author: Menchine, J.,

text:
    JAMES MATTHEW LONG v. STATE OF MARYLAND
    [No. 858,
    September. Term, 1975.]

      Decided May 7, 1976.

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

      Richard A. Cooper, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and NajiP. Maloof State’s Attorney for Calvert County on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

James Matthew Long was convicted by a jury in the Circuit Court for Calvert County on a charge of grand larceny. He was sentenced to imprisonment for a term of eight years.

On appeal, appellant contends, inter alia, that:

“The trial judge’s order, given in the presence of the jury, that a defense witness be taken into custody by the sheriff following his testimony prejudiced the appellant’s right to be fairly tried by an impartial jury.”

John Long, father of appellant, had been called to the stand as a witness for the defense. There were three areas of misunderstanding or contradiction in the course of his testimony. They were: (a) whether a white, 1963 Chevrolet automobile, fitting the description of the vehicle used in the larceny, had been in use on the date in question; (b) whether the son had been at home that day; and (c) whether or not he had seen his son on the day of the larceny.

At one point in his testimony the witness had stated that the automobile tags had been removed from the vehicle and sent back to the Commissioner of Motor Vehicles. Later testimony indicated uncertainty or equivocation as to that fact. The witness did not, however, retreat from his testimony that the car had not been used on the crime date.

The following excerpts from the record will set the background in which the alleged impropriety occurred:

“Q Has he [the son] ever driven the car without tags? You don’t know that either?
A That car hadn’t left the yard.
Q You were there all day that day?
A Can you automatically park a car in the same tracks and don’t have no track behind it?
JUDGE." He didn’t ask you that. He asked you were you there all day. Answer the question.
THE WITNESS: Yes, I was there all day.
Q You never went away from that house, is that right?
A I’m away sometime but I would know if the car was moved.
Q You would know if the car was moved?
A That’s right.
Wasn’t no tracks behind it and none in the front.
JUDGE : Ask your next question.
MR. MALOOF:
Q Sir, do you have any idea why your son would tell the Police Officer that he was in the house that very day when the Police Officer was asking you where he was?
Q Answer the question, sir?
A I wouldn’t know who was at my house if I went to the store and come back.
Q Well sir, was he there on that day, was James in your house on August the 10th, 1973?
A I can’t tell you who was in the house on---
Q Well, sir, you just testified under oath that he wasn’t in your house---
A I said I couldn’t tell you that. You can’t tell me that I’m testifying under oath. I’m outside and come in.
Q Sir, do you realize you’re under oath?
A I know I’m under oath and I’m going to tell you the truth. I’m---
Q Sir, do you remember saying—
A I’m all—
JUDGE: Just listen to the question.
THE WITNESS: I’m answering him.
JUDGE: Shut up and listen to the question.
MR. MALOOF:
Q Sir, do you remember saying just ten minutes ago that absolutely James was not at your house that day?
A As I seen.
Q As you seen?
A That’s right and I’m telling you.
Q Sir, did you have your eyes open?
A Did you understand what I was asking you? I’m- - -
Q I asked you did you have your eyes open---
A When I’m away from the place and come in, definitely I couldn’t say, Judge,---
JUDGE: You are saying now you were away from the place?
THE WITNESS: I had been away and come
in.
JUDGE: Do you want him held, Mr. Mafoof?
MR. MALOOF: Yes, Your Honor. I do want him held.
JUDGE: All right. Go ahead and finish your questions.
THE WITNESS: I say I was away and I come in.
MR. MALOOF:
Q How many times were you away that day, sir?
A Well, I occasionally go to the store to get something for the farm. I raise tobacco. I’m disability [sic],
Q Did you see him on that day?
A I did not see him that day.” (Emphasis added.)

The witness also had disputed the testimony of a state trooper who had said that the vehicle in question was being washed when the officer visited the Long farm on the day of the larceny. He testified:

“Q You’re positive no one was washing it?
A I didn’t see anybody washing the car.
Q You were there?
A When I leave I come in on the back end where I’m farming at and I’m working in the field and I can look straight up in the yard and see anything that’s up on my place.
Q And you saw the Police Officer come into your yard?
A Yes, and came up and I had the keys to the car.
Q And you’re now saying that no one was washing the car at that time?
A No, wasn’t nobody washing the car. The car had been washed some but definite I did not see James there.”

Immediately following the last question to the witness the trial judge said:

Very well, you report to the Sheriff. Sheriff take him in custody.” (Emphasis added.)

Defense counsel then addressed the court as follows:

“Your Honor, I would at this time make a motion in which occurred concerning the testimony and the fact that Mr. Long, John Long, as a witness was held. I feel that the matter of him being instructed by the Court to be held, the inference being that he may have perjured himself. That being done in front of the Jury is prejudicial to the defendant and I would ask for a Mistrial on that basis.”

The trial judge responded as follows:

“Well, the Jury heard his testimony and as far as his conduct is concerned, the only thing I told him to do is report to the Sheriff. The Jury doesn’t know whether he is reporting for Perjury or Paternity or owes a bill or what. I don’t believe that has anything to do with the outcome of this case. The Jury certainly could not possibly believe both the statements he made. They couldn’t believe him when he said he was there all day, and then turned around and said he went to the store twice. One or the other of those has got to be wrong and I think it is a question of credibility but not grounds for mistrial. I will deny the motion.”

An annotation in 127 A.L.R. 1385, “Statements, comments, or conduct of court or counsel regarding perjury, as ground for new trial or reversal in civil action or criminal prosecution other than for perjury” discusses in considerable depth the effect, in jury trials, of indications by the trial court by word or action, that a witness will be committed for perjury. The general rule is thus stated:

“It is a general rule that the court’s commitment for perjury of a party or witness in the presence or hearing of the jury, or under circumstances calculated to come to their knowledge, or the making of an order therefor, in like situations, constitutes reversible error, as an encroachment upon the right of the jury freely to consider a witness’s testimony, uninfluenced by the court’s unauthorized direction or opinion as to the credibility of the witness or the weight of the testimony.” 127 A.L.R. at 1394.

That Maryland subscribes to the stated general rule is apparent. In Newton v. State, 147 Md. 71, 127 A. 123 (1924), the trial judge commented in the course of the testimony of a witness: “You know better than that, Mr. Gillespie.” Conviction was reversed because of the remarks of the trial judge, the Court saying at 87-88 [130]:

“The remark involved in the forty-ninth exception was equivalent to a statement by the court that the witness Gillespie had testified to what he knew to be untrue, and was a direct reflection upon his credibility. That such is its effect is admitted by the State in its brief, where this frank but singular statement is found: ‘The answers of the witness to this question were clearly evasive and certainly merited the comment of the court. Inasmuch as the only effect a comment could have had was to affect the credibility of the witness before the jury and did not of itself cast any reflection upon the traverser, certainly the traverser was not prejudiced thereby.’ Inasmuch as the traverser’s case depended upon the credibility of his witnesses, it is not easy to see how anything could possibly prejudice him more than a conclusion that their testimony was not credible, and there was in our opinion error in this ruling.”

In Elmer v. State, 239 Md. 1, 209 A. 2d 776 (1965), the trial judge’s comments had reflected adversely upon a witness. Although defense counsel had not moved for a mistrial or to strike the judge’s comments, the Court of Appeals reversed. After discussing numerous Maryland cases dealing with the subject, the opinion by Sybert, J. for the Court said at 10 [781-82]:

“When the trial judge declared Davis a witness hostile to the State, after he had been called by the State and had given testimony favorable to the defense, the judge’s remark clearly indicated his disbelief of the witness and unquestionably influenced the jury’s appraisal of the credibility of the witness. It was, of course, the function of the jury alone, as the triers of the facts, to weigh and determine that factor. The rule in such cases was stated by this Court in United Rys. Co. v. Carneal, 110 Md. 211, at pp. 232-233, 72 Atl. 771 (1909), and quoted in Marino v. State, supra (at p. 110 of 171 Md.), as follows:
‘* * * It is undoubtedly true that a trial Judge, because of his high and authoritative position, should be exceedingly careful in any remarks made by him during the progress of a trial, either in passing upon evidence or ruling upon prayers, and should carefully refrain, either directly or indirectly, from giving expression to an opinion upon the existence or not of any fact, which should be left to the finding of the jury * * *.’
The rule was applied in Newton v. State, 147 Md. 71, 86-88, 127 Atl. 123 (1924), where this Court held (upon objection, unaccompanied by any motion) that remarks made by the trial court in the presence of the jury which directly reflected upon the credibility of a defense witness constituted prejudicial error.
“We think that the appellant must be granted a new trial. It should be noted that we are not deciding that the trial judge was wrong in concluding the witness was hostile, but rather that, even though his conclusion was correct, the prejudicial error was committed by not making the declaration of the witness’ hostility (if any such declaration was felt necessary) out of the presence of the jury.”

We believe that the trial court’s comments and directions to the sheriff could be interpreted only as indicative of his disbelief of the witness and as expressing a purpose to subject that witness to prosecution for perjury.

To follow such a course in the presence of the jury constituted prejudicial error.

Because we find it necessary to reverse and remand for a new trial, we do not reach the other issues raised on appeal.

Judgment reversed.

Case remanded for new trial.

       Language is as it appears in transcript.

      . See, particularly, pp. 1392-1398.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    AMERICAN AMBULANCE & OXYGEN SERVICE et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
    [No. 923,
    September Term, 1975.]

      Decided May 7, 1976.

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

      Martin McGuire, with whom was George L. Russell, Jr., on the brief, for appellants.

      J. Warren Eberhardt, Assistant City Solicitor, with whom were Benjamin L. Brown, City Solicitor and Ambrose T. Hartman, Deputy City Solicitor on the brief, for appellee Mayor and City Council of Baltimore. A. Howard Metro for other appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Before an ambulance service may be lawfully operated in Baltimore City, a license must be obtained from the Commissioner of Health of that municipality. Baltimore City Code art. 15, §§ 1-7 (1966).

