text:
    ELIZABETH S. DUSKIN v. GERALD L. DUSKIN
    [No. 1004,
    September Term, 1981.]

      Decided April 13, 1982.

    The cause was argued before Weant and Bishop, JJ., and

      James S. Getty, Chief Judge of the Fourth Judicial Circuit, specially assigned.

      Nelson M. Oneglia, with whom were Horowitz, Oneglia, Goldstein, Foran & Parker P.A. on the brief, for appellant.

      Raymond Rabin for appellee.
   Bishop, J.,

delivered the opinion of the Court.

During its 1978 session the General Assembly of Maryland enacted legislation which granted equity courts authority to provide for the disposition and use of property in conjunction with a divorce or annulment. Laws of Maryland, ch. 794, § 1 (1978). This statute is now codified as Md. Cts. & Jud. Proc. Code Ann. § 3-603 and §§ 3-6A-01 to 3-6A-07 (1980 Repl. Vol., 1981 Cum. Supp.). Section 2 of chapter 794 provides that "This Act shall take effect January 1, 1979 and shall apply only to cases filed after that date.”

This appeal, from a final decree of divorce a vinculo matrimonii granted by.the Circuit Court for Montgomery County, requires this Court to interpret Section 2 in an unusual factual context.

The Facts

Elizabeth S. Duskin, the appellant, and Gerald L. Duskin, the appellee, were married in 1957. On or about April 26, 1978, the parties separated and on June 23, 1978 the appellant filed a bill of complaint in the Circuit Court for Montgomery County for injunctive relief and divorce a mensa et thoro alleging appellee’s cruelty. This case was designated Equity No. 63525. The appellee answered the bill of complaint and on July 7, 1978 filed a counterclaim for divorce a mensa et thoro, also alleging cruelty. The appellant filed a timely answer to the appellee’s counterclaim, and on December 29, 1978 filed an amendment to her bill of complaint which deleted any claim or request for divorce a mensa et thoro. On June 14,1979 the appellee filed a supplemental cross-bill of complaint for divorce a vinculo matrimonii in Equity No. 63525. In this cross-bill the appellee reiterated the allegations of the appellant’s cruelty which he had set forth in his counterclaim, and he stated that the parties continued their voluntary separation as set forth in the appellant’s bill of complaint.

The appellant answered the appellee’s supplemental cross-bill of complaint and on July 23, 1979 she filed a bill of complaint for divorce a vinculo matrimonii on the grounds of appellee’s cruelty and the parties’ voluntary separation. This bill of complaint was assigned Equity No. 67957. On October 4, 1979, the appellee filed a motion raising preliminary objection to the appellant’s second bill of complaint on the grounds that his supplemental cross-bill of complaint constituted a pending action between the same parties for the same cause in Equity No. 63525. Following a hearing on the appellant’s motion, the Circuit Court, by an order filed on February 6, 1980, denied the motion without prejudice to the appellee "to raise this matter at the time of the hearing on the merits.” By that same order the Circuit Court also consolidated for trial Equity Nos. 67957 and 63525. All subsequent documents pertaining to the case bear the designation of "Equity No. 63525” or "Equity No. 63525, 67957 (Consolidated).”

Trial was held on February 23, 24 and 26, 1981. During the last day of trial the chancellor concluded:

"That on or about the 25th day of April, 1978, the parties did voluntarily and mutually agree to live separate and apart and have lived separate and apart since that time without any reasonable hope or expectation of a reconciliation.
That immediately brings me to the first place where I have to go and that is I have now found sufficient facts on which to award a divorce a vinculo, but I have to first meet the question of which case I can go under.
The posture of the case is this: In 63525 an original complaint was filed by Mrs. Duskin on June 23, 1978, for divorce a vinculo [sic]. On June 14, 1979, the husband filed a supplemental cross-bill for a divorce a vinculo on the grounds of voluntary separation. On July 23, 1979, the new bill was filed in separate action 67957.
The problem I face is this, and that is I have to reach — since they have both filed for the same grounds; namely, on the grounds of voluntary separation, I have to reach the one which was first filed in time and, therefore, I have to reach the one, the supplemental cross-bill that was filed by Mr. Duskin, although I might not particularly wish to do that, that is the way I have to follow the law and that is what I have to do. I cannot leap over that and go directly to the other one, ....
I have carefully read the Mollar case looking for some sort of help that might allow me to go along with the Mollar case, but I could not find it.
In that case there were two totally distinct cases in the form of what the grounds were. In other words, his was for constructive desertion and hers was for desertion and, therefore, in that case they said, no, he didn’t prove his claim and, therefore, he was — his case was out, and therefore they could go to the other one and find it.
We don’t have that here. I just have the same grounds, and so I have to reach that one first.
At any rate, so, I found I really was not able to use that as an authority to do it, so therefore I have to give the divorce to Mr. Duskin on the non-culpatory ground of voluntary separation for one year.”

On March 20, 1981, the chancellor filed her final decree that the appellee be divorced a vinculo matrimonii from the appellant "in Equity No. 63525.” It was further ordered that the appellant be awarded custody of the parties’ minor child and that appellee pay appellant $650.00 per month child support and $5,000.00 towards appellant’s attorney’s fees.

Application of the Marital Property Act

1. A Case with Supplemental Pleadings

On appeal the appellant contends that the chancellor abused her discretion by not applying the Marital Property Act, Md. Cts. & Jud. Proc. Code Ann. §§ 3-6A-01 to 3-6A-07 to the present case. In her brief the appellant supports this contention, without reference to case law, by asserting that the Act "Should be interpreted liberally in close cases to advance the remedy and obviate the mischief at which [the Act is] directed.” At oral argument the appellant renewed this assertion in a modified form, citing Wallace v. Wallace, 46 Md. App. 213, 416 A.2d 1317 (1980) for the proposition that the chancellor "could have granted” a divorce to the appellee while awarding alimony and property to the benefit of the appellant.

The appellee replies by contending that the chancellor’s final decree, which was not based on the Marital Property Act, is sustainable in light of this Court’s recent interpretation of the effective date clause of the Marital Property Act — Laws of Maryland, ch. 794, § 2 (1978).

In Athanason v. Athanason, 48 Md. App. 232, 426 A.2d 16 (1981), this Court held that Section 2 precluded the application of the Marital Property Act to a case in which a wife filed a bill of complaint for divorce a mensa et thoro in 1978, and then in 1979 filed a supplemental bill of complaint for divorce a vinculo matrimonii. Unlike the present case, in Athanason, supra, the same party filed both the original bill of complaint prior to 1979 and filed the supplemental bill under which the divorce a vinculo matrimonii was granted. Moreover, in Athanason neither party filed in 1979 a second bill of complaint which was designated with a second equity number. Because of these factual distinctions between Athanason and the present case we cannot find Athanason completely dispositive of the present question concerning application of the Marital Property Act.

The introduction into the present case of a second bill of complaint creates a significant distinction between this case and Athanason. As the Hon. Benjamin L. Cardin, Speaker of the House of Delegates, noted in his discussion of the effective date clause of the Marital Property Act, distinct issues exist as to whether the Act applies 1) if a cross-bill was filed after January 1, 1979, although the original papers were filed prior to January 1, 1979, and 2) if a separate bill of complaint was filed after January 1, 1979, but another bill of complaint was pending and was filed prior to January 1, 1979. B. Cardin, "Property Disposition in Divorce and Annulment,” in Maryland Divorce and Separation Law 61-62 (J. W. Ester, ed. 1979). See also, "Property Distribution Upon Divorce in Maryland” 8 Balt. L. Rev. 377,379-380, n. 23 (1979), in which the student writer identifies "several interim problems” with the Marital Property Act, including 1) "whether an action filed prior to January 1, 1979 can be amended or supplemented and thereby qualify as a new action within the Statutory provisions;” and 2) "it is not clear which law would apply if one spouse filed a bill of divorce prior to January 1, 1979 and the other [or same spouse] filed after that date.... If the second bill for divorce withstands a preliminary objection, it is not clear what law would apply if the cases were consolidated.”

The decision in Athanason, supra, that a supplemental bill of complaint for divorce filed in 1979 would "relate back” to the 1978 filing date of the original bill of complaint, effectively solves the first hypothetical problem posed by Speaker Cardin and the law review author. It remains for this Court now to determine whether the Marital Property Act applied in a more complicated circumstance.

Clearly, when the present case began with the filing on June 23,1978 of the appellant’s bill of complaint for divorce a mensa et thoro, the Marital Property Act could not have been applied in an adjudication on that bill. Likewise the Act could not have been applied to the appellee’s counterclaim file on July 7, 1978. Bender v. Bender, 282 Md. 525, 535, 386 A.2d 772, n. 7 (1978).

