that although Mr. Updike, Ms. Baucom’s fiance, had testified that Claybrooks, in approaching the car, said, “Help me, help me,” Ms. Baucom gave an entirely different version. She told the jury that Claybrooks “came up [to the eár], opened the door, put one leg into the car, leaned into the car, and said, ‘Get over, get over.’ ” Mr. Updike, according to the witness, shoved Claybrooks back and responded, “What the hell is going on, what are you doing?” Claybrooks continued to shove and said, “Get over.” Ms. Baucom saw a “brown paper bag with money coming out of the top and the barrel of a gun.” She explained that four or five inches of the gun barrel were exposed, and she said, “He’s got a gun, let’s get out of here.”

At that point, Parker arrived and pulled Claybrooks from the car. While the fight was going on, Mr. Updike accelerated the car, and they went about “30 or 40 yards and stopped.”

It has been held in Bell v. State, 5 Md. App. 276, 279, 246 A. 2d 286, 288 (1968), that “[i]ntimidation produced by the use of a weapon, coupled with the apparent ability to execute the implied threat to use it if resistance is offered, are sufficient to establish that a robbery committed was with a dangerous and deadly weapon.” See also Crum v. State, 1 Md. App. 132, 227 A. 2d 766 (1967).

In the instant case, the visibility of the gun when viewed in the light of the aggressive act of entry into the vehicle, along with the command, “get over,” we believe sufficient to constitute the offense of attempted robbery with a dangerous and deadly weapon.

iii.

Claybrooks next asserts that his conviction under the fourteenth count, the robbery by the use of a dangerous and deadly weapon of Fddridge Monte Henderson, was based on insufficient evidence. Henderson testified that he was in his Volkswagen, leaving the parking lot situated near the Suburbia building, when Claybrooks came up to the car and said, “Whiteyis after me.” Claybrooks forced his way into the Henderson vehieie. While attempting to eject Claybrooks from the car, Henderson brushed against something on the upper part of Claybrooks’s body which felt like “a pipe or something,... I don’t know what it was; a round object.” He then, in response to a question, said, “I guess it was a gun.” That testimony was followed by the victim’s stating that Claybrooks said, “Give me the keys or I will blow you away.” Henderson surrendered the keys and left the car.

Contrary to Claybrooks’s point of view, we believe £hat evidence sufficient to show the robbery of Henderson; by Claybrooks, of the vehicle. Patently, Henderson was intimidated by what he believed to be a gun, particularly in the light of Claybrooks’s comment about “blowing ... [him] away.” Bell v. State, supra.

IV.

(a)

Claybrooks finds error in the trial judge’s instructing the jury “the number of witnesses who may testify is not to be the determinative factor to be considered by you; the test is how persuasive their testimony is. Thus, the positive identification of a single eye witness is ample evidence to sustain a conviction if you believe that witness.” Our review of the trial judge’s instructions to the jury indicates that he correctly stated the law. We perceive no error.

(b)

Claybrooks also argues that the court failed to grant his requested instruction #2. Inasmuch as that instruction is not within the record, we are unable to pass upon its validity.

(c)

We agree that there may be some merit in Claybrooks’s allegation that there should have been an instruction pertaining to an accessory after the fact, but any error on the part of'the trial judge, if error at all, must be viewed in the wake of the substantial testimony that Claybrooks did more than “receive, comfort or assist a felon [Cunningham] knowing that he has committed a felony.” Agresti v. State, 2 Md. App. 278, 280, 234 A. 2d 284, 285-86 (1967). Indeed, the evidence was overwhelming that Claybrooks was a principal in the commission of the crime, so that even though the instructions did not embrace the law as to accessory after the fact, the lack of that instruction is harmless beyond a reasonable doubt. Dorsey v. State, 278 Md. 221, 362 A. 2d 642 (1976). We repeat what we said in Beckner v. Chalkley, 19 Md. App. 239, 248, 310 A. 2d 569, 574 (1973), quoting from Cherry v. Davis, 59 Ga. 454, 456 (1877), “ ‘[w]rong directions which do not put the traveler out of his way, furnish no reason for repeating the journey.’ " We are convinced that in the instant case, even if we consider Judge Mathias’s “instructions” to the jury to have been wrong “insofar as they did not advise on the law of accessory after the fact,” because of the overwhelming evidence as to Claybrooks’s being a principal, we think there is no valid reason “for repeating the journey.”

Judgment on count two (2) reversed.

Judgments on counts 6, 14, 20, 21, and 22 affirmed.

Costs to be paid one-sixth by Montgomery County and five-sixths by appellant.

      . Effective July 1, 1977, Md. Rule 725 d ceases to be a viable rule. As of that date, a new rule, No. 786 is operable, Md. Rule 736 will provide:
      RULE 736. MOTIONS BEFORE TRIAL,
      a. Mandatory Motions,

      A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
      1. A defect in the institution of the prosecution;
      2. A defect in the charging document, other than its failure to show jurisdiction in the court or to charge an offense which defenses can be noticed by the court at any time;
      3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;
      4. An unlawfully obtained admission, statement or confession;
      5. A motion for joint or separate trial of defendants or offenses.
      b. Time for Filing Mandatory Motions.

      A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.
      c. Other Motions.

      • Any other defense, objection or request capable of determination before trial without trial of the general issue shall be raised by motion filed at any time before trial.
      d. Content &fMotions.

      A motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, shall state the gounds upon which it is made, and shall set forth the relief sought. A motion alleging an illegal source of information as the basis for probable cause must be supported by precise and specific factual averments.
      e. Determination.

      A motion filed pursuant to this Rule, except a motion to dismiss for failure to obtain a speedy trial, shall be determined before trial unless the court otherwise directs in motions involving subsection a 4 of this Rule. If factual issues are involved in determining the motion, the court shall state its findings on the record.
      f. Effect of Determination of Certain Motions.

      1. Defect in Prosecution or Charging Document.
      If the court grants a motion based on a defect in the institution of the prosecution or in the charging document, it may order that the defendant be held in custody or that the conditions of pretrial release continue for a specified time pending the filing of a new charging document.
      2. Suppression of Evidence.
      If the court grants a motion to suppress evidence, the evidence shall be excluded and shall not be offered by the State at trial, except that suppressed evidence may be used in accordance with law for impeachment purposes. If the court denies a motion to suppress evidence, the ruling is binding at the trial unless the court in the exercise of its discretion grants a hearing de novo on a renewal of the motion. A pretrial ruling denying the motion to suppress is reviewable on a motion for a new trial or on appeal of a conviction.
      New Rule 736 seems to us to remove any lingering doubt but that with the exception of motions to dismiss for lack of a speedy trial, or pre-indictment delay, or in some situations involving admissions, statements or confessions, the trial judge must rule upon all pretrial mandatory motions before the commencement of trial on the merits.

      . William Shakespeare, 1564-1616, Macbeth, Act V, scene v. line 17.

      . See n. 1, supra.

      . Cunningham is not a party to this appeal because he was slain while serving a sentence in the federal penitentiary at Marion, Illinois.