Desirous of operating a licensed ambulance service within the territorial confines of Baltimore City, Suburban Ambulance Service, Inc., of Silver Spring, Maryland, applied to the Commissioner of Health for the express purpose of having licenses issued for five ambulances. In accordance with Regulation 6 (b) (1), of the “Rules and Regulations Governing Ambulance Operations” that the Commissioner had promulgated pursuant to Baltimore City Code art. 15, § 4 (1966), the Commissioner notified “. . . each and every existing ambulance vehicle licensee . . .” of the pending application. Regulation 6 (b) (1) requires that other licensees be advised of the time and place of the public hearing that is mandated by the regulation. In addition, a notice of the hearing must be published in a .. local newspaper once a week for the three consecutive weeks immediately preceding the ... hearing.”

At the time of hearing, January 22, 1975, Mr. Willie Runyon, the owner of five ambulance services, appeared, with counsel, in opposition to the granting of the licenses to Suburban. The affidavit to which we have alluded in footnote 2, supra, recites:

“... Following the hearing, the hearing commission consisting of James D. Carr, MD, Assistant Commissioner, Local Health Services, Philip A. Berman, Acting Chief, Division of Institutional Facilities, John B. DeHoff, MD, Commissioner of Health and .. . [C. Edward Sachs, Director — Bureau of Environmental Hygiene] approved Suburban Ambulance Service, Inc.’s petition for three vehicles for operation in Baltimore City.”

The five services owned by Mr. Runyon, i.e., American Ambulance & Oxygen Service; Armacost Ambulance and Oxygen Service, Inc.; Community Ambulance Service; MWG Ambulance Service, Inc.; and Mayple Hill Ambulance Service, appealed to the Baltimore City -Court. The City and Suburban responded to the appeal by filing separate motions raising preliminary objections. Md. Rule 323. The basis of the City’s motion was twofold. First, the City contended that the court lacked jurisdiction over the subject matter because the Runyon-owned companies were not aggrieved persons within the meaning of Baltimore City Code art. 15, § 4, and second, there was a “Want of necessary parties.” The reason for the latter assertion was that in their appeal the appellants had named not only the Mayor and City Council of Baltimore as an appellee, but had also designated the “Baltimore City Health Department” as an appellee. The City asserted that the Department of Health “.. . is not a legal entity ...”, but rather a department of the City government and, thus, was not a proper party. Suburban’s motion to dismiss raising a preliminary objection asserted that the appellants lacked the legal capacity to sue.

In the Baltimore City Court, Judge James W. Murphy determined that appellants were . . not ‘aggrieved’ parties .. .” in that they were not .. personally and specially affected in any way different from . .. the public generally, except for a possible competition from the new licensees.”

The appellants then appealed to this Court asserting that Judge Murphy erred in holding that appellants were not parties aggrieved by the action of the Commissioner and lacked standing to appeal to the trial court.

Recently, in Prince George’s County v. Fahey, 28 Md. App. 312, 345 A. 2d 102 (1975), we, on motion of Fahey, dismissed an appeal because it was not sanctioned by the Prince George’s County Ordinances and Resolutions. We said that:

“.. . It is a fundamental principle of law that in those cases where a trial court exercises a special limited appellate jurisdiction, which has been conferred by statute, no appeal from the trial court to this Court is permitted absent a statutory provision authorizing further appeal to us. Sugar v. North Balto. M.E. Church, 164 Md. 487, 499, 165 A. 703, 707-08 (1933). See also Urbana Civic Ass’n v. Urbana Mobile Village, Inc., 260 Md. 458, 461, 272 A. 2d 628, 630 (1971).” 28 Md. App. at 315.

Baltimore City Code art. 15, § 6 provides:

“Appeals.
Any person aggrieved by any action or refusal of action by the Commissioner of Health under the provisions of this subtitle may appeal his case to the Baltimore City Court where it shall be heard de novo. The Court may affirm, reverse, or modify the action or refusal of action by the Commissioner of Health.”

The above quoted language of article 15 is the only portion of the ambulance license provisions concerned with appeals. It is patent that section 6 permits appeals to the Baltimore City Court, but it does not contain authority for further appeal.

Pursuant to Md. Rule 1035 a 2, we, sua sponte, dismiss the appeal of the appellants because “[t]he appeal is not allowed by law ....” We do so on the basis of what we said in Prince George’s County v. Fahey, supra:

“The law in Maryland is that unless a State legislative enactment has delegated to a county [or Baltimore City] the authority to sanction appeals from county [or city] agencies to the courts, the county [or city] is without the power to provide for such appeals. Urbana Civic Ass’n v. Urbana Mobile Village, Inc., supra. Where the legislature has permitted the county to authorize appeals to the courts, no appeal may be taken, except on jurisdictional grounds, Bd. of Med. Examiners v. Steward, 203 Md. 574, 580-81, 102 A. 2d 248, 251 (1954), unless a county [or city] ordinance expressly provides for the appeal.” 28 Md. App. at 316.

Where, however, the city of Baltimore or a county, has the power to permit appeals to the State appellate courts, but the ordinance limits the appeal to a court of the Supreme Bench or the county circuit court, no further right of appeal is recognized. Prince George’s County v. Fahey, supra. “In the absence of an express grant of appellate jurisdiction, we cannot entertain a review of ‘the decision of the . .. [Baltimore City Court] in this special statutory proceeding except on jurisdictional grounds.’ Urbana Civic Ass’n v. Urbana Mobile Village, Inc., supra [260 Md.] at 461.” 28 Md. App. at 316.

The Baltimore City Health Department is not a State agency so that the Administrative Procedures Act, Md. Ann. Code art. 41, § 244 et seq., which would empower an appeal from a decision of a State agency to this Court, does not apply.

The ordinance in the case sub judice expressly provides for an appeal to the Baltimore City Court. That court is the proper forum to which appeals from the decisions of the Commissioner of Health of Baltimore City are to be noted. The jurisdictional exception mentioned in Urbana Civic Ass’n v. Urbana Mobile Village, Inc., supra, is not present in this case. There is nothing for us to consider as we are without jurisdiction to decide this case on its merits.

Appeal dismissed.

Costs to be paid by appellants.

      . These provisions of the City Code were originally enacted as Ord. 734,1965-66, §§ 72B-G.

      . An affidavit in the record indicates compliance with Regulation 6 (b) (!)•

      . The second contention, however, need not concern us in this appeal because it does not appear to have been any part of the foundation upon which the hearing judge rested his decision to grant the City’s motion.


author: Orth, C. J.,

text:
    JOHN A. SCHAEFER v. STATE OF MARYLAND
    [No. 943,
    September Term, 1975.]

      Decided May 7, 1976.

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

      Benjamin Lipsitz for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City and Thomas Caskey, Special Attorney on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 22 May 1975 in the Criminal Court of Baltimore, JOHN A. SCHAEFER, an incumbent member of the City Council from the First Councilmanic District of Baltimore City, was found guilty by a jury of having a financial interest in certain contracts with Baltimore City, a misdemeanor proscribed by Art. VII, § 126 (a) of the Charter of Baltimore City, 1964 Revision. On 12 June 1975 he was sentenced to imprisonment for six months in the Baltimore City Jail, the first thirty days to be served and the balance of five months to be suspended while on probation in the care of the Maryland Division of Parole and Probation. He was directed to pay court costs. He appealed.

Schaefer seeks to reverse the judgment on one claim, that the trial court erred in denying his pre-trial motion to dismiss the charging document on which he was tried. The charging document was a summons issued by a judge of the District Court of Maryland. The motion to dismiss the summons set out six reasons why it was invalid, but on appeal Schaefer relies only upon those reasons relating to probable cause for its issuance. He asserts:

(1] the summons required probable cause.
(2) the application for the summons failed to establish probable cause.
(3) the determination of probable cause was made by the prosecutor, not the judge.

(1)

Under the Maryland District Rules, effective 5 July 1971, a charging document means “arrest warrant, summons to a defendant, statement of charges, citation, or criminal information.” M.D.R. 702, § a. The first two are relevant on this appeal, a summons because it was the type of charging document under which Schaefer was charged and tried, and the arrest warrant, as will become apparent, because of its relationship vis-á-vis a summons to the question of probable cause.

A basic distinction between a warrant and a summons is the immediate disposition to be made of the accused. “An arrest warrant shall command that the defendant be arrested and brought before a judicial officer. A summons shall... command a defendant to appear in court at a stated time and place . .. .” M.D.R. 706, § e. This distinction is reflected in the provisions dictating whether a summons or a warrant shall be issued. It is mandatory that a summons to an individual defendant rather than an arrest warrant be issued when the defendant is charged only with a petty offense, and in any case in which the State’s Attorney so requests, “[ujnless the issuing officer finds after due inquiry that (i) the defendant has previously failed to respond to a summons for an offense other than a non-moving traffic offense; or (ii) there is a substantial likelihood that the defendant will not respond to a summons; or (iii) the whereabouts of the defendant is unknown and the issuance of an arrest warrant is necessary to subject him to the jurisdiction of the court . .. .” M.D.R. 706, § c 2 (a) (2). Permissive issuance of a summons is authorized “in any case in which the issuing officer has reason to believe that the defendant will appear in response thereto.” M.D.R. 706, § c 2 (b) . With respect to an arrest warrant, it shall be issued, “[ejxcept where a judicial officer is required or permitted to issue a summons,... if it appears to the issuing officer upon [proper] application . . . that there is probable cause to believe that a crime has been committed and that the defendant has committed it.” M.D.R. 706, § c 1. Also an arrest warrant shall issue “[i]f an individual defendant fails to appear in response to a summons . .. .” M.D.R. 706, § c 2 (c) . In many other respects a summons and an arrest warrant are similar. Each may be issued only upon application with identical requirements. “An application for an arrest warrant or summons to a defendant shall be made in writing, signed by the applicant upon oath before a judicial officer,” M.D.R. 706, § a, defined as “a District Court judge or commissioner”, M.D.R. 702, § f. Both an arrest warrant and a summons must contain specified matters which result in their substantial similarity in form and content. See M.D.R. 706, § e. A warrant shall be executed by the arrest of the defendant, M.D.R. 706, § f 1, and promptly after his arrest the defendant shall be given a copy by the arresting officer, M.D.R. 706, § d. A summons shall be served by delivering a copy to the defendant personally. M.D.R. 706, § f 1. There must be a prompt return made of each. M.D.R. 706, § f 2.