If the present case had been jointly tried on the appellant’s original bill of complaint, on the appellee’s counterclaim and his supplemental crossbill of complaint for divorce a vinculo matrimonii filed on June 14, 1979, then the Marital Property Act still could not be applied to the case. Athanason, supra, would preclude application of the Act because Athanason controls any case initiated prior to 1979 in which the parties first sought a legal separation, and then supplemented or amended their case in 1979 for the purpose of obtaining an absolute divorce. Regardless of which party supplemented the initial pleadings, and despite the 1979 filing date of the supplementation, the controlling date for application of the Marital Property Act to such a case is not the 1979 filing date of the supplemental bill, but the 1978 filing date of original pleadings. Section 2 of the Statute permits the Act’s application only to cases filed after January 1,1979, and as this Court held in Athanason, supra, 48 Md. App. at 234, "a supplemental bill is not a case.”

2. Consolidated Case

Having determined that the initial and supplemental pleadings for Equity No. 63525 could properly have been adjudicated without application of the Marital Property Act, we must now determine whether the lower court was required to apply the Act in the consolidated adjudication of Equity No. 63525, 67957. For the reasons set forth in the remainder of the opinion we hold that Laws of Maryland, ch. 794, § 2 (1978) does not require the application of the Marital Property Act, Md. Cts. & Jud. Proc. Code Ann. §§ 3-6A-01 — 3-6A-07 in a consolidated case if the original pleadings of the case were filed prior to January 1, 1979. Therefore, in declining to apply the Act in the present case, the chancellor did not abuse her discretion.

Our conclusion in this appeal necessarily follows from an analysis of the legislative intent behind the Marital Property Act and from the applicable case law. In Athanason, supra, at 234, we found that the language of Section 2 was "sensible and free from ambiguity,” and that by that language the legislature clearly expressed its intention to limit the application of the Act to actual cases filed after the Act’s effective date. That date, January 1, 1979, was postponed from the date of the Act’s approval, May 29, 1978, to allow interested parties sufficient time to become conversant with the statute. Id. at 235. As Judge MacDaniel stated in Athanason at 235, this deliberate limitation also allows the Act, "to run 'afresh’ from some point in time.” Moreover, the strict cutoff-date of Section 2 has spared Maryland courts the entangling litigation which can result from the retroactive application of more permissive marital and community property statutes. See e.g., Schubert v. Schubert, 66 Ill. App. 3d 29, 383 N.E.2d 266 (App. Ct. 1978) remanded by the Appellate Court of Illinois for application of that State’s Marriage and Dissolution of Marriage Act to a case which was initiated four months prior to the effective date of the statute; see also those cases cited in Uniform Marriage and Divorce Act (U.L.A. West) § 502 (1979, 1982 Cum. Supp.).

Supporting her contention that the chancellor should have granted separate judgments in the consolidated case, the appellant does not refer us to judicial authority but rather cites Md. Rule 606 for the proposition that "in consolidated trials the court may render joint or separate judgments as justice may require.” Justice, according to the appellant, "requires application of the new Marital Property Act.” The appéllant then concludes that the chancellor’s final decree, a joint judgment entered in the consolidated case, was "arbitrary.” By the proper exercise of judicial discretion, the appellant submits, "The chancellor should have decided property distribution questions under Equity No. 67957 despite the fact that [the] divorce was granted technically in Equity No. 63525.

Nothing in the appellant’s brief supports the assertion that the chancellor was required to apply the Marital Property Act for the benefit of the appellant. At oral argument appellant reasoned that such a requirement exists because the chancellor had "discretion and ability” to apply the Act, and because she "did not have to” rely on the prior law of property distribution. This line of reasoning fails in light of the appellant’s concession in her brief that "when cases are consolidated for trial, they become for the purpose of trial one case. Holloway v. Wright, 21 Md. App. 615, 320 A.2d 572 (1974).”

In Holloway, supra, at 617, n. 1, we cited Md. Rule 503 for the principle that:

"When two or more cases are consolidated, there are multiple parties, multiple claims, and multiple counts, but they become for the purpose of trial, one case.” (Emphasis added).

By invoking Md. Rule 503 litigants may persuade a court to create from many cases, one. This doctrine was applied by the Court of Appeals in Daniels v. State, Exc., 243 Md. 244, 248, 220 A.2d 604 (1966) when the Court held that the filing of a motion for a new trial in only one action of a consolidated case precluded the entry of a judgment for costs in another action of that case.

A chancellor may decide that the various actions in a consolidated case are so distinct that separate judgments ought to be rendered pursuant to Md. Rule 606. Coppage v. Resolute Insurance Co., 264 Md. 261, 263, 285 A.2d 626 (1972). If the parties and subject matter of a consolidated case are the same or substantially similar, then a chancellor reasonably may grant a joint judgment in the final decree. See Pitts v. Pitts, 181 Md. 182, 29 A.2d 300 (1942) in which the Court of Appeals ruled that the parties and issues of a consolidated divorce and custody case were "intimately associated,” and, therefore, properly consolidated. Discussing the effect of the consolidation the Court quoted from Miller, Equity Procedure, § 236 (1897 edit.):

"[A]pplying the maxim 'Equity prevents multiplicity of suits,’ cases pending at the same time in the same court in relation to the same subject matter and which can be conveniently determined by one decree, may be consolidated by order passed after due notice. The avoiding of several suits and the consequent expenses, and the convenience of the thing by facilitating progress, are the advantages of consolidation in proper cases. When consolidated, the rights of all parties are as fully before the court as if they had been originally combined in one suit.” Id. at 191 (emphasis added).

Based on the aforementioned authorities we find that when the Circuit Court for Montgomery County consolidated Equity No. 63525 and Equity No. 67957, the court created one case. For purposes of analysis under Section 2 of the Marital Property Act, the original bill of complaint for that one case was the appellant’s bill of complaint filed on June 23, 1978 and never dismissed. Just as the appellee’s supplemental pleadings became "a part of the original case,” Athanason, supra, at 234, so the appellant’s bill of complaint filed on July 23, 1979 became tantamount to a supplementation of her original bill of complaint.

The substantial similarity between the appellant’s second bill of complaint and her original bill of complaint supports our finding that the second bill of complaint did not initiate a "separate proceeding” which might be adjudicated under the Marital Property Act. See 63 Atty. Gen. Opin. 472, 475-476 (1978), wherein the Attorney General opined that "the mere institution of an action for alimony without divorce prior to January 1, 1979 will not render a separate proceeding instituted after that date 'a case filed prior thereto’ for the purposes of Section 2” (emphasis added). The appellant’s second bill of complaint alleged 1) that the parties had lived apart since on or about April 26, 1978; 2) that the appellee treated the appellant "with extreme cruelty and contempt”; 3) and that he had returned on one occasion to the marital abode. These allegations restate the cause of action set forth in the appellant’s original bill of complaint wherein she averred 1) that the parties commenced living apart on April 26,1978; 2) that the appellant’s conduct constituted "cruelty of treatment”; 3) and that the appellant had threatened to move back to the marital abode.

The appellant’s cause of action was adequately set forth in her original bill of complaint, and no new cause of action was interjected by the second bill of complaint. Thus, the second bill constituted nothing more than an "emanation of the same cause of action” previously asserted, and it "relates back to the time of filing of the original bill ...” See Prince George’s County v. Blumberg, 44 Md. App. 79, 109-110, 407 A.2d 1151, reversed on other grounds, (1979) applying this rule in a statute of limitations context; see also Mt. Sinai Hospital v. Mora, 342 So. 2d 1063, 1064 (Fla. App. 1977), in which a Florida appellate court found that a third-party complaint filed after the effective date of a malpractice mediation statute was an integral part of the malpractice case that commenced prior to the statute’s effective date, and that the case was exempted from the mediation requirement.

Rather than stating a new cause of action, the appellant’s second bill of complaint differs from the original complaint only in its requested remedies, i.e., divorce a vinculo and application of the Marital Property Act. The appellant’s apparent motive for filing a second bill of complaint was to seek application of the Act, as indicated in the appellant’s opposition to the appellee’s motion raising preliminary objection to the appellant’s second bill of complaint. The appellant requested the lower court to deny the appellee’s motion so that she could "seek ... the relief afforded by the new Domestic Relations Law of Maryland, Chapter 794, Acts of 1978.” At trial the appellant was provided an opportunity to seek such relief, but the lower court did not err in refusing to provide the appellant with the benefits of the Marital Property Act.

Attorney’s Fees

At trial the appellant requested the lower court to order the appellee to pay her attorney’s fees. Based on evidence adduced during the trial the chancellor determined that the appellant had incurred legal expenses totaling $15,000.00, and that the appellee’s legal expenses amounted to $23,000.00. Relying on testimony concerning the reasonableness of the attorney’s fees, the chancellor awarded the appellant $5,000.00 for the services of her attorney, Mr. Oneglia. The chancellor refused to make an award for services charged by another attorney of the appellant, Mr. Skalet, because of insufficient evidence that these latter expenses were reasonable or necessary.

On appeal the appellant contends that sufficient evidence of the reasonableness of Mr. Skalet’s fees was offered at trial, but that the chancellor erred in sustaining appellee’s objections to the admission of the proffered evidence. The record reveals that this excluded evidence consists of an unitemized bill from Mr. Skalet, and proffered testimony as to the amount that an attorney would earn from such a domestic relations case.