      . Along with the motion to dismiss, Claybrooks’s attorney filed a copy of a Department of Justice news release dated April 6, 1959. In that writing, then Attorney General of the United States, William 0. Rogers, quoted from a “Memorandum to the United States Attorneys.” The memorandum read:
      “In two decisions on March 30, 1959, the Supreme Court of the United States reaffirmed the existence of a power to prosecute a defendant under both federal and state law for the same act or acts. That power, which the Court held is inherent in our federal system, has been used sparingly by the Department of Justice in the past. The purpose of this memorandum is to insure that in the future we continue that policy. After a state prosecution there should be no federal trial for the same act or acts unless the reasons are compelling.”
      Apparently that policy was followed in the case of Arthur Herman Bremer, who was charged with assault with intent to murder Governor George C. Wallace of Alabama. After Maryland had tried and convicted Bremer for that and related offenses, the federal authorities proceeded no further with a prosecution against Bremer. Bremer v. State, 18 Md. App. 291, 307 A. 2d 503 (1973).

      . See n. 1 supra.

      . The Attorney General, in his brief, also relies upon Rossberg v. State, 111 Md. 394, 74 A. 581 (1909). In that case, the Court held “that municipal authorities may be given concurrent power with the State to punish certain classes of offenses, and that which first obtains jurisdiction of the person of the accused may punish to the extent of its power, and, further, that the ordinance is not made invalid by the mere fact that the State law and the ordinance provide in terms for distinct prosecutions for the same act." 111 Md. at 415-16, 74 A. at 584. The Court did not decide the question of whether a conviction or acquittal of the State charge “ ‘could properly be pleaded to an indictment for the violation, by the same act, of a municipal ordinance.”’ 111 Md. at 416, 74 A. at 584, The question was left open. Waller v. Florida, 897 U, S. 387, 90 S. Ct. 1184, 25 L.Ed.2d 435 (1970), however, clearly indicates that a State and its municipalities are not separate sovereign entities. Each may not impose punishment of a violation of its separate laws by one act.
      Claybrooks reads Waller as eroding liurtkw and its ancestors. We do not. The relationship that exists between the State and its municipalities on the one hand and tlie federal government and the States on the other is vastly different. Municipalities derive their authority and such sovereignty as they may have from the State. They are creatures of the State and if the State confers no authority upon them, they have none. The federal government is limited to the power vested in it by the States through the ratification of the Constitution. By the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Thus, the federal government also derives its power from the States. It has no more authority than the States have given it, but once that authority is given, and exercised, it becomes the supreme law of the land, and the States are not at libertv to ignore, undercut, or erode it.

      . The indictment charged that Claybrooks, et al, (11 “did unlawfully by intimidation take" from a Suburbia Federal Savings and Loan Association “money in the amount of $1858.56 on May 30, 1975”; (21 “did take and carry away, with intent to steal” from Suburbia, “money in the amount of $1858.56”; (3) “did assault and put in jeopardy the lives” of employees of Suburbia “by pointing a fire arm in their direction.”

      . See n. 4, supra.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    DAVID VINCENT NOCERA v. STATE OF MARYLAND
    [No. 1248,
    September Term, 1976.]

      Decided June 7, 1977.

    The cause was argued before Thompson, Powers and Lowe, JJ.

      Owen M. Taylor and John M. Binetti for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Gary Neal, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Appellant David Vincent Nocera was tried in the Circuit Court for Prince George’s County for assault with intent to murder and assault and battery. The charges arose from a fracas between a number of revelers and the police officers who attempted to mute the din of their music. Appellant was acquitted by the court, sitting without a jury, of the first crime, but convicted of the second. He raises five contentions upon appeal, but because our review of the record convinces us that appellant was denied the right to a speedy trial, we shall only address that'issue.

The relevant progress of events was as follows:

7/20/75 - Appellant arrested.

8/22/75 - Petition for immediate trial and waiver of rights to grand jury indictment.

11/5/75 - Indictment filed despite waiver two months earlier.

11/20/75 - Appellant failed to answer when called for arraignment; bench warrant issued.

11/26/75 - Counsel for appellant entered appearance; plea of “not guilty” filed.

12/5/75 - Appellant released on $10,000 property bond.

12/10/75 - Trial scheduled for 2/3/76.

2/3/76 - Trial continued upon State’s request due to illness of the assaulted officer; trial scheduled for 4/1/76.

3/19/76 - Appellant’s motion to continue trial due to prospective absence of defense witness filed.

3/24/76 - Motion for continuance granted; trial scheduled for 6/1/76.

5/24/76 - Appellant’s motion to consolidate this and related cases filed.

6/1/76 - Motion to consolidate denied; trial continued upon State’s request due to the fact a prosecuting attorney had not been assigned to the case; trial scheduled for 6/18/76; “no further continuances” noted on docket sheet.

6/8/76 - Appellant’s motion to consolidate filed.

6/15/76 - Motion to consolidate denied; trial continued upon State’s request due to prosecuting attorney’s trial of another ease; trial scheduled for 7/28/76.

7/28/76 - Trial continued at State’s request due to illness of the assaulted officer; trial scheduled for 9/20/76; “no further continuances to be granted due to the illness of Officer Henegan” noted on docket sheet.

7/80/76 - Appellant’s motion to reconsider motion to consolidate filed.

8/18/76 - Motion denied.

9/20/76 - Oral motion to dismiss for lack of speedy trial made and denied; trial commenced.

9/22/76 - Verdict rendered.

The interval we must consider in deciding whether appellant was denied a speedy trial begins on date of arrest, United States v. Marion, 404 U. S. 307, 320, and ends on the day trial commenced. Epps v. State, 276 Md. 96, 109, but see State v. Wilson, 35 Md. App. 111, 116, where time stopped running at the date of the hearing on the motion to dismiss. The delay here of 14 months is great enough to require us to scrutinize the facts incident to the continuum in light of the standards set forth in Barker v. Wingo, 407 U. S. 514. See Dorsey v. State, 34 Md. App. 525.

Assertion of the Right

The least significant factor here is “assertion of the right”, although the right, when it is properly asserted, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right to speedy trial. Barker, supra, 407 U. S. at 531; Jones v. State, 279 Md. 1. In August 1975 appellant petitioned the district court for an immediate trial pursuant to Md. Rule 709 a. Although this rule was not designed as an alternative way to assert one’s constitutional right to a speedy trial, State v. Murdock, 235 Md. 116, 119, appellant’s petition for “an immediate trial date in order to insure the presence of all witnesses at trial and the accuracy of their testimony” waiving any grand jury rights, can reasonably be construed as putting the State on notice that appellant desired a prompt resolution of the charges against him. “Invocation of the speedy trial provision thus need not await indictment, information or other charge.” United States v. Marion, supra, 404 U. S. at 321. Contrary to what the State suggests (but does not state) in its brief, a formal motion for a speedy trial is not a prerequisite to the invocation of the right. See Smith v. State, 276 Md. 521, 532; Epps v. State, supra, 276 Md. at 117-118.