As we have indicated, in dealing with the issuance of an arrest warrant Rule 706 refers in § c 1 to “probable cause [for the issuing officer] to believe that a crime has been committed and that the defendant has committed it.” The Rule makes no reference to probable cause in connection with a summons to a defendant. But Courts Art. § 2-607 (c) provides, inter alia: “A [District Court] commissioner shall receive applications and determine probable cause for arrest warrants and criminal summonses. He shall . . . conduct investigations and inquiries into the circumstances of any matter presented to him in order to determine if probable cause exists for the issuance of a warrant or criminal summons . . . .” Courts Art. § 2-607 (c) originated before the effective date of the Maryland District Rules as Acts 1970, ch. 528, § 1, codified as Art. 26, § 154 (c). It read like the present statute except that it concerned only arrest warrants; it did not include criminal summonses. These provisions remained unchanged when the statute was amended by Acts 1971, ch. 423, § 1, which added paragraphs (i) (ii) and (iii) relating to the issuance of summonses in lieu of warrants. Those paragraphs were deleted by Acts 1972, ch. 181, § 24, which, however, added “criminal summonses” to the probable cause provisions, so that those provisions read as they now read in Courts Art. § 2-607 (c). The legislative intent is clear; neither arrest warrants nor criminal summonses are to be issued except upon probable cause. Courts Art. § 2-607 (c) and M.D.R. 706 must be read together. The scheme is plain. Upon application for a charging document, the judicial officer must first believe that there is probable cause to support its issuance. If he determines that probable cause exists, then he looks to the Rule to determine whether the charging document will be an arrest warrant or a summons to a defendant. To assist him in the application of the Rule he “may make inquiry concerning the defendant’s residence, employment, family relationships, past history of response to legal process, and past criminal record.” M.D.R. 706, § b. M.D.R. 706 in no way negates the clear legislative expression that both warrants and summonses shall be issued on probable cause. The requirement of § c 1 for the issuance of a warrant is not to be construed as declaiming, in the light of the statute, that probable cause is not necessary for the issuance of a criminal summons. Nor is it of any moment that the statute speaks only of commissioners. The Rule makes no distinction between judges and commissioners in the issuance of warrants and summonses. It would be an absurd result, and contrary to the fair administration of justice if probable cause were essential for the issuance of a warrant whether by a commissioner or a judge and essential for the issuance of a criminal summons by a commissioner, but not essential for the issuance of a criminal summons by a judge. We note that the same form is used in the District Court to apply for an arrest warrant and a summons to a defendant. Whether an arrest warrant or a summons is sought, the form calls for a “Concise statement of facts showing probable cause that defendant(s) committed a criminal offense.” And whether a warrant or a summons is issued, it must contain “a plain, concise and definite statement of essential facts constituting each offense charged .. ..” M.D.R, 706, § e (2). The form is designated as “Application for Summons/Arrest Warrant.” It begins: “The undersigned applies for an arrest warrant/summons to be issued against ... .” It calls for the signature of “Judge/Commissioner” as the person before whom it was sworn and subscribed. In each instance the inappropriate word is simply stricken.

We conclude that a summons within the contemplation of M.D.R. 706, like an arrest warrant, shall be issued only if it appears to the District Court judge or commissioner upon application in writing signed by the applicant under oath before the issuing officer that there is probable cause to believe that a crime has been committed and that the accused has committed it.

Our inquiry turns to the nature of the probable cause required for the issuance of an arrest warrant and a summons to a defendant. We noted in Hignut v. State, 17 Md. App. 399, 409 (1973): “The definition of ‘probable cause’ remains a constant, of course, applying alike to searches and to arrests, with warrants or without warrants.” We believe the definition applies also to “a summons to a defendant” within the contemplation of the statute and Rule discussed above. The quantum of required probable cause is the same to justify the issuance of a search and seizure warrant or an arrest warrant or a summons to a defendant. See Aguilar v. Texas, 378 U. S. 108, 112, n. 3 (1964); Giordenello v. United States, 357 U. S. 480, 485-486 (1958); Dawson v. State, 11 Md. App. 694, 697, n. 1 (1971), cert. den., 263 Md. 711 and 712 (1971). The Court of Appeals said in Edwardsen v. State, 243 Md. 131, 136 (1966): “[T]he rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse mere suspicion.” We set out the rules governing probable cause for the issuance of a search warrant in Buckner v. State, 11 Md. App. 55, 61-62 (1971), cert. den., 261 Md. 723 (1971). We adapt them to probable cause for the issuance of a' summons to a defendant. A District Court judge or commissioner may issue a summons to a defendant when it is made to appear to him by a written application signed and sworn to by the applicant containing facts within the personal knowledge of the affiant or of which he had reasonably trustworthy information, that there is probable cause to believe that a crime was committed and that the accused committed it. Probable cause is less than certainty or demonstration but more than suspicion or possibility. It is to be determined by the judicial officer to whom application for the summons is made. If a prudent and cautious man would be justified from the facts presented in believing that the offense has been committed and the accused committed it, the summons may properly be issued. In determining the • existence vel non of probable cause, the judicial officer may give consideration to the special significance which objects, happenings, and individuals may have conveyed to a trained, experienced and knowledgeable person swearing to the facts set out. Those sworn facts may be based on hearsay information even from an unidentified informant, and need not reflect the direct personal observations of the affiant, but they must contain some of the underlying circumstances from which the affiant could be reasonably justified in a belief that the hearsay information was reliable or the informant was credible. The sworn facts should be interpreted in a common-sense rather than a hypertechnical manner. Probable cause, however, may not be made out by statements which are purely conclusory, stating only the affiant’s or an informant’s belief that probable cause exists. See Henry v. United States, 361 U. S. 98, 102 (1959); Brinegar v. United States, 338 U. S. 160, 175-176 (1949).

(2) and (3)

The application for the summons to Schaefer was made on 24 January 1974 and attempted to show that there was probable cause that Schaefer committed the misdemeanor proscribed by the Charter of Baltimore City, Art. VII, § 126 (a), which we have set out in note 1, supra. The application was subscribed and sworn to by the Deputy State’s Attorney for Baltimore City before a judge of the District Court. The concise statement of facts to show probable cause that Schaefer violated the Charter provision was this:

. . on or about Sept. 1, 1972 and thence continually until Nov. 2, 1973 at various locations in Baltimore City . . ., John A. Schaefer, while being an elected Baltimore City official, to wit: a City Councilman from the First Councilmanic District, Baltimore City, State of Maryland, encouraged and aided in the formation of Baltimore Wreckers, Inc., a private corporation founded for the purpose of performing demolition work for Baltimore City and actively aided Baltimore Wreckers in the submission of bids of Baltimore Wreckers for Baltimore City demolition contracts by procuring equipment and labor personnel to carry out the Baltimore City demolition work as well as occupying the position of President of Capitol Hauling, Inc., a firm engaged by Baltimore Wreckers as a subcontractor for Baltimore City demolition contracts and thereby received financial and other interests therefrom.
The affiant personally knows the above information to be true because of the personal observation of documents now in the possession of the State’s Attorney’s Office which include articles of incorporation of the aforesaid corporations, mortgage agreement, cancelled checks drawn on accounts of the above corporations payable to the defendant, ledgers and records of account for the above corporations.”

We do not agree with Schaefer’s contentions that the application failed to establish probable cause or that the determination of probable cause was made by the prosecutor, not the judge. The first paragraph of the probable cause statement sets out these facts:

a) Schaefer was a member of the City Council;
b) Schaefer aided in the formation of a corporation founded to do work for Baltimore City;
c) Schaefer assisted the corporation in submitting bids for contracts with Baltimore City by procuring equipment and labor to carry out the contract work;
d) the corporation subcontracted Baltimore City demolition contracts to another corporation of which Schaefer was president;
e) Schaefer thereby received financial and other interests in a contract with Baltimore City.

The second paragraph of the statement showed that the facts came from the applicant himself, a known, named, public figure. He set out the facts under oath, subject to the penalties of perjury. They were known to the affiant because of his personal observation of articles of incorporation of the subject corporations, ledgers and records of accounts for the corporations, and cancelled checks drawn on the corporate accounts payable to Schaefer, all of which were in the possession of the State’s Attorney. This recounting under oath of facts obtained by the personal observation of the affiant was sufficient to establish their trustworthiness in the context of probable cause. There was no question of credibility; no unnamed, unsworn informant was involved. The statement was clearly far more than the prosecutor’s conclusion that Schaefer perpetrated the offense described. It consisted of facts from which a prudent and cautious man would be justified in believing that § 126 (a) of Art. VII of the Charter of Baltimore City was violated by Schaefer. It thus provided a sufficient basis upon which a finding of probable cause could be made. And the finding that there was probable cause was made, as was proper, by a neutral and detached judicial officer. Compare Coolidge v. New Hampshire, 403 U. S. 443, 449-453 (1971); Whiteley v. Warden, 401 U. S. 560, 564-569 (1971). In short,' the application here passed muster because it provided a basis for the judicial officer’s determination under M.D.R. 706 and Courts Art. § 2-607 (c) that probable cause existed. It contained an affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it indicated sources for the affiant’s belief; and it set out facts upon which a finding could be made that Schaefer probably committed the crimes alleged.