Attorney’s fees are awarded in a divorce case according to the factors of labor, skill, time, and benefit, as well as the financial resources of the party charged. Wallace v. Wallace, 46 Md. App. 213, 229, 416 A.2d 1317 (1980). The amount of the award of attorney’s fees is within the chancellor’s sound discretion, and this Court may not disturb that award absent evidence of an abuse of that discretion. Sody v. Sody, 32 Md. App. 644, 363 A.2d 568 (1976). Upon review of the record we find no abuse of discretion.

Judgment affirmed; appellant to pay costs.

      . The chancellor read an unreported circuit court opinion in the case of Mohler v. Mohler, Equity No. 97685, 98700 (Cir. Ct. for Balt. Co., 1980).


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    JAMES WINSTON SMALLWOOD v. STATE OF MARYLAND
    [No. 1066,
    September Term, 1981.]

      Decided April 13, 1982.

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

      Cynthia E. Young, Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This case involves a conviction for a May 1975 bank robbery at a November 1980 trial on a September 1979 indictment. Expectantly, pre-indictment delay is the major issue on appeal.

THE FACTS

The record discloses that a jury in the Circuit Court for Calvert County, presided over by Judge Perry G. Bowen, Jr., found James Winston Smallwood to be one of three men who held up the Maryland Bank and Trust Company in Lexington Park, Maryland, on May 19, 1975. Smallwood was determined.by the jury to be guilty of 1) robbery with a dangerous and deadly weapon; and 2) grand larceny. For the purpose of sentencing, Judge Bowen merged the latter conviction with the former and imposed a term of 20 years imprisonment "to run consecutively to any sentence previously imposed by any other court.”

PRE-INDICTMENT DELAY

Appellant asserts that his "due process rights were violated by the State’s lengthy pre-indictment delay.”

I.

The Supreme Court in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), amplified its holding in Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374, 386 (1966), that "[t]here is no constitutional right to be arrested,” by declaring that "prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt.” 431 U.S. at 791, 97 S.Ct. at 2049, 52 L.Ed.2d at 760. Not only would prosecutions commenced solely on probable cause be a helter-skelter undertaking, but they would wreak havoc with an accused’s pocket book, emotions, family, liberty, and life and subject the accused to public scorn. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

Justice Marshall in Lovasco penned that there was no "clear constitutional command” within "the Due Process Clause of the Fifth Amendment” that would require that Court to "adopt a rule” mandating prosecution immediately upon a showing of probable cause. 431 U.S. at 795, 97 S.Ct. at 2051, 52 L.Ed.2d at 762.

There are a number of reasons why the Court would avoid such a rule:

1) An immediate arrest or indictment of a person might impair, if not preclude, the bringing of charges against other persons involved in the same criminal act; 2) Even if the immediate arrest or indictment did not foreclose the State’s right to proceed against other persons, perceived jointly or severally criminally liable, such indictment might well lead to multiple trials rather than one joint trial. The savings in time and money of a single trial are too obvious to require explanation; 3) Arrest or indictment on the basis of probable cause alone will inevitably lead to the trial of a number of cases where there is little if any chance of proving guilt beyond a reasonable doubt; 4) The increase in the number of cases brought to trial will strain an already overburdened system and add to the onus borne by the taxpayers who ultimately must foot the bill for the total costs of most prosecutions; 5) The guilty may escape convictions because prosecutions are brought before the State obtains adequate evidence to sustain a conviction; 6) Making a decision to prosecute immediately upon obtaining probable cause would tend to preclude the prosecutor’s deciding that a prosecution was, under the circumstances, unjustified. "The decision to file criminal charges, with the awesome consequences it entails, requires consideration of a wide range of factors in addition to the strength of the .. . [State’s] case, in order to determine whether prosecution would be in the public interest.” (Footnote omitted). 431 U.S. at 794, 97 S.Ct. 2051, 52 L.Ed.2d at 761-62.

The American Bar Association Project on Standards for Criminal Justice, The Prosecution Function § 3.9 (App. Draft 1979), states that prosecutors are not obligated to prosecute everyone charged with a crime or crimes. Cases do arise when the prosecutor, consistent with the public interest, will decline to prosecute, notwithstanding that the evidence will likely support a conviction. Section 3.9 lists several "factors which the prosecutor may properly consider in exercising his or her discretion....” Those factors are:

"(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;
(iv) possible improper motives of a complainant;
(v) reluctance of the victim to testify;
(vi) cooperation of the accused in the apprehension or conviction of others; and
(vii) availability and likelihood of prosecution by another jurisdiction.”

In short, "Delay is preferable to error.”

II.

Lovasco was, as we have seen, concerned with the Due Process Clause of the Fifth Amendment. That particular clause of the Fifth Amendment, however, has never been held applicable to the States, and, therefore, Lovasco is not binding upon us.

Nevertheless, Smallwood is not left adrift in a litigious sea sans sail or oar. On the contrary, available for his protection and applicable are the Declaration of Rights to the Maryland Constitution and the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. We shall now consider each of those protections.

III.

Maryland has no statute prescribing the time in which a prosecution for a felony must be commenced. When, as here, there is no such statute, we turn to the common law in order to ascertain the applicable period of limitations, if any. The reason for our turning to the common law is found in the State Constitution. There, in Article 5 of the Declaration of Rights, Constitution of Maryland, it is mandated "[t]hat the Inhabitants of Maryland are entitled to the Common Law of England” and acts of Parliament as they existed on July 4, 1776. "At common law, criminal proceedings may be instituted at any time during the life of an offender.” Hochheimer, Law of Crimes and Criminal Procedure § 87 (1897); 1 Wharton, Criminal Law (14th Ed. 1978) § 90. Accord, Clark & Marshall, The Law of Crimes § 6.20 (7th Ed. 1967). See also Archer v. State, 145 Md. 128, 138, 125 A. 744, 750 (1924). Thus, it is clear that any indictment, otherwise validly brought against Smallwood for the bank robbery of May 19, 1975, will not fail merely because it was handed down by the Grand Jury for St. Mary’s County more than four years after the offense was committed.

IV.

Having established that there is no statutory or common law bar to the prosecution of Smallwood, we now examine whether there is a Maryland Constitutional barrier to his prosecution.

Article 24 of the Declaration of Rights to the Maryland Constitution provides:

"[N]o man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. ” (Emphasis supplied).

The phrase "Law of the land” has been consistently "equated” to "due process of law” as that term is employed in the Constitution of the United States of America. Pitsenberger v. Pitsenberger, 287 Md. 20, 410 A.2d 1052, appeal dismissed, 449 U.S. 807 (1980); Crawford v. State, 285 Md. 431, 452, 404 A.2d 244, 254 (1979); Mazor v. State, Dept. of Correction, 279 Md. 355, 369 A.2d 82 (1977); Northhampton Corp. v. Washington Suburban Sanitary Commission, 278 Md. 677, 366 A.2d 377 (1976); Aero Motors, Inc. v. Administrator, Motor Vehicle Administration, 274 Md. 567, 587, 337 A.2d 685, 700 (1975); The Baltimore Belt Railroad Co. v. Baltzell, 75 Md. 94, 99, 23 A. 74, 76 (1891), and decisions of the Supreme Court with respect to the due process clause of the Fourteenth Amendment "are practically direct authorities.” Sanner v. Trustees of Sheppard And Enoch Pratt Hospital, 278 F. Supp. 138 (D. Md.), aff'd, 398 F.2d 226 (4th Cir.), cert. denied, 393 U.S. 982 (1968); Northhampton Corp. v. Washington Suburban Sanitary Commission, supra, 278 Md. at 686, 366 A.2d at 383; Bureau of Mines v. The George’s Creek Coal & Land Co., 272 Md. 143, 321 A.2d 748 (1974); Allied American Mutual Fire Insurance Co. v. Commissioner, 219 Md. 607, 616-17, 150 A.2d 421, 427 (1959).

In discussing pre-indictment delay, one should bear in mind that the Sixth Amendment right to a speedy trial is not involved. That constitutional principle is not operable until " 'the putative defendant in some way becomes an "accused....” ’ ” State v. Hamilton, 14 Md. App. 582, 586, 287 A.2d 791, 793 (1972), quoting United States v. Marion, supra at 459; State v. Lawless, 13 Md. App. 220, 229-30, 283 A.2d 160, 168 (1971). See United States v. MacDonald, 30 Cr. L. 3111 (1982).

This Court, in State v. Hunter, 16 Md. App. 306, 311, 295 A.2d 779, 782 (1972), interpreted Marion and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We said with respect to the Sixth Amendment speedy trial provision:

"[I]t is patent that in order to calculate a constitutionally proscribed delay in bringing a matter to trial, we must look back to the date of the commencement of a prosecution by way of arrest, warrant, information or indictment, whichever shall first occur, and then forward to the date of the trial or hearing.”