Although no written motion for a speedy trial was ever filed, appellant argues that he repeatedly requested a speedy trial and moved orally for such at the February 3, June 1, June 15 and July 28 hearings. We find no notations of such motions on the docket or elsewhere in the record, and the State does not concede that such motions were made. Accordingly, we reject appellant’s allegations.

But unlike the record in Barker v. Wingo, supra, the record here does show opposition to the State’s motions to continue which can be construed, if not as a formal assertion of his right, at least as indicative of an intent not to abandon it. See Barker v. Wingo, supra, 407 U. S. at 534. The significance of the relationship between appellant’s opposition to the State's motions for a continuance and appellant’s own motions to consolidate cannot, on this record, be fully analyzed. While appellant argues that he had solid legal basis for his motions and that, when they were denied, he was prepared to go to trial immediately, the State argues that appellant was not in fact prepared for trial, and that the motions for consolidation belie any request for an immediate trial. Here, too, only appellant’s assertion upon appeal and our speculation, not evidence in the record, can be used to resolve the conflict, and we accordingly decline to so speculate. This evidentiary void points up the need for counsel to develop fully and on the record all the reasons assigned during the hearing on the motion to dismiss for lack of a speedy trial. Cf. Brady v. State, 36 Md. App. 283 (1977).

The only motion with regard to a speedy trial confirmed by the record and made in the circuit court was the one advanced on the day of trial to dismiss the indictment for lack of a speedy trial. This, of course, was not a motion to be tried, but a motion not to be tried, State v. Murdock, supra, 235 Md. at 121, and, therefore, does not tend to support appellant’s argument that he effectively demanded a speedy trial. See Evans v. State, 30 Md. App. 423, 430-431; Todd and Merryman v. State, 26 Md. App. 583.

While we conclude that there is some evidence of record which tends to support appellant’s contention that he demanded a speedy, trial, the evidence is not such as to compel giving this factor “strong evidentiary weight”. Barker, supra, 407 U. S. at 531. On the other hand, the appellant had no duty to bring himself to trial — that burden was upon the State. Barker, supra, 407 U. S. at 529, Epps v. State, supra, 276 Md. at 105. Accordingly the evidence is sufficient to overcome the effect of the rule that a failure to assert the right will make it difficult to prove denial of a speedy trial. Barker, supra, 407 U. S. at 532. On the facts here, we consider “assertion of the right” a neutral factor.

Prejudice

The next factor to evaluate is prejudice. As explicated by State v. Wilson, supra, 35 Md. App. at 127-136, there may be prejudice to the person by way of pretrial incarceration; anxiety, financial strain and loss of employment; and there may be prejudice to the defense through loss of witnesses or fading memory. Incarceration is apparently not a factor in this case, but anxiety and other prejudices to the person are presumed “at the very instant when review itself is necessitated.” State v. Wilson, supra, 35 Md. App. at 123. The fact that appellant was required to post a $10,000 property bond might add a grain of actual prejudice, but inasmuch as appellant neither here nor below argued that any particular hardship attended this burden, we conclude that only presumed personal prejudice was shown.

Appellant attempted to convince the trial judge on the day of trial that the 14-month delay had prejudiced the defense because witnesses who-otherwise might have testified in his behalf were not in court. However, these allegations were very general, and there was no suggestion that a crucial defense witness had become unavailable. More significantly, in response to the court’s inquiry, appellant indicated that the allegedly missing witnesses had not been subpoenaed, and that the only effort to secure their presence had been telephone calls. Although asserted, no prejudice to the defense was shown.

Reasons for Length of Delay

The final factor is the length of the delay in light of the reasons given to explain it. In this case, on these facts, it proves to be determinative.

Paraphrasing what has been said so often before, different reasons for delay should be assigned different weights, and the length of delay tolerated will depend upon the facts and the nature of the case. Barker, supra, 407 U. S. at 530-531; Jones v. State, supra, 279 Md. at 6-7. A certain period (dependent upon the facts and nature of the case) is necessary for the orderly administration of justice, and this lapse is a neutral period to be weighed against neither the State nor the defendant. E.g., Lee v. State, 32 Md. App. 671; see Epps v. State, supra. If a delay is occasioned by the defendant, that portion is weighed against him. E.g., Isaacs v. State, 31 Md. App. 604; Pennington v. State, 19 Md. App. 253. A delay caused by the forgivable absence of a witness is a neutral reason. Smith v. State, supra, 276 Md. at 529; Williams and Burchett v. State, 17 Md. App. 110. A deliberate delay by the State will be weighed against it heavily. State v. Lawless, 13 Md. App. 220. Delays due to overcrowded dockets or the State’s benign neglect will be weighed against the State, and given greater weight as the delay lengthens. Jones v. State, supra; Epps v. State, supra. The keynote, however, as recently illustrated in Jones v. State, supra, is that each case depends upon its facts.

The period of delay from arrest on July 20, 1975 until the date of trial (initially scheduled to begin on February 3, 1976), is more than one might expect to be readily forgivable for the preparation of this factually uncomplicated, though contested, case. At most, one week of this 6V2 month period is chargeable to appellant’s failure to appear for arraignment. While under the circumstances of this case we are inclined to feel that 25 weeks is more than is necessary for the preparation by the State in the orderly administration of justice, we are loath to limit the State too stringently (unless the length of the preparatory period were critical) in view of the extreme sanction required for the violation of the right to a speedy trial. However, we can classify this entire period as essentially neutral, because our ultimate result does not turn on the requirements of time needed for preparation, but the same result may not follow in a different case.

Leaving that period in a state of imbalance, we turn to examine the ensuing five continuances. We believe the February 3 continuance due to Officer Henegar’s illness justified and thus neutral, and give little weight to appellant’s proffer at trial that the officer had not been too ill to appear in court on February 4. The second continuance for the officer’s health, on July 28, we find justified as well, although, like the trial judge as reflected in the docket entry, we do so somewhat grudgingly in view of the numerous prior delays. The continuance granted appellant on March 24 due to the prospective absence of a defense witness would ordinarily be charged to him, and would be done so here if the trial had begun as rescheduled on June 1; but, on June 1 the trial was again postponed, this time because a prosecuting attorney had not yet been assigned to the case. The State's unabashed admission that this was indeed the reason for the continuance renders insignificant all the justifiable delays which had alrea'dy occurred, for it is clear that the trial could not have begun prior to June 1 even if Officer Henegar had been well on February 3. If an attorney had originally been assigned to prosecute the case, but was then relieved of the assignment when it appeared on February 3 that the trial would have to be postponed, the State had the burden of proving as much to the trial judge. Moreover, inasmuch as we are required to make an independent constitutional survey of the record, and are not permitted therefore to assume that the trial judge acted properly in granting the continuance on June 1, the State is obliged to ensure that its proof will appear in the record. Cf. Jones v. State, 280 Md. 282 (1977); Gladding v. Langrall, Muir and Noppinger, 36 Md. App. 225 (1977). The proof, if there was such, does not appear in the record. Accordingly, we have no choice but to conclude that the trial could not have begun for want of prosecution prior to June 1, 1976.