We hold that the trial court did not err in denying the motion to dismiss the summons.

Judgment affirmed; costs to be paid by appellant.

       Note: Certiorari denied, Court of Appeals of Maryland, September 14,1976.

      . Section 126 (a) provides, under the heading “BOARD OF ETHICS — Conflicts of Interest”:

      “It shall be unlawful for the Mayor, the Comptroller, the President of the City Council, the members of the City Council, or any other elected official (hereinafter, jointly or severally, referred to as ‘elected official’) of the Mayor and City Council of Baltimore, to have any financial or other private interest, direct or indirect, including but not limited to, the representation of a client as an attorney, in any written or oral contract with the City, or any agency thereof, or in any other transaction, including litigation or legislation, in which the City, or any agency thereof, is or may be in any way concerned, except as hereinafter provided.”
      The exceptions are not here relevant. See § 126 (f) and (g) of Art. VII.

      . Section 127 of Art. VII of the Charter provides the penalty for and consequences of conviction:
      “Any person who knowingly violates any of the provisions of Sections 123 through 128 of this Article VII . . . shall be guilty of a misdemeanor and shall, on conviction thereof, be fined not less than one hundred dollars nor more than five hundred dollars, or be imprisoned in the Baltimore City Jail for a term of not more than twelve months, or both, in the discretion of the Court; and, in addition, in any case where any officer, employee or agent hereinbefore mentioned, is involved, it shall be obligatory on the Mayor or the employing agency, as the case may be, following such conviction, to dismiss immediately such convicted person from his office or position; and, in addition, in the ease where any elected official is convicted as aforesaid, the duties, powers and authority vested in such convicted official by law shall terminate in their entirety as of the day of conviction and the office formerly held by such convicted official thereafter shall be filled in the same manner as though such official had died while holding office.”

      . The record before us shows that when Schaefer was arraigned in the Criminal Court of Baltimore on 12 May 1975, he made an oral motion before pleading to dismiss the summons. The motion was heard and denied for reasons stated in an oral opinion by the Court.
      The District Court had original exclusive jurisdiction of the case. Courts Art. § 4-301. Schaefer says in his brief, n. 1, p. 8, that he had filed a written motion in the District Court to dismiss the summons. The District Court was deprived of jurisdiction when Schaefer demanded a jury trial, Courts Art. § 4-302 (d), but the motion was not transmitted with the record when the case was transferred to the Criminal Court of Baltimore.

      . Under the Maryland Rules applicable to the circuit courts, including the Criminal Court of Baltimore, “indictment” includes “a grand jury indictment, a criminal information and a charging document as defined in Maryland District Rule 702 ____” Rule 702, § a. Trial for a criminal offense shall be held only on indictment as so defined. Rule 703.

      . We do not imply by our holding that such motion would have been proper had probable cause not been established. We do not reach the question whether a defendant may be tried upon an arrest warrant or summons issued on less than probable cause shown in the application. Neither statute nor rule of this jurisdiction prohibits the trial of the defendant under an arrest warrant or summons to a defendant which is issued without probable cause. We do not now decide whether proper sanctions would, in any event, extend beyond evidentiary exclusions and detention prohibitions. See Giordenello v. United States, supra, 485-487; Gerstein v. Pugh, 420 U. S. 103 (1975). Of course, no detention of the accused occurs when the charging document is a summons. As there is no arrest, there could be no search and seizure incident thereto. And there is otherwise no power to seize property under the authority of a summons.
      In the case sub j'lidice there is no question presented as to an illegal detention of Schaefer or an unreasonable search and seizure of any property.


author: Lowe, J.,

text:
    HENRY T. ARRINGTON et al. v. CHARLES EDWARD MOORE
    [No. 958,
    September Term, 1975.]

      Decided May 7, 1976.

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

      James E. Faunon, Jr. for appellant, Henry T. Arrington. Patrick A. O'Doherty for other appellants.

      Victor A. HouJon, with whom wove Robert J. Cerullo and Pickett, HouJon & Berman on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

We are asked to determine at what point the exercise of authority by a presiding officer at a public meeting may cause him to become civilly liable. We must also determine when an arresting officer may be so exposed to liability. The community in which the circumstances giving rise to this case occurred carries the delightful name of “Seat Pleasant.” To the Mayor, Henry T. Arrington, the seat occupied by him, while chairing the town meeting in question was anything but that. Meetings of the Mayor and Council of Seat Pleasant are held bimonthly. Alternate meetings are open to public attendance and participation. All of the meetings are presided over by the Mayor.

Suit was filed in the Circuit Court for Prince George’s County by Charles Edward Moore, the Town Manager, against Mayor Arrington, as well as Chief of Police Roy Burke and Deputy Charles L. Owens, for assault, battery and false arrest. The testimony at trial revealed the heated political divisiveness within the community which led to the incident at bar. This divisiveness was exemplified by the meeting of the Mayor and Council preceding the one at issue. After persistent interruptions, the Mayor abruptly adjourned that meeting, and then seemingly felt it necessary to draw a pistol when going to his car in an adjacent parking lot in the presence of some protesting townspeople.

At the next meeting after the pistol wielding incident, held on August 16, 1973, there was expected even greater and more vociferous public participation. The anticipated public participation was viewed with some trepidation because a printed “flyer” entitled “SEAT PLEASANT MURDERERS” had been disseminated exhorting townspeople to attend the August 16th meeting. Among other charges made by the flyer (which we attach as Appendix No. 1) was that of governmental overspending including “ . .. full-time pay of a part-time manager.” The meeting room was thus prepared for substantial attendance by the public and news media. Chief of Police Burke was alerted by the Mayor to have a sufficient number of officers present to maintain order. A total of seven (including himself) was present, most of whom were inconspicuously clothed.

The testimony in the case indicated that the Mayor had generally conducted meetings “with some parliamentary procedure” although he deviated from “parliamentary procedure and Robert’s Rules ... to allow people an opportunity ... to voice their opinions.” In short, it appears that the meetings were generally informal, with the degree of procedural adherence dictated by the circumstances of the particular meeting.

The air was so charged with political cordite at the meeting of August 16, 1973, that as a precaution, in addition to added police security provided, a section of law was prefatorily read to the assembled throng. The Mayor described the preparations.

“We opened the meeting by reading a section of the Code, the Annotated Code of the State of Maryland, which indicated that it was a violation of the law to disrupt a public meeting. After having read that, I stated to the public that the meeting would be held with dignity and decorum, that everyone would be allowed to speak, that we had no intentions of suppressing anyone’s opinions. But that it would be done in an orderly fashion, and that I would attempt to recognize people in the order in which their hands were raised.”

A Councilman Gallion was then recognized by the Mayor and he took the floor to denounce the political flyer that had been publicly circulated. In doing so he read from the flyer, and when he reached that portion critical of the town manager, appellee Moore rose from his seat to the right rear of the Mayor and approached him. The testimony differs as to his manner of seeking the Mayor’s attention, but Moore clearly stated his purpose in doing so.

“BY MR. HOULON:

Q. What if anything next did you do after you got up?
A. I walked where I could make sure he would hear me.
Q. Am I standing approximately where you were?
A. I’d say back a bit. About two feet, probably.
Q. Here?
A. Right, and then —
Q. Then what did you do? Tell me.
A. I put my hand on the table.
Q. Your hand?
A. Right. That is a habit of mine, of talking with my hand and doing things. I wanted to make darned sure that he heard what I had to say.
Q. What did you say?
A. ‘Am I a part-time manager?’
Q. And in what tone of voice did you use?
A. The same as I just said now. ‘Am I a part-time manager?’
Q. How many times did you say it, if any?
A. I asked him that five times.
Q. Five times?
A. Yes. Five times, but on three times he said, ‘Take a seat, Mr. Moore,’ and on the fourth time he said, ‘Get him out of here.’
Q. When he said, ‘Get him out of here,’ could you tell who he was speaking to?
A. No. I couldn’t. But I assumed that he meant Chief Burke because he came in the space between you and the man, now, between the two of us. And he put his hand on my chest, so I pushed him back.”

It is undisputed that Chief Burke came forward, placed himself between appellee and Mayor Arrington, and put his hands on appellee’s chest:

“Q; When Chief Burke came up to you, he put his hand on you?
A. Both hands, yes.
Q: Tell the jury what happened next.
A. Well, I did not mean to disobey the law at all, but for me to ask a question where I’m being accused of being a part-time manager, which is wrong, and then not to receive an answer but to be told — but to hear him say, ‘Get him out of here,’ deep- in my own heart I felt I should get an answer then.
So I waited. And Chief Burke pushed me and by being an ex-Army man, I immediately, my hand came up to defend myself. And we had a bit of a shuffle there until all of a sudden one officer grabbed my hand. And then the Chief had the other hand and all of a sudden I felt an arm around my neck.”

Mr. Moore testified that he not only knew the Chief, but that they were on good terms, although the manager’s own description of the “shuffle” belies that relationship.

“Q. And tell the jury what you did to the police officer? How you resisted? Tell them what you did to him. You took his coat, what did you do?
A. Pulled it over his head.
Q. You pulled the coat over his head? What did you do to him then?
A. Just held him until I was choked.
Q. Didn’t he go down?
A. He went down on one knee.
Q. Your hands were on him when he went down?
A. I couldn’t turn him loose because I had him there.
Q. Okay. You had him. And you had his coat over his head and you had him down on one knee? Is that correct?
A. I didn’t have it — him down. He went down on one knee.
Q. He went down on one knee, but you had your hands on him?
A. I didn’t push him down.”

Notwithstanding the fact that Councilman Gallion had not yielded the floor, nor had the Mayor (whom he acknowledged was Chairman of the meeting) recognized him, Town Manager Moore felt that the time was appropriate to demand an answer to his question from the Mayor.