That triggering mechanism is inapposite in the instant case because, as Judge Moylan observed for this Court in Lawless,

"Although a general 'due process’ right may be involved, there is no 'speedy trial’ right guarding against undue delay in the pre-indictment or pre-arrest phase of a criminal proceeding.” (Footnote omitted).

The only Maryland case that we have found that discusses pre-indictment delay is Dorsey v. State, 34 Md. App. 525, 537, 368 A.2d 1036, 1044 (1977). There, Judge Moore, for this Court, said:

"[A]bsent a showing of actual prejudice, compared to possible prejudice, 'the applicable statute of limitation ... is usually considered the primary guarantee against bringing overly stale criminal charges.’ ... Where a defendant can demonstrate actual prejudice, however, in circumstances where the delay between the occurrence of the criminal offense and the date of arrest or indictment is unduly long and the actions of the State in delaying were unreasonable, deliberate and oppressive, the due process clause would demand a dismissal of the indictment.” (Citations omitted).

Dorsey, decided before Lovasco, was not quite as forcible as our Nation’s highest Court chose to be in Lovasco. There, the Supreme Court made clear that something more than actual prejudice to an accused was necessary before an indictment could be dismissed on Fifth Amendment due process grounds.

Although Lovasco was decided on the basis of the Due Process Clause of the Fifth Amendment, we perceive no reason in this case to address whatever distinction there may be between the due process clause of the Fifth Amendment and that of the Fourteenth Amendment. We shall, in the matter sub judice, treat "due process,” whether in the Fifth or the Fourteenth Amendment, as being equated to the "Law of the land.”

"[T]he Due Process Clause,” Justice Marshall wrote, "does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment.” 431 U.S. at 790, 97 S.Ct. at 2049, 52 L.Ed.2d at 759. "Judges,” he said, "are not free, in defining 'due process,’ to impose on law enforcement officials ... 'personal and private notions’ of fairness and to 'disregard the limits that bind judges in their judicial function.’ Rochin v. California, 342 U.S. 165, 170 [72 S.Ct. 205, 209, 96 L.Ed. 183, 189 (1952).”] Id.

Lovasco defined the task of a court to be that of determining "only whether the action complained of — ... compelling ... [a defendant] to stand trial after the ... [State] delayed indictment to investigate further — violates those 'fundamental conceptions of justice which lie at the base of our civil and political institutions.’ ” Id.

One plain message of Lovasco is that judges are not free to interpret "due process” in a manner consistent with their own particular notions of fundamental fairness. Due process requires the application of the law as it is, not as one might like or prefer the law to be.

We think due process to be an idea, a concept, not some rigid crystal-like structure that will fracture and crumble with the least deviation or variation. On the contrary, "due process” is flexible and adaptable to particular facts and circumstances.

From Lovasco and the progeny it has sired, we distill a two-pronged conjunctive test, i.e., those who assert pre-indictment delay must prove:

1) actual prejudice to the accused
and
2) that the delay was purposefully made by the State to gain a tactical advantage over the accused.

It is the required showing of actual prejudice that distinguishes Sixth Amendment speedy trial matters from the Fourteenth Amendment "Due Process” and Article 24 "Law of the land” cases. The distinction is not a matter of mere semantics; it is crucial because in Sixth Amendment cases, "prejudice” may be presumed from delay, but in pre-indictment delay — "Due Process-Law of the land” matters — prejudice may not be presumed but must be proven.

To show prejudice, Smallwood, in the case now before us, asserted that a witness, one "Murphy,” whose first name and address are unknown, may be of some importance as a defense witness, but he now may be dead. Smallwood made no proffer as to what "Murphy” would say if present, nor was there the slightest indication as to what "Murphy” knew about the case.

On the basis of what may be the mythical Mr. Murphy, Smallwood asseverates that he has shown actual prejudice. We have an entirely different view.

The law is clear that one who avers that he or she has been prejudiced by a delay in indictment must prove actual prejudice. A mere allegation as to the existence of a defense witness, whose surname is similar to that of hundreds of thousands of other persons, and whose given name and whereabouts are unknown, will not suffice to demonstrate actual prejudice, nor will it reach that plateau by combining it with a bald claim that the witness may now be dead.

We think Smallwood has failed the first tine of the pre-indictment delay two-pronged test. Since the test is, as we have previously stated, conjunctive and requires satisfying both tines, there is no need for us to consider the question of purposeful delay.

SPEEDY TRIAL

Smallwood next asserts that his "rights to a speedy trial pursuant to the Sixth Amendment were violated.”

The indictment was handed down by the Calvert County Grand Jury on September 13, 1979. On April 17, 1980, the appellant, in proper person, filed a motion to dismiss the indictment for lack of a speedy trial and denial of counsel. Approximately two months later, an arraignment was held and counsel entered his appearance the next day, June 2, 1980.

In this Court, the appellant argues that "the State’s delay from March 24, 1980 until trial on November 20, 1980 was prejudicial to Appellant’s Sixth Amendment rights to a speedy trial.”

The delay in the instant case was a period of slightly less than 8 months. While the State is chargeable with the delay between March 24, 1980, and June 2, 1980, the date on which counsel for the appellant entered his appearance, that delay comprised 70 days.

The entire period of less than eight months with almost six of those months being caused by the appellant’s request for removal of his case from St. Mary’s County to elsewhere, does not, in our view, tip the Barker-Wingo scale in favor of appellant. As we see it there was no denial of a speedy trial.

EFFECTIVE ASSISTANCE OF COUNSEL

Smallwood contends that his "rights to effective assistance of counsel were violated by the delay in appointment of counsel.”

Appellant was indicted in September 1979, but counsel did not enter an appearance on behalf of Smallwood until June 2, 1980. The case was tried on November 20, 1980, a period of 5 months after counsel entered the case.

Appellant does not attack the competency of his attorney, but what appellant perceives to be an insufficient time for his counsel to prepare for trial. Interestingly, counsel did not complain.

We think that 5 months is ample time in ordinary cases to prepare for trial, and there is nothing to suggest that this case is extraordinary, thus requiring more than a normal preparation. Our review of the record indicates that counsel was well prepared and so conducted himself at trial. Smallwood’s attack on the assistance of counsel is nothing more than a desperate grasp for straws or a whistling in the wind; it is, by any standard, utterly and completely balderdash.

SUFFICIENCY OF THE EVIDENCE

Lastly, Smallwood argues that the evidence was insufficient to establish his criminal agency. In order for us to agree with him, we would have to discount to naught the testimony of the witness, Raymond Norton.

Norton told the jury that on the day of the robbery, Smallwood and a co-perpetrator went to Norton’s apartment, and that the other perpetrator admitted to Norton that Smallwood and the other person had robbed the bank. Norton stated that he saw a large pile of money in front of Smallwood while the latter was seated. Norton was indicted in connection with the crime as an accessory after the fact. As an accessory after the fact, his testimony did not have to be corroborated, Watson v. State, 208 Md. 210, 117 A.2d 549 (1955); Gardner v. State, 6 Md. App. 483, 251 A.2d 901 (1969), but merely believed by the jury. Obviously, it was believed, else no conviction would have resulted.

Suffice to say that the evidence in the case now before us was sufficient to sustain the convictions.

Judgments affirmed.

Costs to be paid by appellant.

      . The record reveals the amount taken from the bank in the robbery to be $49,550.

      . We were told on oral argument that Smallwood is currently serving a "60 year to life term” in Leavenworth, Kansas.

      . Originally, the issue put to us was "Appellant’s Fifth Amendment Due Process Rights Were Violated By The State’s Lengthy Pre-indictment Delay.” When Judge Moylan observed from the Bench that the Supreme Court has never held the Fifth Amendment Due Process Clause applicable to the States, counsel for Smallwood willingly amended the issue.

      . While in law each person is presumed innocent until proven guilty, in society, however, accusation has unfortunately become synonymous with guilt, indictment with conviction.

      . Excepted are those costs assumed by the defendant where private counsel is obtained.

      . Section 3.9 of the ABA Project on Standards for Criminal Justice, The Prosecution Function (App. Draft 1979), goes on to say:
      _ "(c) In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his or her record of convictions.
      (d) In cases which involve a serious threat to the community, the prosecutor should not be deterred from prosecution by the fact that in the jurisdiction juries have tended to acquit persons accused of the particular kind of criminal act in question.
      (e) The prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported with evidence at trial.”

      . Thomas Jefferson in a letter to George Washington dated May 16, 1792.

      . Moreover, there is no statute of limitations with respect to misdemeanors punishable by imprisonment in the penitentiary. See Md. Cts. & Jud. Proc. (1980 Repl. Vol.) Code Ann. § 5-106. See also Schaumloeffel v. State, 102 Md. 470, 62 A. 803 (1906).

      . At the suggestion of the appellant, the case was removed from St. Mary’s County where the crime occurred to Calvert County.

      . There is a similarity between the Statute of Westminster, 28 Edw. Ill (1354) and the present Art. 24 of the Maryland Declaration of Rights above quoted. The Statute of Westminster provides:
      "That no man of whit estate or condition shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.”