In view of the aforegoing, the fact that an additional delay (from June 15 until July 28 due to the assigned prosecutor’s preoccupation with another trial) must be charged to the State can only make appellant’s contention that he was denied a speedy trial stronger. Nor did his motions to consolidate his case with that of his codefendants (which were opposed by the State and denied by the court) weaken it. Furthermore, the insistence by the State upon obtaining a grand jury indictment, in the face of appellant’s waiver for purposes of expediting trial, is indicative of the utter lack of regard given by the State to its duty to move expeditiously in prosecuting appellant. See Barker, supra, 407 U. S. at 529; Epps v. State, supra, 276 Md. at 105. Two months were consumed by that procedural disregard.

On balance, we conclude that appellant was denied the right to a speedy trial because, while no actual prejudice was shown, he did make known his desire to be tried promptly, waiving another right to do so, and from the record, there is a lengthy delay ultimately chargeable to the State’s unconcerned languor, at best, or bad faith, at worst.

The other issues raised by appellant fall in the wake of our result.

Judgment reversed.

Costs to be paid by Prince George’s County.

      . Although it is not clear from the record, we divine that appellant was released shortly after the July 20 arrest, rearrested in November, and promptly released on bail. He apparently spent little or no time in jail.

      . The record does not unambiguously show that a prosecutor had not been assigned to the case, for no transcript of the hearing on the motion to continue is before us. However, appellant alleges in his brief that this was the basis of the State’s motion, and the State in its brief concedes that it “had not yet been able to assign an attorney to the case.” Furthermore, the assistant State’s Attorney who ultimately did prosecute the case stated in open court on the day of trial that he had not been assigned the case until July 28, 1976.

      . Md. Rule 740, by reference to Md. Code, Art. 27,- § 591, provides that
      "[t]he date established for the trial of the matter shall not be postponed except for extraordinary cause shown by the moving party----’’
      While § 591 is directory rather than mandatory, Young v. State, 15 Md. App. 707, aff'd 266 Md. 438, the.existence of the right to a speedy trial presupposes that a continuance cannot be allowed unless, in the context of the assertion of the right to a speedy trial, the trial judge finds — based On the State’s proof — that delay is justifiable. See ABA Standards for Criminal Justice, Speedy Trial § 1.3.


author: Powers, J.,

text:
    ATHLYN B. WALLER v. MONTGOMERY COUNTY, MARYLAND
    [No. 520,
    September Term, 1976.]

      Decided June 8, 1977.

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

      David L. Prestemon, with whom were Theodore A. Miller and Miller, Hall & Prestemon on the brief, for appellant.

      Richard E. Frederick, Assistant County Attorney for Montgomery County, with whom were Alfred H. Carter,

      Deputy County Attorney and Sondra Harans Block, Assistant County Attorney, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court,

Appellant, Athlyn B, Waller, was a middle-level merit employee of Appellee, Montgomery County, Maryland, On 4 April 1975, the County demoted Waller, for reasons which are not material to this case. He objected to this demotion by instituting a timely appeal to the County Personnel Board, Later, in October, a virtually automatic salary increment was withheld by action of his department head. This action also was appealed to the Personnel Board. Presumably, both appeals are still pending.

In August or September, Waller retained counsel, who initiated contact with officials of Montgomery County looking to an amicable solution of the pending disputes. On about 15 January 1976, appellant’s attorney met with a member of the County Attorney’s office, and presented certain proposals for consideration as a possible settlement of the demotion charges. After consulting with William H. Hussman, Jr., Chief Administrative Officer of the Montgomery County Government, Richard S. McKernon, the County Attorney, informed the appellant’s attorney that the County was not interested in settling. Hussman believed at that time that any negotiated settlement might be viewed as an attempt by the County to cover up or to buy a solution to a problem which had received considerable public attention.

Iri the latter part of January, 1976, Merrill J. Lemnah, Director of Facilities Management and Services, who was Waller’s department head and employment superior, instituted a personnel action recommending the dismissal of Waller. For some time Waller had incurred a degree of disfavor in his office, and Lemnah felt that Waller’s presence had a continuing disruptive effect on other employees and officials of the County Government.

Under County policy and practice, the dismissal could be executed only by the Chief Administrative Officer. Before acting upon the recommendation, Hussman forwarded the personnel action with the dismissal recommendation to the Office of Employee Relations, an adjunct of his office, in accordance with established procedure. This office regularly reviews recommended disciplinary action for compliance with personnel regulations, for sufficient documentation supporting the charges, and for indicia that the proposed disciplinary action is warranted. In this case, the Director of the Office of Employee Relations determined that the material adequately supported the charges and, if true, constituted adequate grounds for dismissal of Waller.

Upon receiving the report, Hussman modified his earlier view, and decided to entertain the possibility of a settlement with Waller. Further discussions were held with Waller’s attorney. Early in February, the County Attorney gave Waller’s attorney a draft copy of the memorandum of dismissal and summary of the charges against Waller, and told him that dismissal was under consideration. On the same or next day, the attorney gave Waller a copy.

Terms of settlement were discussed by counsel, including the transfer of Waller to some other department and his agreement to retire voluntarily within a year. Apparently the discussions also contemplated that any other action by Waller against the County, or the County against Waller, would be dropped in the event a settlement was reached. Early in March, Waller’s, attorney requested, and arrangements were made for a meeting of Hussman, Waller, and the two attorneys, for 17 March, to attempt to reach a settlement. Prior to this meeting, Waller discharged his attorney and called the meeting off, without setting an alternative date. There was no further contact.

On 2 April 1976 Hussman approved, and signed the appropriate documents to put into effect the dismissal action previously recommended by Lemnah. Termination became effective on 20 April. Commencing 6 April, Waller was placed on two weeks administrative leave, with pay. Waller received written notification of the County’s action by mail, after refusing to accept the papers tendered to him in person by Lemnah. The record indicates that Waller appealed this action to the County Personnel Board.

The present suit was filed in the Circuit Court for Montgomery County by Waller on 23 April 1976 as a law case. The initial pleading was a petition for declaratory judgment and for ancillary relief by mandamus and injunction. Waller asked the court to declare his dismissal unlawful, to issue a writ of mandamus directing the County to reinstate him, and to issue an ex parte injunction enjoining the County to reinstate him. On 26 April 1976 Judge Philip M. Fairbanks denied an ex parte injunction.

The case was tried on its merits before Judge Fairbanks on 21 May 1976. At the close of all the evidence, and after arguments of counsel, Judge Fairbanks entered judgment for the defendant, and dismissed the case. From this final judgment, Waller appeals.

Although in the transcript and in the exhaustive memoranda of law filed by the parties in the lower court there are references to the administrative remedy of appeal to the County Personnel Board, available to and actually invoked by Waller, this case was not filed as an appeal to the court from the action of an administrative body. We infer that the full evidentiary hearing before the Personnel Board, to which Waller is entitled, has not yet been held.