“Q. You knew what the law was, that you were not to disrupt the meeting? It had been read out and you heard it well. Then why did you go over and insist that at that time before the television cameras and before everybody else, and while the Councilman was on the floor, why did you insist then that he was going to have to answer you then?
A. Because I felt that that was the time I should have been answered. Without disrupting the meeting.”

Even when the police chief intervened, Manager Moore continued to insist that he had a right to be heard at that moment.

“Q. Well, what were you doing when the police officer was moving you back? Didn’t you just — did you move back out of the way? Or did you resist it?
A. Has it ever occurred to you that I was top man? I shouldn’t have been manhandled by a police chief?
Q. He just had his hand on your chest?
A. With the instructions to, ‘Get him out of here.’
Q. Then you persisted, didn’t you? You figured you were the Town Manager?
A. I figured I knew I was.”

Deputy Owens and another „ officer, seeing their Chief apparently overcome, subdued the manager, first by an arm lock around the neck from behind, then with handcuffs, after which he was removed from the building.

The news media duly recorded these events and a film taken by a television station was shown the jury. In addition, two sets of photographs were admitted as evidence, one set introduced by appellants and the other by appellee. We have appended them as Appendices No. 2 and 3 respectively.

After consulting the State’s Attorney of Prince George’s County, Chief Burke and Deputy Owens charged Mr. Moore with violation of Md. Code, Art. 27, § 577A (2) — refusing to leave a public building upon request. After some postponement, the case was submitted to the District Court Judge, by agreement, solely upon the viewing of the televised film clip. Mr. Moore was found not guilty. His legal fees and other costs totalled $1150.00. Thereafter, Mr. Moore sued the Mayor, the Chief of Police and Deputy Owens for assault and battery, false arrest, and libel, praying $3,000,000 on each count. This appeal is from a verdict of $4500 awarded Moore as compensatory damages for assault and battery and false arrest.

Several issues are raised on appeal relating to the immunity of public officers, sufficiency of the evidence, and the propriety of the judge’s supplemental damage instructions. We find it necessary to address only the immunity issue.

Immunity of Public Officers

The protection of public officers from liability for actions taken as part of their official duties is recognized in Maryland. As the Court of Appeals has stated:

“In Maryland governmental immunity is extended to all nonmalicious acts of public officials as opposed to public employees when acting in a discretionary as opposed to ministerial capacity.” (Emphasis partially added). Duncan v. Koustenis, 260 Md. 98, 104.

Therefore, no liability may be imposed against appellants if they were public officers acting in a discretionary capacity, and their actions were without malice towards Moore.

The tests to be applied in determining whether one is a “public officer” so as to be protected by governmental immunity were summarized in Duncan, supra:

“There are many Maryland cases dealing with the delineation of the public official concept and the following tests have been set forth: ‘[I]s he required to take an official oath; is he issued a commission; is a bond required; is the position called an office; is the position one of dignity and importance; does the public servant exercise in his own right some of the sovereign powers of government for the benefit of the public; does he have a fixed tenure?’ Gary v. Board of Trustees, 223 Md. 446, 449, 165 A. 2d 475 (1960).” 260 Md. at 105.

The appellants in this case are unquestionably public officials. Appellant Arrington was the elected Mayor of Seat Pleasant and was vested with the duty to carry out the governmental functions of that municipal corporation. See Walker v. D’Alesandro, 212 Md. 163, 170. Appellants Burke and Owens were Chief and Deputy Chief of Police, respectively, and it is clear that policemen are public officials. Robinson v. Bd. of County Comm’rs, 262 Md. 342, 347; Harris v. Baltimore, 151 Md. 11.

We must then determine, viewing the evidence in the light most favorable to appellee, 1) whether the appellants were acting within their discretionary capacities arid 2) whether there was evidence that their conduct was motivated by actual malice, so as to remove their actions from the protection of governmental immunity.

Discretionary Capacities

The evidence adduced clearly indicated that the Mayor of Seat Pleasant was the presiding officer at all the meetings of the Common Council. See also Public Local Laws of Prince George’s County, § 68-12. Inherent in that responsibility is the authority to maintain order. McQuillin, in his treatise, The Law of Municipal Corporations, states that “[i]t is always the duty of the presiding officer [at council meetings] to enforce the law or rules applicable to the body, keep order, and follow the course of the proceedings.” § 13.21 (3d ed. by Jerome H. Dray).

A case based upon remarkably similar facts was decided in 1837 by the Supreme Court of New York in Parsons & Hall v. Brainard, 17 Wend. 522. There, Parsons, the justice of the peace, was presiding, with two other justices, at a town meeting at which Brainard was elected to the office of “hog-howard.” Brainard thereupon nominated Parsons as “hog-howard’s waiter,” producing “noise, laughter and confusion.” Parsons then directed the constable in attendance, Hall, to remove Brainard from the meeting. Brainard subsequently sued Parsons and Hall for assault, battery and false imprisonment and Parsons and Hall appealed from the judgment of a jury holding them liable to Brainard. The Court reversed the judgment below, stating:

“By the statute, the justices are to preside at the town meeting, and see that the same is orderly and regularly conducted. . . . They have full authority to maintain regularity and order, and to enforce obedience to their lawful commands. . . . The case called for a prompt exercise of their authority, and I can perceive no objection in principle to the manner in which it was exercised. . . . [T]he means of maintaining order are left to the discretion of the presiding officers.” At 523-524.

See also Doggett v. Hooper, 27 N.E.2d 737 (Mass.) wherein the Supreme Court of Massachusetts upheld the right of the moderator at a town meeting to order the removal of one who persists in disorderly behavior.

In short, it would be absurd to say that an official charged with the responsibility of presiding over a public body has no discretion or implied authority to maintain the order and dignity becoming that body. Cf. Williams and Fulwood v. Director, 276 Md. 272, 304; Restivo v. Princeton Constr. Co., 223 Md. 516, 525.

The evidence indicated that Mayor Arrington sought to conduct the meetings formally enough to maintain respect for the dignity of the Common Council and himself as Mayor, but informally enough to comport with the atmosphere of a relatively small community. He denied that those in attendance at public meetings were ever allowed to speak out without being formally recognized.

“Q. . . . How many meetings had you conducted of the Council prior to this one?
A. I had conducted all the meetings, sir.
Q. Did you run them as Mr. Somerville and Mrs. Radivo and Mrs. Jones and Mr. Moore testified, sometimes under formal rules and sometimes under whatever rules you preferred?
A. No, sir. I did not.
Q. You always ran them according to Robert’s Rules of Order?
A. No, sir. I did not.
Q. You always ran them pursuant to the set of parliamentary procedure rules?
A. I always ran them with some parliamentary procedure and the deviation from parliamentary procedure and Robert’s Rules was to allow people an opportunity as I explained earlier to voice their opinions.
In fact, there have been times when both the lady who testified and Mr. Somerville have had something they wanted to get off their chest and I have allowed them five to ten minutes to take the floor and let them steam off. This is a policy we have had in the town. There have been people who have come to the meetings and completely dominated it. I have permitted this so that I would not be accused of suppressing freedom of speech. And I think that —
Q. So you have, in fact, varied from parliamentary procedure, Robert’s Rules of Order
A. Yes, particularly with those people who were prone to criticize my administration.
Q. Then it would be nothing unusual for somebody to speak out without being formally recognized by the chair?
A. No, sir. I always recognized them. If I did not recognize them, there have been occasions when people have gotten up to speak and they have talked for maybe three or four minutes. After me recognizing them, then they’ll ask to talk again. I have recognized them and on a third time I have told them that they have spoken. They have dominated the meeting. And I would not recognize them.
They have insisted on being recognized. I said, and I think that Mr. Moore can attest to this, I have said to them that, ‘Listen, you spoke. Somebody has to talk, and I will not recognize you. Will you please be seated?’
They have told me they would not sit down, that they were taxpayers and they would not sit down. And I said that the meeting would not proceed until we maintained some order and they said, ‘Well, I’m not going to sit down. I’m a taxpayer. You can’t stop me from talking. I’m going to talk all night if I want to.’ And as a result of that kind of behavior, we had another person who disrupted the meeting just as the Plaintiff here did who went to the District Court and was put on the stet docket for the same thing after me pleading with her for five minutes to sit down. So I have been very patient. And I have been very understanding in conducting my meetings.
I have not tried to run a dictatorial type town meeting at all, and if that is the implication that you are making, I think it is unfair.”

However, when such leniency was abused, the Mayor did not hesitate to exercise his responsibility to maintain the dignity of the meeting:

“Q. Have you ever in conducting any of the town meetings that you have conducted had anybody speak out without being recognized by the Mayor?
A. Yes, sir. And I had them arrested.
Q. Thank you. Has anybody ever spoken out and not been arrested?
A. Yes, sir.
Q. So it depends on whether you feel like having him arrested?
A. No, sir. It depends on how long they speak out.
Q. Who determines how long is how long, you?
A. Well, since I’m responsible for conducting the meeting, I would assume that it would be me.”

The Mayor had also used other methods to keep the peace at previous meetings. On at least one occasion, when he felt he was losing control of the proceedings, he simply terminated the meeting. It is clearly within the discretionary capacity of a presiding officer of a public body to insist upon the orderly recognition of speakers, and to make quick judgments as to what method to use to maintain order at emotionally charged meetings.

As to the Chief of Police and his deputy, we will judicially notice that their office charges them with the responsibility of preserving the peace. The evidence shows that they were ordered by the Mayor to be present at the meeting for that purpose in anticipation of problems which might arise in the heat of public debate in the politically tense atmosphere. It is surely within an officer’s discretionary capacity to intervene between two persons in close proximity with each other and who are by all appearances intensely at odds. This is particularly true under the circumstances of an emotionally charged public meeting when the subject of controversy appears about to accost the presiding officer. When, upon instruction of the presiding officer, Moore refused to return to the place he had assigned himself, the Mayor did not exceed his discretion by ordering his removal; nor did the Chief of Police exceed his, by intervening between the two and placing his hands upon the chest of the offending party.