      . Notwithstanding the annotations in Michie, Constitutions, (1981 Rep. Vol.) to Article 24 of the Declaration of Rights, "Law of the land” has not been held to be "synonymous” with "due process of law.” Aero Motors v. Adm’r., M.V.A., infra makes that point clear when it states that "the two provisions are not synonymous.” 274 Md. at 587.

      . Martinez v. Romero, 661 F.2d 143 (10th Cir. 1981)
      United States v. Henry, 615 F.2d 1223 (9th Cir. 1980)
      United States v. Cerrito, 612 F.2d 588 (1st Cir. 1979)
      United States v. Elsberry, 602 F.2d 1054 (2d Cir.), cert. denied, 444 U.S. 994 (1979)
      United States v. Blevins, 593 F.2d 646 (5th Cir. 1979)
      Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)
      United States v. Juarez, 561 F.2d 65 (7th Cir. 1977)
      Chambliss v. State, 373 So.2d 1185 (Ala. Cr. App. 1979)
      Burke v. State, 624 P.2d 1240 (Alaska 1980)
      Coffey v. State, 585 P.2d 514 (Alaska 1978)
      State v. Hall, 129 Ariz. 589, 633 P.2d 398 (1981)
      State v. Murphy, 99 Idaho 511, 584 P.2d 1236 (1978)
      People v. Lawson, 67 Ill. 2d 449, 367 N.E.2d 1244 (1977)
      State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 (1978) (ten year delay) State v. Royal, 217 Kan. 197, 535 P.2d 413 (1975)
      Commonwealth v. Imbruglia, 377 Mass. 682, 387 N.E.2d 559 (1979) Commonwealth v. Horan, 360 Mass. 739, 277 N.E.2d 491 (1972).

      . United States v. Henry, 615 F.2d 1223 (9th Cir. 1980).

      . We are not to be understood as implying any "purposeful delay.’


author: Liss, J.,

text:
    BARRY A. KUHL et al. v. AETNA CASUALTY & SURETY COMPANY
    [No. 1089,
    September Term, 1981.]

      Decided April 13, 1982.

      The cause was argued before Moylan, Liss and Weant, JJ.

      D. Clifford Crook, III, with whom were Samuel O. Jackson, Jr. and Israelson & Jackson, P.A. on the brief, for appellants.

      Thomas E. Lynch, III, with whom were James R. Eyler and Miles & Stockbridge on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Barry A. Kuhl and Stanley Beutelspacher, appellants, seek by this appeal to overturn a jury verdict returned in the Circuit Court for Anne Arundel County in which the jury found that the collision of a motor vehicle with the appellants was an intentional act committed by one Leonard Richard Prahl.

The case arose out of a declaratory judgment action filed by Aetna Casualty and Surety Company, appellee (hereinafter "Aetna”) in the Circuit Court for Anne Arundel County in which Aetna sought a determination as to whether insurance coverage existed under two policies of insurance for injuries sustained by the appellants when they were struck by an automobile driven by Prahl on U.S. Route 50 outside of Cambridge, Maryland. The named insured on each of the policies was Sellers Sales and Service, Inc., an automobile dealership which employed Prahl as a salesman and supplied an automobile to Prahl for business purposes. At the time the injuries were sustained by the appellants, Prahl was operating a vehicle owned by Sellers Sales and Service, Inc.

Each of the policies of insurance provided coverage for bodily injuries sustained during an "occurrence.” Each policy defined "occurrence” to mean "an accident . . . which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” The appellants and appellees have agreed upon the following statement of facts:

In the early morning hours of August 7, 1977, an automobile operated by Prahl and owned by Prahl’s employer, Sellers Sales & Service, Inc., struck and injured Appellants Kuhl and Beutelspacher, as Appellants were walking on the eastbound shoulder of U.S. Route 50 just outside of Cambridge, Maryland. The impact occurred shortly after Prahl had abandoned Kuhl and Beutelspacher and two other passengers on the side of the highway.
From the testimony and other evidence produced at trial, the parties agree that the sequence of events leading up to the impact were as follows:
In the very late evening hours of August 6, 1977, or in the very early morning hours of August 7, 1977, Kuhl and Beutelspacher left Baltimore in a vehicle driven by Kuhl and were headed for Ocean City. Shortly after their departure, and in Glen Burnie, Appellants developed engine trouble which left them without a means of attaining their destination. Prahl stopped in Glen Burnie and offered Appellants a ride to Ocean City if Appellants would pay for gas and tolls. Appellants accepted the ride even though Beutelspacher, the only one of the Appellants to testify at the trial, conceded that he did not know Prahl. Between the point of departure from Glen Burnie and the time Appellants and Prahl had reached Cambridge, Maryland, Prahl apparently made a homosexual advance toward one if not both of the Appellants. Beutelspacher testified at trial, after his memory was refreshed from the transcript of his testimony in the criminal case against Prahl, about an advance Prahl made toward Kuhl including the extension of his hand across the gap between the front bucket seats of the vehicle to within an inch of Kuhl’s leg. In response to this, Kuhl picked up a hairbrush and held it above his right ear. Thereafter, Kuhl changed seats with Beutelspacher.
Shortly after the threesome had crossed the Choptank Bridge and continued on U.S. Route 50, Prahl, at the insistence of Appellants, stopped the vehicle to pick up two young ladies, Mary Benbow and Deborah Walker, who were hitchhiking on the side of the highway. After the fivesome had proceeded only some 5 or 10 minutes, Prahl stopped the vehicle on the shoulder of U.S. Route 50, so that everyone could get out to relieve himself (or herself). While the vehicle was stopped on the shoulder of U.S. Route 50, something developed between Prahl and Kuhl which resulted in Prahl being knocked to the ground with various of his possessions being scattered on the shoulder of U.S. Route 50. Prahl got up, ran to the vehicle and, thereafter, sped off eastbound on U.S. Route 50, leaving his four passengers stranded on the shoulder of the highway.
The two young ladies and Appellants began to walk eastbound on the shoulder of U.S. Route 50, hitchhiking as they went, with the two young ladies walking backwards facing the traffic and Appellants walking some distance ahead of them with their backs to the traffic. Only several minutes later and after the foursome had walked some 100 yards from the point where the altercation had occurred between Prahl and Kuhl, the vehicle driven by Prahl approached the hitchhikers. Prahl, who had sped off from the scene of the altercation, went "full circle” on U.S. Route 50 and now was headed back eastbound toward the pedestrians. As the vehicle approached the four pedestrians, and in the testimony of the two young ladies, the only ones in a position to observe the approaching vehicle, Prahl’s vehicle came right at them. Walker testified that the sound of the engine increased as the vehicle approached which she attributed to Prahl’s putting his foot on the gas. Benbow and Walker, who were facing the approaching vehicle, and although in fear for their lives, were able to get out of the way. Appellants, who were walking with their backs to the traffic, were struck. There were no skid marks at the scene of the impact and Prahl left the scene, without stopping, immediately after the impact.
Later that same day representatives of the Maryland State Police received a tip that Prahl had left the State of Maryland and had gone to Chester, Pennsylvania. The Police were able to contact Prahl in Chester and Prahl agreed to return to the Maryland State Police Barracks in Cambridge. There, after receiving Miranda warnings, Prahl signed a written statement, prepared by Sergeant Donald H. Cox of the Maryland State Police. In that statement, which Appellants proffered at trial, Prahl admitted striking Kuhl and Beutelspacher. Prahl was placed under arrest and subsequently tried and convicted in the Dorchester County District Court for assault and battery upon the persons of Kuhl and Beutelspacher. Prahl’s convictions were final.
At the trial in this case (and after the transcript of the criminal proceedings had been used to refresh the recollections of two witnesses, one of whom was Appellant Beutelspacher) Aetna offered into evidence a certified and true copy of the convictions and related docket entries of the District Court of Maryland for Dorchester County on the criminal charges of assault and battery upon the persons of Kuhl and Beutelspacher arising out of the events of August 7, 1977. Prahl had pled not guilty to the charges but declined to testify in his own defense at the criminal trial. Over objection of Appellants, the court admitted a certified copy of docket entries and convictions into evidence.
The Appellants in their case attempted to have Sergeant Cox (after he had testified to the circumstances preceding his questioning of Prahl and his taking of a written statement) testify as to what Prahl had told him as contained in the aforesaid signed statement, but the court sustained Appellee’s objection to such testimony. The Appellants then offered the signed written statement of Prahl taken by Sergeant Cox, but again, the court sustained Appellee’s objection to the statement. The statement was then proffered and marked for identification.
Defendant Prahl did not file an Answer to the Declaration nor did he make an appearance at trial. At the time of the trial, all parties understood him to be residing out of the State of Maryland.

The parties are in agreement that as a consequence of his act, Prahl was convicted in the District Court for Dorchester County of separate offenses for assault and battery upon the persons of Kuhl and Beutelspacher. Prahl was named as a defendant by Aetna in the declaratory judgment action and although he was served he neither filed an answer to the action nor made an appearance at trial.