The prime thrust of appellant’s case, below and in his brief and argument here, was that he had a property interest in continued employment by the County, that he could not be deprived of that property interest except by due process of law, that due process required that before termination, he be afforded adequate notice of charges and a meaningful opportunity to respond, and that the procedures followed by the County in his dismissal denied him due process.

Appellee, both below and here, squarely met and argued the issues as raised by Waller.

We have carefully considered the issues argued, and the authorities cited in support of the arguments. Among the more significant cases which discuss the requirement of due process in the dismissal or other termination of service of a public employee are Arnett v. Kennedy, 416 U. S. 134, 94 S. Ct. 1633, 40 L.Ed.2d 15 (1974); Board of Regents v. Roth, 408 U. S. 564, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972); Satterfield v. Edenton-Chowan Bd. of Ed., 530 F. 2d 567 (4th Cir. 1975); Vance v. Chester County Board of School Trustees, 504 F. 2d 820 (4th Cir. 1974); Davis v. Vandiver, 494 F. 2d 830 (5th Cir. 1974); Schoonfield v. Mayor and City Council of Baltimore, 399 F. Supp. 1068 (D. Md. 1975); Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975); and Mondell v. Mayor and City Council of Baltimore, 378 F. Supp. 219 (D. Md. 1974).

Because our ruling in this case must be based upon another ground, we say only that if the due process aspect of the case were before us, we would hold, as did Judge Fairbanks, that in the procedures followed by Montgomery County in dismissing Waller from its employ, Waller was not denied the due process of law guaranteed him by the Fourteenth Amendment.

We proceed to discuss the ground upon which we dispose of this appeal — that Waller may not seek help in the courts until he has exhausted the administrative remedies available to him.

It is the general rule that where an administrative remedy is provided by statute, that remedy must be exhausted before the litigant may resort to the courts. Leatherbury v. Gaylord Fuel Corp., 276 Md. 367, 347 A. 2d 826 (1975); Chertkof Trust v. Department, 265 Md. 291, 289 A. 2d 314 (1972); Gingell v. County Commissioners, 249 Md. 374, 239 A. 2d 903 (1968); Gager v. Kasdon, 234 Md. 7, 197 A. 2d 837 (1964); Shpak v. Mytych, 231 Md. 414, 190 A. 2d 777 (1963); Poolesville v. County Council, 24 Md. App. 347, 330 A. 2d 711 (1975). Although there are some exceptions to the general rule, none is applicable in this case. See Nottingham Village v. Balto. Co., 266 Md. 339, 292 A. 2d 680 (1972); Poe v. Baltimore City, 241 Md. 303, 216 A. 2d 707 (1966); Poolesville v. County Council, supra.

In the present case, under the statutes of Montgomery County, Waller was provided administrative remedies, but he did not exhaust them before instituting his suit in the circuit court. Article 4 of the Montgomery County Charter and Chapter 33 of the Montgomery County Code 1972, as amended, established the administrative regulations which governed Waller’s employment as a merit system employee, including an action by the County to dismiss him. Specifically, Article 4 of the Charter provides for the reestablishment of a merit system and a Personnel Board, a reviewing body for personnel decisions, and recognizes the right to judicial review of decisions of the Personnel Board. Chapter 33 of the Montgomery County Code 1972, as amended, referred to as the Personnel Regulations, sets forth the causes for dismissal and the procedures to be followed.

Under Chapter 33, it is required that the employee be notified in writing of the dismissal action and reasons, and of his right to request a hearing before the Personnel Board (§ 33-23 (e)). Section 33-23 (h) of the County Code provides:

“Whenever an employee appeals a dismissal, the county personnel board shall grant him a hearing. In appeals from dismissal, the board may direct that the dismissal become filial, or it may rescind the dismissal and reinstate the dismissed employee to his former position, grade and salary step with or without the loss of pay; or it may decide the case in.any way that it deems equitable and in the best interest of the county service. The decision of the board on appeals from dismissal shall be final.”

Section 33-25 provides in detail for the conduct of Personnel Board hearings.

It is immaterial that Waller bases his claim for immediate relief in the courts upon alleged denial of constitutional rights. In Poe v. Baltimore City, supra, the appellants contended that “even though there be an administrative remedy, a court of equity may intervene and act when a constitutional question is involved.” 241 Md. at 308. Answering this argument, the Court said:

“There are few absolutes in the law, and the rule that an administrative remedy must be exhausted before recourse is had to the courts is not one of them. However, an analysis of our decisions shows that, while the principle may not bar court action under certain circumstances, the rule generally applies where the constitutional issue raised goes, not to the validity of the zoning ordinance as a whole, but to its application in a particular case, and where the administrative remedy is adequate.”

See also A. H. Smith Sand & Gravel v. Dep’t., 270 Md. 652, 313 A. 2d 820 (1974).

In the present case, Waller is askiñg the court to overrule the County’s decision to dismiss him and to force the County to return him to his job. It is clear that Waller is complaining only of the application of the Montgomery County personnel statutes to him, and not their general validity. Before Waller may raise constitutional issues going to the application of the statutes in his case, Waller must first exhaust his administrative remedies.

The requirement that administrative remedies be exhausted is often expressed in terms of a legislative mandate. That is, in enacting a statute, the legislature intended the administrative agency to perform the designated function first and fully. It did not intend the courts to preempt the procedures which it had enacted for administrative review.

In Gingell v. County Commissioners, supra, the Court of Appeals recognized this rationale for the doctrine. It said, at 376-77:

“The reasons for requiring the exhaustion of administrative remedies before resorting to the courts are that it is within the expertise of the administrative agency involved to hear and consider the evidence brought before it and make findings as to the propriety of the action requested; courts would be performing the function that the legislature specified be done by the administrative agency; courts might be called on to decide issues that would never arise if the prescribed administrative remedies were followed; and where a statute provides a specific form of remedy in a specific case then this remedy must be followed * *

A similar, and more concise explanation is found in RoAne v. Mathews, 538 F. 2d 852 (9th Cir. 1976), at 854:

“The purpose of exhaustion of remedies is to permit the agency to function efficiently, to afford it an opportunty to correct its own errors, to give the court the benefit of the agency experience and to compile a record that is adequate for judicial review.”

In Poolesville v. County Council, supra, this Court, through Judge, now Chief Judge, Gilbert, succinctly stated, at 354:

“In summary, our holding today is that ordinarily whenever an administrative agency has the authority to dispose of the issue by determining it in favor of the party seeking review, there must be an exhaustion of administrative remedies before recourse to the courts.”

The rule is founded upon sound logic as well as long established law. One who attempts to circumvent the law by seeking premature judicial review finds himself in a court which has no jurisdiction to hear him.

The Court of Appeals so held in Commission on Medical Discipline v. Bendler, 280 Md. 326, 373 A. 2d 1232 (1977). The Commission, after charges and a hearing, had suspended the license of a physician to practice medicine. The physician did not appeal to the Board of Review of the Department of Health and Mental Hygiene, although by statute the decision of the Board of Review is the final agency decision within that Department, for purposes of judicial review. She appealed, instead, to the Circuit Court for Montgomery County. That court held that the evidence before the Commission was insufficient to permit the suspension. The Court said:

“By not following the specified statutory procedure, Dr. Bendler failed to exhaust her administrative remedies and was therefore not then eligible to invoke the ordinary general jurisdiction of the courts.”