By his own admission, Mr. Moore then precipitated any further force by his own physical resistence. He testified that he was so affronted that the chief would “manhandle” him, the town manager, that he pulled the police chiefs coat over his head; causing the chief to fall to his knee. Upon seeing a fellow officer in apparent distress, Deputy Owens precipitously rushed to his chiefs aid and “collared” appellee with a neck hold in order to subdue him. Under these circumstances, we cannot find that such action was beyond a law enforcement officer’s discretion.

The enforcement of law is best carried out when crime or violence is prevented, not merely when a perpetrator is permitted to act and then is apprehended. If law enforcement officers are compelled to keep the peace at their peril, without some discretion as to how to respond to an apparent crisis, the peace will simply not be kept. Violators may be subsequently apprehended but persons and property may well suffer for the delay. The testimony of Mr. Moore and the photographs he introduced vividly exhibit that disorder was imminent. Officers must not be forced to hesitate until a blow is struck or a shot is fired when protecting the lives and property of public officials. In 1871 the Court of Appeals held that public officials (i.e., an elections judge) could not be held legally responsible for anything more than an honest and faithful exercise of judgment,

“ . . . and are not liable for the consequences of mistakes honestly made, but are liable, both civilly and criminally, for a wrong which they wilfully, fraudulently or corruptly perpetrate.” Friend v. Hamill, 34 Md. 298, 304.

We see no abuse in the discretionary exercise of authority by any of the appellants.

Malice

Appellee contends that because he was ultimately found not guilty of the only charge against him, refusing to leave a public building upon request, all that went before and all that came after was presumptively malicious. We do not agree. If there existed probable cause to arrest appellee upon any reasonable ground, the fact that each element of the particular crime with which appellee was later charged was not proved, does not automatically prove malice.

The Court of Appeals, in a case involving a suit against a police officer for malicious prosecution, recently acknowledged in Brewer v. Mele, 267 Md. 437, 445, that it had:

“ . . . never been called upon to decide that quality of malice or the means of its proof necessary to forestall governmental immunity.”

The Court went on to imply that malice might be “some affirmative showing of ill will, improper motivation, or evil purpose . . .”, on the one hand, or simply a “mere inference of malice permitted to be drawn from the want of probable cause . . .” on the other. The Court pointed to the illogic of the latter course “which is no immunity at all, but a defense upon the merits,” id. at 446. Under either test, the appellee here failed to pull back the cloak of immunity from the appellants. Appellee persisted in violating the decorum of a public meeting, with conduct approaching, if not amounting to, disturbing the peace at a public place, Md. Code, Art. 27, § 122. He cannot now protest that such conduct did not provide probable cause for his arrest and/or his precipitous removal from the hall.

Since these facts fall well outside either of the extremes proposed for proof of malice provided us by the Court of Appeals in Brewer v. Mele, supra, we have no cause to provide a narrower definition of malice. It will suffice to note here only that the Court of Appeals has sufficiently guided us in defining malice for other purposes:

“Actual or express malice — at least in this context — has been characterized as the performance of an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.” H & R Block, Inc. v. Testerman, 275 Md. 36, 43. See also cases cited therein.

The actions of the public officials here did not approach that extreme. There was no evidence of any evil or rancorous motive influenced by hate and certainly nothing to show a deliberate and willful injury. Beyond that, there was no evidence that the actions taken by appellants were without legal justification. Nor was there a hint of evidence of actual malice in the sense of ill will, improper motivation or evil purpose as noted in Brewer v. Mele, supra. Never did appellee’s evidence attribute any such motives to the Mayor. To the contrary, he testified that he worked with the Mayor and Council and that, because he was employed full time by the federal government in the evenings, the Mayor had taken over some of his duties so that they were fully performed. As to the other two appellants, he stated that he knew of no reason for their conduct. Indeed, he had been, and still considered himself to be, a friend of Chief Burke.

The basis of the immunity of public officials from tort liability is that a public purpose is served by according that protection to the exercise of official discretion. Walker v. D'Alesandro, 212 Md. at 169. The maintenance of order and public peace often, as here, calls for decisiveness and precipitous action. To demand of all public officials under circumstances of apparent crisis the reflection and deliberation allowed an appellate judge may well leave disaster in its wake.

Judgment reversed.

Costs to be paid by appellee.

THE TOWN OF SEAT PLEASANT IS BEING KILLED. YOUR TOWN, BY A SMALL GROUP OF NARROW MINDED, POWER HUNGRY, UNINFORMED AND SEEMINGLY UNCONCERNED INDIVIDUALS.

O STOP THE EXPLOITATION OF YOUR CHILDREN

© STOP PAYING FOR THE UNAUTHORIZED LEAVES AND VACATIONS OF ELECTED COUNCILMEN AND EMPLOYEES WITH YOUR TAX DOLLARS

O STOP THE SPENDING OF YOUR MONEY BY PEOPLE WHO DON'T HAVE THE AUTHORIZATION

O STOP THE FULL-TIME PAY OF A PART-TIME MANAGER

IF YOU DON'T LIKE IT, AND DON'T WANT IT, IF YOU WANT IT STOPPED.......

GET UP OFF OF YOUR ASPIRATION AND BE AT...... TOWN HALL THURSDAY, AUGUST 16,1373 S-'OO PJV?.

      . The council were seated in an inverted horseshoe arrangement with the public at the head and Mayor at the toe. The manager did not sit with the spectators, nor with the councilmen, but was seated behind and to the right of the presiding officer.

      . Although there is some indication that in some jurisdictions immunity from civil liability exists even if the officer acted with malice (at least as to judicial officers and inferentially to other public officials, see Annotation, 173 A.L.R. 802; 13 A.L.R. 1344), in Maryland it is clear that public officials acting within their discretionary capacity enjoy immunity only if they act without malice. Robinson v. Bd. of County Comm’rs, 262 Md. 342, 347; Duncan v. Koustenis, 260 Md. 98, 104; Eliason v. Funk, 233 Md. 351, 356; Carr v. Watkins, 227 Md. 578, 585.

      . “ ... (whose duty it seems was understood to be, to catch hogs running at large and put rings in their noses.)” Parsons & Hall v. Brainard, supra, at 522.

      . This procedure is described in Jefferson’s Manual, § 354.
      “When any Member means to speak, he is to stand up in his place, uncovered, and to address himself, not to the House, or any particular Member, but to the Speaker, who calls him by his name, that the House may take notice who it is that speaks.... But Members who are indisposed may be indulged to speak sitting.” (Emphasis added).

      .
      “As Town Manager I was responsible for having the room prepared for the meeting and I had checked the public address systems, getting everything in line for the meeting. And I was getting everything prepared so that once the people began to come in it would be prepared for the meeting.”

      . Appellee testified that he knew of the potential for disruptions in the meeting saying “ ... there was so much chaos in that town at that time, I wouldn’t be surprised about anything.”

      . Appellee argued on motion for directed verdict:
      “MR. HOULON: As the Court can, I think, clearly see from the testimony thus far, and, of course, I’m sure the Court is cognizant that you must consider these motions being made by the Defendants in the light most favorable to the Plaintiff, Mr. Moore.
      Even with that burden or that test in effect at this posture on motions for directed verdicts, this man was not taken up because he walked over to the Mayor, because he asked a question without being recognized by the floor, because he acted in a disorderly manner. This man as a matter of record and as a matter of evidence in this case was taken up because he refused to leave a building when requested to do so. The testimony is clear, uncontradicted, uncontroverted, that he was never asked to leave that room, never asked to leave that building, that the Mayor said ‘Get him out of here.’
      He never told him you must leave this building. He just said, ‘Get him out of here.’ The police officer came, swept him up and took him out.
      Now, that is the crux of the case. He had people lay their hands upon him without his permission or consent. He was arrested because he did not leave the room, but he was not asked to do so. And that is the Plaintiffs case, because the Statute that these Defendants charged him under requires that one must be asked to leave the room or leave the building before this charge would lie. That is exactly why he was found not guilty in the District Court. Because they had not requested him to leave the room.
      Now, if they didn’t request him to leave the room, then what they did to him was totally without legal justification and if they do something to him without legal justification, that is malice, per se. That is like a police officer that is just like Chief Burke comes over to me right now accusing me of possessing a firearm and arresting me. He’s maybe putting his hand on me in the furtherance of that arrest. He’s arresting me and he’s doing so upon something that he has absolutely no legal justification for. And that is exactly analogous to this situation.
      The crime that this man was arrested for, the crime that they laid their hands upon him for, was failure to not leave a public building when requested to do so. And the case thus far at this point in the testimony is just as I said, uncontroverted that he was not asked to leave the building, and therefore, Mayor Arrington when he told Chief Burke and the other officers to get him out of here, was clearly acting out of line and therefore maliciously because he had no legal justification and so did Owens and Burke, because they were simply the agents of the Mayor.”

      . “[T]he rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion.” Edwardsen v. State, 243 Md. 131, 136.

      . It is also significant here that although appellee at this juncture claims language in his declaration suffices to allege malicious prosecution, no instruction was given nor asked to be given to the jury for that tort. We confine our opinion to the concepts relied upon by all parties throughout, i.e., false arrest, assault and battery.

      . Although the dicta in Brewer, supra, refers to the tort of malicious prosecution, we find it applicable as well to the tort of false arrest.


text:
    GORDON LEE RICHARDSON v. DIRECTOR, PATUXENT INSTITUTION
    [No. 982,
    September Term, 1975.]

      Decided May 7, 1976.