At the close of appellants’ case at the initiative of appellants and appellee the trial judge submitted the following special verdict question to the jury: "Was the striking of Barry Kuhl and Stanley Beutelspacher expected or intended by Leonard Richard Prahl?” The jury answered the question in the affirmative.

It is from that special verdict judgment that this appeal was filed. Appellants raise the following three issues to be determined by these proceedings:

I. Did the lower court err in admitting into evidence a certified true copy of the conviction of Prahl together with related docket entries on criminal charges of assault and battery arising out of the same incident?
II. Did the lower court err in refusing to admit into evidence a signed written statement Prahl had given to the Maryland State Police approximately 12 hours after the incident resulting in injuries to appellants?
III. Did the lower court err in refusing to admit the oral testimony of a Maryland State Police Officer as to Prahl’s oral statement to said officer, which statement was memorialized in the written statement referred to in Issue II?

I.

At trial the presiding judge permitted the appellee, over objection, to place into evidence in the case in chief a certified copy of the docket entries in the District Court which established that Prahl had been accused of criminal charges of assault and battery arising out of the aforementioned incidents in this case. In addition, the trial judge, over objection, permitted the appellees in their case in chief to put into evidence a certified true copy establishing that Prahl was convicted of assault against each of the appellants. Appellants argue that the admission of these records into evidence was reversible error.

In support of their contention, appellants offer a number of cases decided by the Court of Appeals in which it was held that as a general rule a judgment in a criminal prosecution is not competent evidence to establish the truth of the facts in dispute in a civil action for damages occasioned by the offense of which the party stands convicted. See General Exchange Insurance Corporation v. Sherby, 165 Md. 1, 165 A. 809 (1933). In Sherby, the Court of Appeals expressed the reasons for the general rule as follows:

The reasons for this exclusion of the judgment in a criminal case as evidence of the plaintiff’s claim against the traverser are various. There is a weighty difference in the parties, objects, issues, procedure, and results in the two proceedings, with different rules with respect to the competency of the witnesses and the relevancy, materiality, and weight of the testimony. Wharton’s Criminal Evidence (10th Ed.), secs. 570-570d. In a civil proceeding, the act complained of is the essential element, but in a criminal prosecution it is the intent with which the act is done. There were, moreover, other considerations in support of the discretion exercised by the court. The charge before the justice of the peace in the criminal prosecution was there heard and determined upon the testimony then produced, and, although the accusation in the criminal trial involved to a certain extent the issue at bar in the civil action, the jury in the suit were functioning in a different procedure, wherein neither the witnesses, nor the testimony, nor the issues were necessarily the same; and where, although the defendant might nevertheless be guilty of the crime of reckless driving at the time of the happening of the accident, there were possible defenses in bar to the right to recover, such as plaintiffs’ contributory negligence, or that the defendant’s wrongful act was not the proximate cause of the injury. [165 Md. at 7].

See also Brooks v. Daley, 242 Md. 185, 218 A.2d 184 (1966); Eisenhower v. Baltimore Transit Co., 190 Md. 528, 59 A.2d 313 (1948).

In Galusca v. Dodd, 189 Md. 666, 57 A.2d 313 (1948), the Court of Appeals had before it an action for damages for assault and battery. The trial judge admitted evidence to show that the defendant had been arrested and charged, but excluded evidence that there was a trial and a conviction. In restating the rule governing such situations, the Court stated:

This Court has formulated the rule that, in the trial of a suit for damages for assault, evidence that the defendant has been tried and convicted for the assault in a criminal prosecution is inadmissible in chief for the purpose of proving the fact that the assault was committed, but such evidence may be admitted on cross-examination of the defendant. Baltimore & Ohio R. Co. v. Strube, 111 Md. 119, 125, 126, 73 A. 697; Pugaczewska v. Maszko, 163 Md. 355, 163 A. 205. In the case at bar the judge admitted evidence to show that defendant had been arrested on the criminal charges, but excluded evidence to show that there was a trial and conviction. The evidence which was admitted was not prejudical to defendant, even if irrelevant. We find no reversible error in the admission of this evidence or in allowing an officer to testify that plaintiff’s charges against defendant were entered on the docket at the Northern Police Station. [Emphasis added]. [189 Md. at 669].

Appellees have cited in support of the admissibility of the certified copies of the District Court judgments only one Maryland authority, Wald v. Wald, 161 Md. 493, 159 A. 97 (1931). In Wald, the Court of Appeals had before it a husband and wife who were engaged in a hotly contested divorce proceeding. The issue before the Court was whether the husband had deserted and abandoned his wife under such circumstances as would support the grant of a divorce decree to the wife on the grounds of desertion. During the course of the trial, the chancellor permitted the wife to offer into evidence, without objection by the husband’s counsel, proof by parol evidence of a number of successive prosecutions and convictions of the husband for desertion and non-support of the wife. In Wald, the Court of Appeals stated at p. 498:

As the result of these successive prosecutions, where the issue was an abandonment of the wife, sentences were imposed which have compelled the accused and convicted husband constantly to pay to his wife a specified monthly amount from 1922 to the bringing of his suit for divorce in 1929, when he was paying fifteen dollars every week for the support of his wife and infant daughter pursuant to a judgment of the Criminal Court of Baltimore City. Under the circumstances, these repeated judgments are convincing evidence of the husband’s wrongful abandonment of the wife. [Citations omitted].

There would appear to be a direct conflict between the holding in Wald and the other cases herein cited. Upon closer examination, however, we conclude that the controlling distinction between Wald and the general rule cited in Sherby, supra, and Galusca, supra, is the fact that no objection to the admissibility of the evidence was offered in Wald. In the absence of such objection, the evidence which came into the case was admissible. We cannot, however, speculate as to what the position of the Court of Appeals might have been in the event a seasonable objection had been offered. In view of the fact that the general rule was stated and restated substantially later than the holding in Wald, we conclude that the common law rule is still the law in this jurisdiction and that evidence of a judgment in a criminal prosecution is not competent evidence to establish mens rea, intent, or the truth of the facts upon which the criminal judgment has been granted, in a civil action for damages arising out of the offense for which the party was convicted. We conclude that the admission, over objection, of the certified copies of the criminal judgments in this case, was clearly prejudicial and amounted to reversible error.

II. and III.

Appellant next contends that the trial court erred in refusing to admit into evidence a signed written statement submitted to the police some twelve hours after the incident which resulted in injuries to the appellants. The pertinent portion of the statement given to the police by Prahl was stated as follows:

"As I pulled up where we had stopped before, one of the boys jumped out in front of me, I accidentally hit him and I panicked and drove on.”

We conclude that this statement was clearly hearsay evidence. Dean McCormick has suggested the following definition of hearsay:

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. McCormick, Law of Evidence § 246, p. 584 (2d ed. 1972).

The statement by Prahl was clearly a direct statement offered to prove the fact stated and was therefore dependent for its value upon the veracity of the declarant. McCormick, supra, at pp. 590-591.

Maryland has long recognized a declarant’s direct assertion of his state of mind is inadmissible, Groff v. Rohrer, 35 Md. 327 (1872); and an out-of-court declaration by the declarant of his own intent is inadmissible because the credibility of the declarant is controlling and crucial in determining intent. Bartell v. Bartell, 278 Md. 12, 357 A.2d 343 (1976).

Nor is Prahl’s statement admissible under any of the exceptions to the hearsay rule. It is not admissible as a business record under Maryland Code (1974, 1980 Repl. Vol.), Courts and Judicial Proceedings Article, § 10-101 b. The law is well established that items such as investigative reports from an accident are admissible under the business records exception only if the information therein contained is within the personal observation of the investigating officer and that any information based upon hearsay is inadmissible. See Holloway v. Eich, 255 Md. 591, 258 A.2d 585 (1969); Levine v. Beebe, 238 Md. 365, 209 A.2d 67 (1965). It is obvious that the matters contained in Prahl’s statement were not based upon the personal observation of the police sergeant.

The statement also is not admissible under the declaration against interest exception to the hearsay rule. In Houck v. DeBonis, 38 Md. App. 85, 379 A.2d 765, cert. denied, Conklin v. Maryland, 434 U.S. 967, 98 S.Ct. 511, 54 L.Ed.2d 454 (1977), we stated the requirements necessary to qualify the admissibility of hearsay evidence under this exception as follows:

The requirements have been variously enumerated, but generally include that the declarant be unavailable at the time of trial, that the statement was made against his pecuniary or proprietary interests, that the declaration concerned a fact or event immediately cognizable by the declarant personally, and that no probable motive to falsify the facts existed when the statement was made. [Citation omitted]. [Footnote omitted]. [38 Md. App. at 91].

Applying these standards, it is readily apparent to us that Prahl’s statement does not qualify for admissibility under this exception to the hearsay rule. We conclude that the statement is not a declaration contrary to Prahl’s pecuniary or proprietary interest but is a self-serving declaration which must be excluded. Evans v. Buchanan, 183 Md. 463, 38 A.2d 81 (1944).