The effect, even though the issue of jurisdiction was not raised by the parties either below or on appeal, was explained by the Court of Appeals. It said:

“Since we find that the circuit court had no jurisdiction in the matter, we are precluded from reaching the merits of the case and must therefore dismiss the appeal.”

For the same reason, we do likewise.

Judgment vacated.

Case remanded for entry of an order dismissing the case for lack of jurisdiction.

Appellant to pay costs.

      . A dismissed employee is entitled to a hearing as a matter of right. Hearings before the Personnel Board are full evidentiary hearings, at which the employee has the right to cross-examination and to be represented by counsel (§ 33-25 (j)). The County has the burden of substantiating the charges and the burden of going forward with the evidence (§ 33-25 (k)).


text:
    STANLEY R. JACOBS et al. v. ATLANTCO LIMITED PARTNERSHIP NO. 1 et al.
    [No. 587,
    September Term, 1976.]

      Decided June 8, 1977.

    The cause was argued before Morton, Powers and Lias, JJ.

      William II. Manger, with whom was Patrick M. Pilachowski on the brief, for appellants.

      Ronald G. Bayne, with whom were Perdue, Owrutsky & Whitehead on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

We shall commence by listing and describing the cast of major characters involved in this case, which grew out of the purchase and sale of two blocks of land, located in the northern part of Ocean City, Worcester County, Maryland. They are:

1. Stanley R. Jacobs, a lawyer and real estate developer and investor. Jacobs is the principal appellant.

2. Atlanco Limited Partnership Number One. The name appears throughout the record in several minor variations. We shall refer to it as Atlanco. On 10 August 1972, and-for some months before and after that date, this entity owned the land involved in this case, Blocks 52 and 82, on Plat No. 2, Fenwick, Maryland. Atlanco and its general partners are appellees.

3. Ronald C. Pulliam, a real estate broker, and a general partner in Atlanco.

4. Herman E. Perdue, a lawyer, and a general partner in Atlanco.

5. WTR Company, a partnership, and itself a general partner in Atlanco. Robert W. Todd is the only visible partner of WTR Company.

In a written contract of sale dated 10 August 1972, Atlanco, acting through Pulliam as a general partner, agreed to sell, and Jacobs agreed to buy, Blocks 52 and 82 for the sum of $550,000.00. A deposit of $10,000.00 was paid. The balance was to be paid at settlement, which was to be on 15 January 1973. Other provisions of the contract significant to this case were: if the buyer failed to settle prior to midnight on 15 January 1973, “this contract shall be considered null and void”; title was to be good and merchantable (but there was no provision to extend the time for settlement to clear a title defect); and time was of the essence of the agreement.

Jacobs was acting throughout for a partnership known as Bojac Investment Company, in which Jacobs and F. Ripley Bowman were the partners. On 6 January 1973 Jacobs contracted to sell Block 82 to one Josh D. Richardson, for $300,000.00, to be settled on 15 January. Richardson promptly engaged Dale R. Cathell, an attorney in Ocean City, to examine title and prepare the papers necessary for settlement. At about the same time or within a day or two, Jacobs engaged Cathell to perform the same service for the overall transaction.

Settlement was scheduled for the morning of 15 January 1973, at Cathell’s office in Ocean City. Jacobs and Richardson appeared, with the necessary funds in the form of cash, certified check, and an acceptable loan commitment. Pulliam and Todd were'present. Perdue was in Salisbury, available by telephone. Cathell advised Jacobs that his examination of title had revealed a decree of the Circuit Court for Worcester County recognizing the right of one Raymond W. Clifford to occupy a portion of the property under some sort of leasehold interest. The decree, entered on 12 June 1972, indicated that Clifford had occupied a portion of Block 52, and had a construction trailer or office trailer on the property.

The decree appeared to resolve a dispute between Clifford and Todd, who was also making some use of a part of Block 52. Apparently Atlanco and its partners had been named in that suit, because the decree dismissed the case as to Atlanco and each partner therein.

The title attorney said that in his opinion the decree constituted a cloud on the title, and advised that settlement should not be held until the question was resolved. Shortly before the settlement day, Cathell had called Donald C. Davis, a law associate of Perdue’s, who was representing Atlanco, and discussed the Clifford decree with him. Davis felt that the decree did not affect the title to the property. Later in the day (some or all of the persons involved were in and out of Cathell’s office from time to time during the day) Pulliam informed Cathell that the partnership and Perdue insisted that settlement be made that day.

Perdue was adamant that the Clifford decree was not a cloud on Atlanco’s title. It seems that everyone in the community knew that Clifford had left the area — absconded”, they called it — months before, and was reputed to be in Florida. Perdue, through a law partner who was an issuing agent for Title Guarantee Company, prepared and offered to issue a binder for an owner’s title insurance policy on the property, with no exceptions. Jacobs consulted by telephone with two title insurance company offices, and concluded that a policy might not protect him against a defect of which he had actual knowledge.

Jacobs declined to settle, and notified the Atlanco partners that settlement should be deferred until the defect was cleared. At the request of Jacobs, Cathell prepared and filed a specific performance suit that afternoon. Clifford was located in Florida. The next day Mrs. Richardson, traveling down and back by airplane, obtained a release signed by Clifford and his wife.

Cathell notified all concerned that settlement was rescheduled for the morning of 18 January 1973. Everybody was present but Perdue. Reached by telephone, Perdue refused to sign the deed. He said the contract was breached when it was not settled on the 15th. He pointed out also that he was not obligated to sign the deed, because he had not signed the contract of sale, as required by Atlanco’s partnership agreement, which was a matter of public record.

After one of several telephone conversations with Perdue, Cathell informed Jacobs that Perdue would sign the deed if Jacobs paid an additional $50,000.00. Jacobs then had a series of telephone conversations — four or five — ^with Perdue. The net result of their discussions was that Perdue reduced his demand to $25,000.00, and Jacobs agreed to pay it, in the form of a one year note to Atlanco, secured by a mortgage on the property.

The note and mortgage were drawn, and signed by Jacobs. He arranged for the dismissal of the specific performance suit he had filed when the first settlement fell through. Perdue came to Cathell’s office later that day, and signed the deed. Settlement was concluded.

All appeared well, but the appearance was deceiving. Some four months later, in June 1973, Jacobs filed a bill of complaint in the Circuit Court for Worcester County against Atlanco, its general partners, and the broker who prepared the contract of sale. As later amended, the bill alleged the execution of the contract of sale between the parties, and the refusal of Perdue to settle, unless Jacobs gave a secured note for an additional $25,000.00. It further alleged that the note was given, but that there was a total lack of consideration for it, in that Perdue was already bound by the contract to execute the deed. The complaint prayed that the court declare the note and the mortgage securing it to be null and void, or in the alternative, enter judgment against the defendants for the amount of the note and interest.