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

      Arthur E. Leitch, Jr., Assigned Public Defender, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur Á. Marshall, Jr., State’s Attorney for Prince George’s County and Laurence Bowe, Assistant State’s Attorney for Prince George’s County on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Gordon Lee Richardson, appellant, was adjudged by Judge Robert B. Mathias, at a non-jury trial in the Circuit Court for Prince George’s County, to be a defective delinquent within the meaning of Md. Ann. Code art. 31B, § 5. We granted appellant leave to appeal, and the matter was transferred to the regular docket.

In this Court, appellant contends that the trial court committed reversible error:

I. “. . . by overruling the appellant’s exceptions to appellee’s failure to answer certain interrogatories.”
II. “. . . when it admitted the diagnostic staff report without proof that said report was the unanimous or majority opinion of the staff that evaluated appellant.”
III. “. . . in allowing the State’s only witness, a psychologist, to testify to a ‘reasonable medical certainty’ that the appellant was a defective delinquent.”

I.

A defective delinquency proceeding is a civil proceeding, Kisselovich v. Director, 30 Md. App. 293, 356 A. 2d 293 (1976); Bush v. Director, 22 Md. App. 353, 324 A. 2d 162 (1974); see also Austin v. Director, 245 Md. 206, 225 A. 2d 466 (1967); Mastromarino v. Director, 244 Md. 645, 224 A. 2d 674 (1966); Director v. Daniels, 243 Md. 16, 221 A. 2d 397 (1966); and the rules of discovery are generally applicable thereto. McCloskey v. Director, 245 Md. 497, 226 A. 2d 534 (1967); Director v. Daniels, supra. The case law of this State makes it manifest, in a defective delinquency proceeding, unlike other civil cases, that the State’s Attorney who represents the State and, hence, Patuxent Institution, is not under a duty to answer interrogatories if the information sought is obtainable by an examination of the Patuxent records on the particular alleged defective delinquent. Gray v. Director, 245 Md. 80, 224 A. 2d 879 (1966); Walker v. Director, 6 Md. App. 206, 250 A. 2d 900 (1969). Moreover, the General Assembly has statutorily authorized counsel’s access to the records of Patuxent. Md. Ann. Code art. 31B, § 8 (b), provides in pertinent part:

“ . . . Counsel for the person and for the State shall have access to all records, reports and papers of the institution relating to the person, and to all papers, in the possession of the court bearing upon the person’s case, including a copy of the report of the institution.”

In the case sub judice, the appellant filed thirty (30) numbered interrogatories directed to the State of Maryland which were served on the State’s Attorney for Prince George’s County. The State excepted to all but one of the interrogatories and the appellant, in turn, took issue with the State’s refusal to answer. Hearings on appellant’s exceptions were held before Judge Mathias, who sustained the State’s position. Appellant asserts to us that the judge’s failure to require the State to answer thirteen of the interrogatories is patent error. We, however, have a different outlook. As we see it, the answers to the thirteen questions may have been contained within the appellant’s records as maintained at the institution, and, thus, under Gray, Walker, and Md. Ann. Code art. 31B, § 8 (b), the information may have been available to appellant for his examination.

The transcripts of the hearings held concerning the exceptions to the interrogatories indicate that appellant’s attorney did examine the appellant’s records at Patuxent, but did not thoroughly copy them. The reason he did not do so is not delineated. We infer from the discussions among the judge and both counsel at the hearings that appellant endeavored, through the interrogatories, to place the burden, i.e., cost, time, and effort, of copying the records, on the State’s Attorney’s office rather than on the defense.

We further note that at the hearings, and in appellant’s brief, it is asserted that some information sought per the interrogatories was not in the Patuxent records at least at the time he saw them. There was no showing that counsel inquired at Patuxent about any additional information, or that the institution itself had any information not disclosed to him, except the report of an examiner which was subsequently added to the file. In fact, appellant’s counsel conceded that he had read the Patuxent records quite some time before the hearing, and he could not recall whether some of the desired information was within the records that he saw. The difficulty with a hearing on exceptions in such a situation, as in the case now before us, is that the hearing judge was placed in the position of not knowing what information could be gleaned from an examination of the institutional records. Thus, he must rely upon the representation either of the defense counsel, or the State, unless the judge orders the production of the records for his own perusal. The latter course could result in virtual strangulation of the court’s productivity and, simultaneously, shift to the judge the burden that Md. Ann. Code art. 31B, § 8 (b), Gray and Walker, removed from the State’s Attorney’s shoulders.

Because an alleged defective delinquent must exhaust the special statutory right given to him by Code art. 31B, § 8 (b), before other civil discovery procedures are fully available to him, we believe that the proper approach by a trial judge, one which satisfies the discovery rules, as well as due process, and at the same time is in keeping with Gray and Walker, may be stated thusly:

If the counsel for the alleged defective delinquent certifies to the hearing judge that the information sought by way of interrogatories (Md. Rule 417) has been specifically requested from the institution, but has not been made available to him in the institutional reports, ¡records, and papers, the court should order the State to answer the questions propounded, provided of course, the questions are otherwise proper. If the State, on the other hand, believes that it is able to demonstrate that the sought information is indeed available from an examination of the Patuxent reports, records, and papers, it may except to the interrogatories, and the dispute would then have to be resolved by the court.

We repeat what the Court of Appeals stated succinctly in Director v. Daniels, 243 Md. at 44, 221 A. 2d at 413, and reiterated in McCloskey v. Director, 245 Md. at 505, 226 A. 2d at 539:

“. .. [A defendant in a defective delinquency proceeding] has available to him all discovery procedure permitted under the Maryland Rules in civil cases, which is much broader than in criminal cases, including the taking of depositions, the use of interrogatories and the demands for admissions of facts.”

In other words, a defendant in a defective delinquency case, who believes that his defense warrants the obtaining of information beyond that revealed by an examination of the institutional records, reports, and papers, may invoke the same plenary discovery rule usage that is available to other civil litigants.

We are not, however, to be understood as holding that all the copious means of discovery permitted by the rules of procedure are automatically triggered and allowed in each case. As in other types of civil litigation, when it is apparent to the trial court that discovery is being utilized for the purpose of harassing or is oppressive, as by the placing of almost insurmountable roadblocks in the path of the State, the court may, pursuant to Rule 406 and Rule 422 a 3, pass a protective order employing one or more of the alternatives sanctioned by Rule 406. See Stein v. Overlook Joint Venture, 246 Md. 75, 227 A. 2d 226 (1967).

In the instant case, the only thing before Judge Mathias was the bare statement of appellant’s counsel that the information requested by way of written interrogatories was not available from a review of Patuxent’s records. The bare statement will not suffice. Judge Mathias properly overruled the appellant’s exceptions to the State’s declination to answer the interrogatories.

II.

The Diagnostic Staff Report that was submitted to the court in accordance with Md. Ann. Code art. 31B, § 7 (a) was signed, as required by the same statutory section, by a medical physician, a psychiatrist, and a psychologist. The report read:

“This patient and his records were presented at the staff conference on November 26, 1974, where he was interviewed. It was felt that he was an intellectually dull emotionally unstable person, who easily looses [sic] control of himself in stressful situations. He appears to be impulsive with an underlying hostility and aggressiveness which renders him to be a distinct danger to society and has shown persistent, aggravated antisocial behavior with a propensity toward criminal activity. Consequently, he fulfills the criteria for being a Defective Delinquent and his commitment to Patuxent Institution is recommended.”

When the staff psychologist who had signed the report testified at the defective delinquency hearing, he said that there were present at the staff conference, “ .. . Dr. Tasony [a psychiatrist], myself, the examining social worker, and several other psychologists and psychiatrists, I don’t remember who at this point.” Subsequently, he expanded the list of persons present so as to include Dr. Sarongon, the medical physician who signed the report. On cross-examination, the psychologist said that there was a total of “ .. . six to twelve, somewhere in that area,” who were in attendance at the staff conference. Appellant argues that the report from Patuxent was improperly admitted because it was not demonstrated that the report was that of the opinion of the majority of those present when appellant appeared before the staff.

Md. Ann. Code art. 31B, § 7 (a), provides, in pertinent part:

“Any such examination shall be made by at least three persons on behalf of the institution for defective delinquents, one of whom shall be a medical physician, one a psychiatrist, and one a psychologist. They shall assemble all pertinent information about the person to be examined, before proceeding therewith, including a complete statement of the crime for which he has been sentenced, the circumstances of such crime, the court in which he was sentenced, the nature of the sentence, copies of any probation or other reports which may have been made about him, and reports as to his social, physical, mental and psychiatric condition and history. On the basis of all the assembled information, plus their own personal examination and study of the said person, they shall determine whether in their opinion, or in the opinion of a majority of them, the said person is or is not a defective delinquent. . . .”

Appellant contends that while the statute requires “at least three persons” to examine the alleged defective delinquent on behalf of the institution, that when more than three perform the task a majority of those so acting must execute the report. One need not be an Einstein to be aware of the fact that three is not a majority of either six or twelve.

The statute mandates only that at least three persons, each with expertise in a separate specified field, examine the person referred by the court in order to determine whether the person is a defective delinquent within the ambit of Md. Ann. Code art. 31B, § 5. The legislation does not necessitate that more than the three persons of specified disciplines examine the person. Two of the three must agree, so that a majority point of view is reported to the court.

Cross-examination, in addition to a review of the institutional records, and other discovery methods, assures the appellant adequate protection from the admission into evidence of a report which constitutes a finding and recommendation of less than a majority of those participating in the evaluation. Our perusal of the record before us fails to reveal that appellant utilized any of the enumerated methods in order to ascertain whether the majority of those present at the staff conference concurred in the result. We note that in the instant case the staff psychologist was not asked by the State or the defense whether the majority concurred in the conclusion that appellant was a defective delinquent. Moreover, the letter of transmittal accompanying the Diagnostic Staff Report states flatly that the report, “is the opinion of the staff of this institution.” “[T]he opinion of the staff,” of necessity, represents a majority and, therefore, complies fully with the statute.

III.