Prahl’s statement was not admissible as an admission of a party opponent. This exception to the hearsay rule contemplates the use of purported admissions against the person making the admission or against those persons who are bound by the admission. McCormick, supra, at pp. 628, 631, states:

Admissions are the words or acts of a party-opponent, or of his predecessor or representative, offered as evidence against him.
Other apparent distinctions [between admissions and declarations against interest] are that admissions must be the statements of a party to the lawsuit (or his predecessor or representative) and must be offered, not for, but against him... .

We find no basis for allowing the appellants to employ the self-serving statement of Prahl, an absent co-defendant, against appellee Aetna on the theory that the statement is an admission against the interest of a party-opponent.

Finally, we do not accept appellants’ effort to bring Prahl’s statement under the "state of mind” hearsay exception. The Maryland decisions establish conclusively that "the state of mind exception” applies exclusively to statements of a present existing state of mind or statements concerning a plan, design, or intention presently entertained by the declarant. See Maryland Paper Products Company v. Judson, 215 Md. 577, 139 A.2d 219 (1958); Pennsylvania Railroad Company v. Simmons, 159 Md. 114, 150 A. 263 (1930).

Even if Prahl’s statement that he accidentally hit one of the appellants could be construed as a declaration of state of mind, it could not serve as the basis to admit, over objection, a self-serving statement of alleged intent of an act which occurred twelve hours earlier. See Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933).

We find no error in the trial court’s ruling on the admissibility of Prahl’s statement to the police officer or upon the oral information given to the officer from which the written statement was prepared.

Judgment reversed, case remanded for new trial, costs to be paid by appellee.


author: Moore, J.,

text:
    J. THOMAS SEGROVES et al. v. SUPERVISOR OF ASSESSMENTS FOR HARFORD COUNTY
    [No. 670,
    September Term, 1981.]

      Decided May 5, 1982.

    The cause was argued before Morton, Moore and Lowe, JJ.
    Submitted on brief by John P. Walsh for appellants.
    Argued by T. Scott Basik, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellants have tried for four years to elude the impact of Art. 81, § 8 (7) (a), Md. Ann. Code (1980 Repl. Vol.) by appealing the tax assessments on their respective homes to the Property Tax Assessment Appeal Board, the Maryland Tax Court, the Circuit Court for Harford County (Higinbothom, J.), and now this Court. Their persistence may be commendable, but their arguments are as lacking in merit today as they were at the beginning. The provision they seek to escape plainly embraces them; accordingly, we shall affirm the court below.

I

The Eastern Christian College bought 44 acres in Bel Air, Harford County, Maryland, in 1961. Two small parcels of land were leased to appellants, J. Thomas Segroves and Paul Bajko, in 1964 for 99 years. The purpose of the leases was to allow Mr. Segroves, who was then president of the college and is now chancellor, and Mr. Bajko, who directs the college’s Department of Missions, to obtain the financing with which to build their homes. The leases provide that appellants are responsible for property taxes and that the college has the right to purchase Mr. Segroves’ house if he leaves the college and Mr. Bajko’s house if he ceases Christian missionary work. Until 1976, the appellants enjoyed an exemption from assessment and property tax as part of the college’s educational exemption under Art. 81, § 9 (e). This was corrected in 1976 when a new county Supervisor of Assessments determined that the leaseholds were in fact owned by the appellants, not the college, and thereafter denied their requests for exemptions.

II

Appellants have devoted their efforts on appeal to three contentions:

1) The equitable and beneficial owner of the properties in question is the Eastern Christian College, a tax-exempt educational institution, because it is in possession and control under Art. 81, § 4 (c).
2) The properties are used exclusively for religious and educational purposes, are essential and vital to the college’s operation, and thus should be exempt from taxation under Art. 81, § 9 (a) and (e).
3) The effect of taxing the properties would be to allow the appellants to indemnify themselves from the college under Art. 81, § 4 (c) and such indemnity would constitute an indirect tax on a religious educational institution, contrary to Art. 81, § 9 (a) and (e).

Each of these contentions simply ignores the statutory provisions. First, Eastern Christian College relinquished any entitlement to exemption of the properties by signing 99-year leases with appellants. Art. 81, § 8 (7) (a) is clearly applicable:

(7) Leaseholds and other limited interests in real or personal property. — No leasehold or other limited interest in real or tangible personal property shall be subject to taxation except the following which shall be subject to taxation in the same amount and the same extent as though the person in possession or the user thereof were the owner of such property.
(a) The interest of a tenant under a ninety-nine year lease of real property within this State, whether or not renewable, or under a lease for a shorter term which is perpetually renewable. (Emphasis added.)

The holder of the leasehold interest for 99 years is treated in the same manner as if he were the owner of the property. Here, even though the college has some control over the properties through its right of conditional purchase, the appellants as 99-year lessees are legal owners and in possession. Thus, they are chargeable with the taxes thereon as owners of the fee. Art. 81, § 4 (c) has no application.

Second, use of the properties is entirely irrelevant, simply because the appellants, as owners under § 8 (7) (a) are not "institutions or organizations” under Art. 81, § 9 (e):

(a) Generally; exemptions strictly construed. — The following real and tangible personal property are exempt from assessment and from State, county, and city ordinary taxation, except as otherwise stated, which exemptions shall be strictly construed:
(e) Charitable, benevolent, and educational property. — Property owned ... by (2) any nonprofit charitable, fraternal or sororal, benevolent, educational, or literary institutions or organizations,... (Emphasis added.)

Exemptions are of necessity strictly construed. Perdue, Inc. v. State Department of Assessments and Taxation, 264 Md. 228, 286 A.2d 165 (1972). Language as clear and unequivocal as that in Art. 81, § 9 (a) and (e) brooks no quibbling over meaning. Appellants are employed by an educational institution; they are not the institution itself. The provision does not exempt employees.

Third, we fail to discern the applicability of Art. 81, § 4 (c). That section provides in pertinent part:

"The State Department of Assessments and Taxation is hereby authorized to determine by regulations in what ... class ... of cases a person in possession or control, whether as lessee ... or otherwise, of real... property ... owned by another person shall or may be treated ... as the owner of such property for purposes of ordinary taxation. A person who ... is treated as the owner of property owned by another person and pays the taxes thereon shall, unless otherwise provided by private contract ... have a right to indemnity from the owner....”

This subsection merely authorizes the Department to treat certain lessees as owners. It in no way changes "what shall be taxed and where” under Art. 81, §§ 8 and 9. Furthermore § 4 (c) states that the lessee is not entitled to indemnity from the owner if a private contract provides otherwise. Appellants’ leases require them to pay all taxes. Therefore, they are not entitled to indemnity from the college, and there is no indirect taxation of the college.

Judgment affirmed.

Appellants to pay the costs.

      . The properties were assessed as follows:
      J. Thomas Segroves 1976- 77 — $23,550 Paul Bajko 1976- 77 — $23,180
      1977- 78 — 24,540 1977- 78 — 24,140
      1978- 79 — 23,200 1978- 79 — 22,820
      1979- 80 — 30,840 1979- 80 — 30,340

      . In Macht v. Department of Assessment, 266 Md. 602, 296 A.2d 162 (1972), the court noted that by fixing the lease term at 98 years and 9 months . the parties carefully skirted Art. 81, § 8 (7) (a). Id. at 615, 296 A.2d 162. As was pointed out in oral argument a different leasing arrangement could conceivably change the status of the parties and invoke the exemption provision of Art. 81, § 9 (e).

      . This provision authorizes the State Department of Assessments and Taxation to treat certain lessees as owners. It does not change what property is taxable or who must pay the taxes. Here, appellants are the legal owners under Art. 81, § 8 (7) (a). They urge that § 4 (c) allows an exemption of property otherwise taxable under § 8 (7) (a). However, § 4 (c) is a rule of convenience for the taxing authorities. Martin Co. v. State Tax Commission, 225 Md. 404, 171 A.2d 479 (1960). It does not confer discretion on the Department to abrogate the plain meaning of § 8 (7) (a).

      . The court found that "portions of each home are used for college purposes, such as meetings, conferences and also classroom instruction.” But use of the property would be relevant only if the college owned it.


author: Thompson, J.,

text:
    RICHARD G. SCHATZ, etc. et al. v. YORK STEAK HOUSE SYSTEMS, INC.
    [No. 840,
    September Term, 1981.]

      Decided May 5, 1982.

      The cause was argued before Thompson, Liss and  Couch, JJ.

      John C. Evelius for appellants.