There were demurrers, motions, and various other proceedings over the next two and one half years. The note was paid, and the mortgage released. A motion by the defendants for summary judgment was heard on 21 January 1976 before Judge Edward O. Thomas. On 30 January 1976 the motion was denied, and the case was tried on the merits. At the conclusion of the trial Judge Thomas rendered an oral opinion in favor of the defendants. When a judgment was thereafter entered for the defendants, the plaintiffs took this appeal.

As we see it, the facts of this case present a textbook illustration of the law of accord and satisfaction, and raise only one real issue. The position taken by Atlanco, largely through Herman Perdue, on the question of whether the contract became null and void for failure to settle on 15 January, and on the question of whether Perdue was legally bound to execute the deed, with disagreement by Jacobs on both questions, raised the disputes upon which an accord was reached. If Atlanco gave consideration for the accord, it became binding on both sides when Jacobs provided the satisfaction — the secured note for $25,000.00.

The issue, then, is whether the position of Atlanco on either or both of those questions was taken in the honest belief that it was an arguable position, and in good faith, or whether it was a pretext, not honestly believed, but raised for the purpose of exerting economic duress. If the former, Atlanco’s agreement to yield on both questions was consideration for the accord. If the latter, Atlanco gave no valid consideration, and the accord was a nullity.

The authorities are generally in agreement in discussing the law of accord and satisfaction. In 1 Am. Jur. 2d Accord and Satisfaction § 1 (1962 & Supp. 1976), it is said:

“* * * an accord and satisfaction may more properly be said to be a method of discharging a contract, or settling a cause of action arising either from a contract or a tort, by substituting for such contract or cause of action an agreement for the satisfaction thereof and the execution of such substituted agreement.”
* * *
“With respect to the terms separately, an accord is an agreement by one party to give or perform and by the other/party to accept, in settlement or satisfaction of an existing or matured claim, something other than that which is claimed to be due, and the satisfaction is the execution or performance of the agreement, or the actual giving and taking of some agreed thing. The accord is the agreement and the satisfaction is the execution or performance of such agreement. When an accord is followed by a satisfaction, it is a bar to the assertion of the original claim, but until so followed, it has no effect.”

A clear capsule definition is found in 1 C.J.S., Accord and Satisfaction, § 1 (1936 & Supp. 1976), which says:

“Accord and satisfaction is a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other, and perform such agreement, the ‘accord’ being the agreement, and the ‘satisfaction’ its execution or performance.”

The same work, in discussing consideration, says, 1 C.J.S. supra, § 4:

“The consideration need not be adequate, nor will the courts inquire into its reasonableness, as distinguished from its existence, and its amount or value does not affect the validity of the transaction; even though it is insignificant, or merely technical, the accord and satisfaction will nevertheless be sustained, provided, of course, the consideration is of some value, however slight, in the eyes of the law, for purported consideration of no value will not support the agreement. So even a slight modification, in accordance with these principles, of the status of the parties, resulting from the terms of the new agreement, is sufficient consideration.
“Thus consideration for an accord and satisfaction exists where something substantial which the debtor was not bound by law to do is done by him, or where he abstains, at the request of the creditor, from doing something which he has a right to do; it may consist in the performance of an act, or even the giving of a promise.”

We are not concerned here, and the Chancellor properly made it clear that he was not deciding whether Atlanco’s contentions were right or wrong. The significance of Atlanco’s forbearance to stand on its position, as consideration for the accord reached, is shown in 1 A. Corbin, Contracts, § 140 (1963 & Supp. 1971), where it is said:

“Claims made by one person against another are frequently disputed and may be invalid. The claimant may not have the right or the defense that he thinks he has. Of course, if his claim is valid and correct, his forbearance to press it is sufficient consideration for a return promise; this has been discussed in the preceding sections. But forbearance to press a claim, or a promise of such forbearance, may be a sufficient consideration even though the claim is wholly ill-founded. It may be ill-founded because the facts are not what he supposes them to be, or because the existing facts do not have the legal operation that he supposes them to have. In either case, his forbearance may be a sufficient consideration, although under certain circumstances it is not. The fact that the claim is ill-founded is not in itself enough to prevent forbearance from being a sufficient consideration for a promise.”

The author says further, in the same section:

“The most generally prevailing, and probably the most satisfactory view is that forbearance is sufficient if there is any reasonable ground for the claimant’s belief that it is just to try to enforce his claim. He must be asserting his claim ‘in good faith’; but this does not mean that he must believe that his suit can be won. It means that he must not be making his claim or threatening suit for purposes of vexation, or in order to realize on its ‘nuisance value.’ ”

The Court of Appeals discussed forbearance to assert a claim, as consideration supporting an agreement, in Snyder v. Cearfoss, 187 Md. 635, 51 A. 2d 264 (1947). The Court said, at 643:

“But it is also true that forbearance to sue for a lawful claim or demand is sufficient consideration for a promise to pay for the forbearance, if the party forbearing had an honest intention to prosecute litigation, which is not frivolous, vexatious or unlawful, and which he believed to be well founded, even though it may in fact be unfounded. Hartle v. Stahl, 27 Md. 157; Bowen v. Tipton, 64 Md. 275, 288, 1 A. 861; Emmitsburg R. Co. v. Donoghue, 67 Md. 383, 389, 10 A. 233, 1 Am. St. Rep. 396, We adopt the rule stated by the American Law Institute that forbearance to assert an invalid claim by a person who has not an honest and reasonable belief in its possible validity is not sufficient consideration for a contract of forbearance. 1 Restatement, Contracts, Sec. 76(b). We thus combine the requisite that the claim be made in good faith with the requisite that it must be reasonably doubtful. While emphasis is placed on the honesty and good faith of the claimant, forbearance is insufficient consideration if the claim forborne is so lacking in foundation as to make its assertion incompatible with honesty and a reasonable degree of intelligence. 1 Williston on Contracts, Rev. Ed., Sec. 135.”

In Scheffenacker v. Hoopes, 113 Md. 111, 77 A. 130 (1910), a printer had accepted his customer’s check for less than the amount of a disputed bill, tendered by the customer as full settlement. The printer did not cash the check, but had caused it to be certified by the customer’s bank. The printer sued the customer for the difference. The lower court directed the jury to find for the defendant. The Court of Appeals affirmed. It said, at 115:

“This instruction was based upon the theory that the act of the plaintiff in causing the check to be certified was an acceptance of the part payment and compromise offered by the defendant in full settlement of the plaintiffs controverted demand, and that as the terms of the offer, the existence of the dispute and the fact of acceptance were uncontradicted and established conclusively an accord and satisfaction, there was no question left for the jury to determine.
“The principles applicable to a defense of this character are well settled. In the case of a liquidated claim, such as the present one may be assumed to be for the purposes of this decision, an acceptance of part of the amount in satisfaction of the whole will bar a recovery of the remainder if the settlement is supported by some consideration additional or collateral to the partial payment. Booth v. Campbell, 15 Md. 575; Maddux v. Beavan, 39 Md. 504; 1 Poe, sec. 654; 1 Cyc. 311. ‘Anything which would be a burden or inconvenience to the one party or a possible benefit to the other’ may constitute such a consideration; Maddux v. Beavan, supra; and the compromise of a disputed claim is a familiar and favored basis for an accord and satisfaction.”