Applicant also sees error in the trial court’s allowing the staff psychologist to testify, over objection, that “ . . . within a reasonable degree of medical certainty ...” the appellant met the definition of a defective delinquent. At the trial, the appellant advanced the theory that the witness, a psychologist, could not state an opinion grounded on a degree of medieal certainty.

Chief Judge Murphy, for this Court, in Sherrill v. State, 14 Md. App. 146, 158, 286 A. 2d 528, 534-35 (1972), strongly implied that a psychologist was not qualified to answer a question calling for a medical diagnosis, and that such an answer must be provided by a medically trained person in order to be admissible in evidence. See also Spann v. Bees, 23 Md. App. 313, 327 A. 2d 801 (1974); Saul v. State, 6 Md. App. 540, 549, 252 A. 2d 282, 286 (1969).

A psychologist is “[a] person trained to perform psychological analysis, therapy, or research,” ie., in the sciences of mental processes and behavior. The American Heritage Dictionary (1975): A psychiatrist, on the other hand, is “[a] licensed physician specially trained to practice psychiatry,” i.e., the medical study, diagnosis, treatment, and prevention of mental diseases and disorders. The American Heritage Dictionary (1975); Webster’s New Int’l Dictionary (2d ed. 1947). Both professionals focus on the psyche, yet each profession may analyze the mental problems from different vantage points.

While it is incorrect to pose a question based on “medical certainty” to a psychologist, we observe no reversible error under the circumstances of this case. The Staff Diagnostic Report, signed by a medical physician, by a psychiatrist, and by the witness, a psychologist, concluding that the appellant was a defective delinquent was in evidence. That the psychologist based his answer to a question propounded at trial, on a “medical certainty” did not strengthen the Patuxent report one iota. Furthermore, since this was a non-jury trial Judge Mathias, when he weighed the evidence in order to détermine whether the State had met its burden of proving by a preponderance that appellant was a defective delinquent, was perfectly capable of separating the wheat from the chaff.

Judgment affirmed.

      . We note that the actual number of interrogatories exceeded thirty. See Md. Rule 417 a 2. See also Griffith v. Polakoff (Super. Ct. of Balt. City), Daily Record, Oct. 9, 1956. The State did not except to the interrogatories, and the matter was not passed upon by the trial court, nor do we consider it.

      . See Md. Rule 417 g (effective January 1, 1976) in reference to the necessity for a hearing after the parties have unsuccessfully tried less formal means of obtaining the information.

      . The Court of Appeals in State v. Tull, 240 Md. 49, 212 A. 2d 729 (1965), rejected the federal rule relative to the “medical” testimony by “qualified” psychologists.


text:
    JOHN T. STAUB, JR. v. JOHN T. STAUB, SR.
    [No. 1008,
    September Term, 1975.]

      Decided May 10, 1976.

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

      Richard M. Winters, with whom was Robert D. Osbum, Jr., on the brief, for appellant.

      Kenneth J. Mackley, with whom were Mackley & Gilbert, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

John T. Staub, Jr., appellant, filed, in the Circuit Court for Frederick County, Maryland, a paper writing purporting to be a pleading, entitled “Motion for an Accounting and Appointment of a Trustee.” In the “motion” the appellant alleged that his grandfather had purchased five Series H, United States Savings Bonds, payable upon the death of the purchaser to his grandson, the appellant. The “motion” recites that the grandfather died in 1954, and the bonds’ ownership passed to the appellant, who was then a minor. According to the “motion,” sometime in 1959, the appellee, John T. Staub, Sr., “cashed in” the bonds and purchased a radio station, which he sold later at a “. . . great profit. . . .” Appellee then, allegedly, invested the proceeds in “. . . waterfront property . . .” which was subsequently vended at “. .. a great profit. . .”, and another radio station was purchased. Insofar as the record disclosed, the appellee still owns that station. Demand for an accounting by the appellee to the appellant has been refused.

The appellee demurred to the “motion” on the grounds that, (1) a “motion” for the commencement of this type of proceeding was improper and (2) that the proper remedy for the appellant to seek was an action at law for conversion, which had already been brought by the appellant on the law side of the court. The court sustained the demurrer without leave to amend.

Appellant asks us to reverse the circuit court’s ruling. He argues that the hearing court abused its discretion in not allowing the appellant to file an amended bill of complaint. Appellant asseverates that the facts clearly show a constructive trust and that an in camera argument was made along that particular line. The appellee agrees with the appellant with respect to the factual recitation concerning happenings in the chambers of the hearing judge.

Amendments to actions at law or equity are governed by Md. Rule 320 which provides, in pertinent part:

“a. Scope and Purpose.
1. Process, Pleadings and Record.
Unless the court otherwise directs any of the proceedings, including process, pleadings, and record, may be amended so that the case may be tried on its merits.
2. Action to Another Form.
An action may be amended from one form to another.
d. Procedure.
3. . . . Where a demurrer to any pleading is sustained, the court may, in its order, prohibit further amendment.”

The Court of Appeals has repeatedly held that amendments should be freely permitted in order better to promote the ends of justice. Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 320 A. 2d 266 (1974); Preissman v. Harmatz, 264 Md. 715, 288 A. 2d 180 (1972); Earl v. Anchor Pontiac Buick, Inc., 246 Md. 653, 229 A. 2d 412 (1967); Jacobson v. Julian, 246 Md. 549, 229 A. 2d 108 (1967). This Court has likewise trod the same path. Zell v. Zell, 12 Md. App. 563, 280 A. 2d 22 (1971). An amendment should not be allowed, however, if it will result in prejudice to the opponent or will unduly delay the results. Robertson v. Davis, 271 Md. 708, 319 A. 2d 816 (1974). In the case sub judice there is no allegation, nor even an indication, that an amendment will result in prejudice to the appellee or unduly delay the final solution.

Lest there be any doubt as to the extent to which the Court of Appeals has gone in permitting amendments to be made freely, that doubt was laid to rest in Crowe v. Houseworth, 272 Md. 481, 325 A. 2d 592 (1974), reversing 19 Md. App. 688, 313 A. 2d 523 (1974). In that case, this Court was of the belief that the seeking to amend a suit by adding new parties plaintiff and, thus, satisfying the rule relative to non-joinder of parties in a joint tenancy case, see Crowe v. Houseworth, 19 Md. App. at 694, was unreasonable in view of the 71/2 years the case had been at issue. We so believed because we felt the delay was inordinate, and we held that the hearing judge did not abuse his discretion in refusing the amendment. We were wrong. The Court of Appeals, on certiorari, in Crowe, 272 Md. at 485, said:

“One of the relatively recent, but nonetheless dramatic developments in the law, is the increased liberality with which amendments of pleadings may be allowed, with or without leave of court, if the ends of justice are served. Generally, this has been accomplished by either statute or rule, C. Clark, Law of Code Pleading § 115, at 708-15 (2d ed. 1947).”

The Court reiterated that “. . . amendments should be freely allowed . . . .” 272 Md. at 485.

While the decisions of the Court of Appeals hold that “. . . the allowance or refusal of an amendment is ordinarily within the discretion of a trial court and that no appeal will lie from the action, in the absence of a clear showing of an abuse of discretion,” 272 Md. at 489, the Court apparently felt that there had been an abuse in Crowe. The Court pointed out that Crowe’s claim was not barred by limitations and that Houseworth was “. . . in no way prejudiced 272 Md. at 489.

3 Poe’s Pleading and Practice § 184 (6th ed. H.M. Sachs, Jr. 1975) states:

“Amendments now' liberally allowed. — These provisions [the Maryland Rules] are so clear as to call for but little comment. They indicate great liberality in the allowance of amendments, in order to prevent the substantial justice of a cause from being defeated by formal slips or slight variances, and under their operation the practical injustice which formerly disfigured the administration of the law, in consequence of the enforcement of strict technical rules of pleading, is greatly diminished.”

The same treatise says “.. . that cases may, by amendment, be changed from one form of action to another.. . 3 Poe’s Pleading and Practice § 185. See Md. Rule 320 a 2. See also H. Ginsberg and I. Ginsberg, Pleading at Law in Maryland 105 (1937), where it is said:

“. . . [If] the amendment materially changes the nature of the action, as where, for example, an action of trespass to the person is changed to an action of case for slander, the defendant may regard the amendment as equivalent to the filing of a new suit and plead limitations as of the date of the amended declaration.”

Messrs. Ginsberg strongly imply that the change by amendment from one cause of action to another is permitted notwithstanding that the defendant is at liberty to plead limitations. Significantly, the observation by Messrs. Ginsberg pre-dated Md. Rule 320 a 2.

Irrespective of what the procedural law may be in other jurisdictions, Maryland has adopted a liberal view relative to amendment. It is manifest that the Maryland rule is designed to place a case on trial on its merits, thus fostering justice rather than impeding it by adhering to antiquated technicalities.

When we apply the rationale of the Crowe decision by the Court of Appeals and our recent holding in Mack Trucks, Inc. v. Webber, 29 Md. App. 256, 347 A. 2d 865 (1975), cert. denied, February 3, 1976, to the instant case, we are compelled to conclude that the hearing judge should have permitted the requested amendment. That failure to do so amounts, in this case, to an abuse of discretion.

Order reversed.

Case remanded for further proceedings not inconsistent with this opinion.

Costs to be paid by appellee.

      . Apparently the appellee is the appellant’s father and, as such, obtained possession of the bonds.

      . Inasmuch as laches does not appear on the surface, at least, to be a problem in this case, it is difficult to comprehend why the appellant chose the appellate route rather than simply filing a new bill of complaint. The new bill of complaint could have alleged facts, which, if proven, could have led to the imposition of a constructive trust upon the property of the appellee.

      . Federal courts have followed for some time, a liberal rule permitting leave to amend freely in order to promote justice. See 3 J. Moore, Federal Practice § 15.08[2] (2d ed. 1974). See generally 71 C.J.S. Pleading §§ 275-322 (1951).