Although not necessarily in the context of the law of accord and satisfaction, courts do not hesitate to declare void, when appropriate, a purported contract entered into as a result of economic duress. In First National Bank of Cincinnati v. Pepper, 454 F. 2d 626 (2nd Cir. 1972), the court said, at 632:

“Under New York law, which governs, ‘A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his free will.’ Austin Instrument, Inc. v. Loral Corp., 29 N.Y.2d 124, 130, 324 N.Y.S.2d 22, 25, 272 N.E.2d 533, 535 (1971), and duress may take the form of unlawful restraint of property or use of wrongful economic compulsion to force a party to yield to demands that would otherwise be rejected. See Austin Instrument, Inc. v. Loral Corp., supra (economic duress through business compulsion), and the landmark New York decision Harmony v. Bingham, 12 N.Y. 99 (1854) (duress of property). The general rule as to duress of property or goods is that ‘where one party has control or possession of the goods of another and refuses to surrender such goods to the owner thereof except upon the latter’s compliance with an unlawful demand, a contract made by the owner to emancipate his property is considered as one made under duress and thus avoidable.’ ”

In Pecos Constr. Co. v. Mortgage Invest. Co., 459 P. 2d 842 (N.M. 1969), there was a loan commitment for $1,600,000 for a housing project. When Pecos had expended considerable sums of money on the project, Mortgage Investment declared it would not furnish the financing unless Pecos paid to another lender, a claim of $12,000 being asserted against Mortgage Investment. Pecos paid, and later sued for the amount paid, interest, and damages for delay. The trial court found that there was no bona fide dispute, and awarded judgment to Pecos. The Supreme Court of New Mexico affirmed, holding that fear of economic loss was a form of duress, and that duress, amounting to business compulsion, had been practiced on Pecos.

Appellants argue in their brief that the case presents four questions for decision by this Court. We feel that all four questions are misconceived. Two of them ask the legal validity, vel non, of Atlanco’s position that the title to the property was good and merchantable, and that the partnership was not bound by the contract of sale because it was not signed by all of the general partners.

Those questions were not decided below, and will not be decided here, for the simple reason that the correct answer ro them is not material to any issue in the case. What is material is whether Atlanco’s positions on those questions were asserted in good faith, in the honest belief that they were well founded.

There was little if any conflict in the direct evidence, but the inferences to be drawn from the evidence were both disputed and controverted. The Chancellor found that Atlanco’s position on each question was based upon honest belief, and was taken in good faith. The measure of our inquiry on appeal is whether the evidence was sufficient to support those findings. We may not set aside the judgment of the lower court on the evidence unless it was clearly erroneous. Maryland Rule 1086. The regard which we must give to the opportunity of the lower court to judge the credibility of the witnesses can be of critical importance when the findings relate to intent, or a state of mind, and necessarily are arrived at largely through a process of inference.

On the second settlement day, Atlanco, through Perdue, contended that the contract of sale was no longer binding, because settlement was not made on 15 January 1973. Not only did the contract form contain a “time being of the essence” clause, but the parties had given further emphasis to the importance of timely performance by adding the typewritten provision:

“In the event that Buyer fails to settle prior to midnight, January 15, 1973, this contract shall be considered null and void with the deposit being retained by Seller as liquidated damages.”

In taking the position he did, Perdue was presumably aware of the law. In C. L. Eshelman Co. v. Friedberg, 214 Md. 123, 133 A. 2d 68 (1957), the Court of Appeals said, at 133-34:

“When time is of the essence of a contract, it means that the performance by one party at the time, or within the period cf time, specified in the contract is essential in order to enable him to require performance from the other party; it does not mean merely that time is a material matter, but that it is so material that a strict compliance in this respect is necessary to the right to require counter-performance.” [Citations omitted.]

It is clearly shown in the evidence that Perdue was not only willing to complete the settlement on the 15th, but was insistent that it be completed on that day. When Jacobs declined to proceed because of what he felt, upon legal advice and with unquestioned good faith, was a defect in the title, Perdue, although he and Atlanco's legal adviser believed that the title was good and merchantable, attempted to satisfy Jacobs’s doubts by offering to provide title insurance against the possible defect.

The Chancellor could properly find, we believe, that each of the two conflicting views on the state of the title had some substance, and that neither was frivolous. In determining whether Perdue’s position was taken in good faith, the Chancellor could properly consider the fact that Perdue was willing to back it up by arranging for the issuance of a policy of title insurance.

It is apparent from the testimony of both Jacobs and Perdue that Perdue’s attitude changed between the two settlement dates. On the second date he was, to say the least, annoyed that settlement had not been accomplished the first time. He raised, for the first time, an objection which was equally available on the earlier date — that he was not bound because he had not signed the contract of sale. While the question is a more difficult one, we cannot say that the Chancellor clearly erred in finding that objection, as well as the first, to have been made honestly and in good faith. If Perdue’s position seemed harsh, it must be remembered that it is not duress for a party to insist upon what he believes to be his legal rights.

The appellants also contend that the court erred in finding as a matter of law that Atlanco’s abandonment of its dispute furnished sufficient consideration for the accord. The court made no ruling that any particular state of facts existed as a matter of law. It was at the heart of appellants’ own case that on 18 January 1973 Atlanco disputed its obligation to .settle under the terms of the contract, and that it retreated from that position only after it was “bought off’ by the $25,000.00 note. To that fact the Chancellor added his findings of fact that Atlanco’s position was based upon honest belief, and was taken in good faith, The legal ruling upon those facts was inevitable.

The remaining question argued by appellants is that the Chancellor erroneously placed upon them the burden of proving lack of consideration for the accord. We feel that the question misinterprets the Chancellor’s opening comment, made at the outset of his oral opinion. He said:

“Well, the sum and substance of the whole thing, and the reason that I didn’t grant the Summary Judgment, is that I did not truthfully feel that the Plaintiff had had his day in court to prove absence of consideration. I hadn't had the benefit of testimony from people involved, as to whether it was a valid dispute as to facts, and whether there was any valid consideration for the $25,000.00.”

We do not read into that comment any expression one way or the other on burden of proof. It is clear from the Chancellor’s opinion that on no issue was his mind in a “state of even balance”, so as to be affected by the burden of persuasion. If the burden had been involved, it would have been upon the plaintiffs. They alleged the accord, and the satisfaction, and they assumed the affirmative of the issue they raised — that the note was invalid because there was no valid consideration for the accord.

We hold that the Chancellor correctly applied the law, and committed no error.

Judgment affirmed.

Appellants to pay costs.

      . There may be a discrepancy concerning the actual date of settlement. There are some indications that it was on 17 January, but it makes no difference which is correct.