      Daniel J. Moore, with whom were James D. Peacock and Semmes, Bowen & Semm.es on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Appellant Kimberly Schatz, the seventeen-year-old daughter of Richard and Dawn Schatz, also appellants, was employed as a waitress by the York Steak House Systems, Inc., the appellee, at its Westview Mall restaurant in Baltimore County, Maryland. On the evening of July 10, 1980, she was at her employer’s restaurant performing her regular duties during her scheduled work hours, i.e., assisting with the preparations for the nightly closing. While performing these duties she was raped by James Leslie, the assistant manager at York’s Westview Restaurant. As an assistant manager, he was responsible for preparing the restaurant for lunch, removing frozen food from the freezers, checking the table setups, readying cooking utensils and equipment, and opening and closing the restaurant. There was evidence that Leslie had the authority to fire waitresses; however, his responsibilities did not include the authority to enter into contracts or agreements. He was not a director, officer or shareholder of York. He was one of 119 assistant managers employed by York nationwide. His services were terminated as a result of the rape.

Miss Schatz brought suit to recover for her physical and psychological injuries. Her parents joined in the suit to recover medical bills and loss of filial companionship of their daughter. Judge John E. Raine, Jr., of the Circuit Court for Baltimore County granted York’s motion for summary judgment on the basis that recovery by the employee or her parents was limited to that provided in the Workmen’s Compensation Law with which York had fully complied.

I

Miss Schatz contends that she is entitled to elect to receive the benefits of the Maryland Workmen’s Compensation Act or to proceed with this suit at common law under Md. Code Art. 101, § 44 which provides as follows:

"If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child, children or dependents of the employee shall have the privilege either to take under this article or have cause of action against such employer, as if this article had not been passed.”

She maintains the trial judge erred in entering summary judgment because there was a dispute as to whether Leslie was a vice-principal. She relies on several Maryland cases which define a vice-principal as a fellow servant who exercises some recognized common law non-delegable duty of the master. Wood v. Abell, 268 Md. 214, 300 A.2d 665 (1973); Jarka Company v. Gancl, 149 Md. 425, 131 A. 754 (1926); Ches. Stevedoring Co. v. Hufnagel, 120 Md. 53, 87 A. 4 (1913); Frizzell v. Sullivan, 117 Md. 388, 83 A. 651 (1912).

Whether assistant manager Leslie was or was not a vice-principal is irrelevant in view of the intentional nature of his acts. The cases cited by the appellant hold that an employer can be liable for the negligent acts of a vice-principal, a theory premised on an application of the principles of vicarious liability to workplace accidents. No Maryland court has held that the intentional acts of a vice-principal can be attributed to the employer. The majority of jurisdictions that have considered the question have held that absent express authorization by the employer, the agent must be the "alter ego” of the employer in order for his intentional misconduct to be attributed to the employer. See, Jablonski v. Multack and Max Lee Corp., 63 Ill.App.3d 908, 380 N.E.2d 924 (1978); McGrew v. Consolidated Freightways, Inc., 141 Mont. 324, 377 P.2d 350 (1963); Bryan v. Utah International, Utah, 533 P.2d 892 (1975). The rationale of these decisions has been succinctly expressed by Professor Larson, in The Law of Workmen’s Compensation, § 68.21 (pp. 13:10-11 1976) in which he said:

"When the person who intentionally injures the employee is not the employer in person nor a person who is realistically the alter ego of the corporation, but merely a foreman, supervisor or manager, both the legal and the moral reasons for permitting a common-law suit against the employer collapse, and a substantial majority of modern cases bar a damage suit against the employer.
The legal reason for permitting the common-law suit for direct assault by the employer, as we have seen, is that the same person cannot commit an intentional assault and then allege it was accidental. This does not apply when the assailant and the defendant are two entirely different people. Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person. Realistically, it to him is just one more industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.” (footnote omitted)

We find this reasoning more compelling than the assertions of the appellants that the intentional act of a vice-principal should be imputed to the employer even though it was committed contrary to the wishes of the employer.

In view of the intentional misconduct by the assistant manager, the trial court properly focused upon whether he could be characterized as an alter-ego of his employer and not upon whether he fit within the common law concept of a vice-principal. On these questions there is no dispute as to the facts, thus, there was no error in the granting of summary judgment.

II

Miss Schatz also contends that the injuries resulting from rape are not covered by Workmen’s Compensation because they did not arise out of her employment. The precise argument is that the words "third person” contained in Md. Code Art. 101, § 67 (6) does not include a fellow employee. That section provides as follows:

"... only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally result therefrom, including frostbite and sunstroke resulting from weather condition, occupational disease and includes an injury caused by the wilful or negligent act of a third person directed against an employee in the course of his employment.”

She contends that inasmuch as three Maryland cases discuss the existence of coverage for employees injured by third persons who were not employees, the Act excludes co-employees as third persons. See, Edgewood Nursing Home v. Maxwell, 282 Md. 422, 384 A.2d 748 (1978); Giant Food v. Gooch, 245 Md. 160, 225 A.2d 431 (1967); Smith v. General Mot. Assemb. Div., 18 Md. App. 478, 307 A.2d 725 (1973). Appellant urges, "None of these cases involved a co-employee, and there is nothing in the language of the opinions to indicate that the definition of a 'third person’ would include a co-employee.” In making this argument the appellant ignores the dicta in Zentz v. Peters & Taylor, Inc., 11 Md. App. 1, 272 A.2d 430 (1971) and other provisions of the Act which set forth a clear indication that the term "third person” encompasses a co-employee. In Zentz, an employee was injured in a fight at work with a co-employee. This court affirmed the denial of compensation benefits to the appellant, finding that the injury was proximately caused by intoxication. The appellant had argued, inter alia, that the lower court erred in failing to find that the employee’s injuries were compensable under § 67 (6) of the Act. Although we did not expressly hold that a co-employee was a third person for purposes of § 67 (6), such conclusion finds support in dicta, since application of the intoxication exclusion presupposes that the injury sustained was otherwise compensable. Such interpretation was made by the District of Columbia Court of Appeals in Decius v. Marriott Corp., 402 A.2d 841 (1979). That court, construing Maryland law, expressly held that a co-employee was a third person under § 67 (6). The court, citing Zentz, stated at 844:

"[C]o-employees have been held to be 'third persons’ for the purposes of the term 'willful or negligent act of a third person directed against an employee in the course of his employment.’ Zentz v. Peters & Taylor, Inc., 11 Md. App. 1, 272 A.2d 430 (1971).”

It appears that the Act itself provides authority for a finding that a co-employee is a "third person.” Section 58 codifies the injured employee’s right to proceed at law against any third person who causes the injury and gives the payor of compensation benefits a right of subrogation against such a third person. This section defines "third person” as anyone who is neither the employer nor the injured employee. Inasmuch as provisions of the Act should be construed together, "third person” should be given the same construction throughout. Subsequent Injury Fund v. Chapman, 11 Md. App. 369, 274 A.2d 870, aff'd. 262 Md. 367 (1971). We conclude that the definition of third person encompasses a co-employee of the injured worker.

Ill

The appellants Richard and Dawn Schatz assert a separate claim for medical expenses incurred on behalf of the daughter as the result of the rape. Those injuries, as we have indicated, are covered by the Workmen’s Compensation statute which is exclusive; therefore, the trial judge was quite proper in granting a summary judgment for the defendant. See Md. Code Art. 101, § 15.

The parents also assert a claim for loss of filial companionship as a result of their daughter’s rape. The Court of Appeals in Deems v. Western Maryland Ry., 247 Md. 95, 114, 231 A.2d 514, 525 (1967) expressed a reluctance to expand a married couple’s right of recovery for loss of consortium to encompass recovery rights for the emotional injuries suffered by other family members. The court stated:

"Under the [legal entity] concept, there is not involved the possible right of other members of the injured person’s family to recover for intangible losses, with possible inordinate expansion of a defendant’s liability for damage resulting from his negligence; the right is confined to injury to the joint relational interest of the spouses.”

In the face of such a strong statement by the Court of Appeals we would be most reluctant to expand claims for filial companionship even if we were inclined to do so, which we are not.

Judgment affirmed.

Appellants to pay the costs.

      . Art. 101, § 58 provides, in pertinent part:
      "Where injury or death for which compensation is payable under this article was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee ... may proceed either by law against that other person to recover damages or against the employer for compensation under this article, or in the case of joint tortfeasors against both;” (emphasis added)

      . The Act would bar filial claims if any existed.


author: Moylan, J.,

text:
    LITTLE STORE, INC. v. STATE OF MARYLAND
    [No. 999,
    September Term, 1981.]

      Decided May 5, 1982.

    The cause was argued before Moylan, Liss and Weant, JJ.

      William E. Seekford for appellant.

      Jane E. Pilliod, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State's Attorney for Baltimore City, and John N. Prevas, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Little Store, Inc., a corporation, was found guilty by a Baltimore City jury, presided over by Judge Alan M. Resnick, of distributing an obscene publication. It was sentenced to pay a fine of $1,000. Upon this appeal, the appellant raises two contentions:

1. That Judge Resnick erroneously instructed and failed to instruct the jury in that:
(a) He refused to give certain instructions requested by the appellant;
(b) He erroneously provided two alternative definitions of the phrase "prurient interest”;
(c) He erroneously defined the word "obscene”; and
2. That he erroneously failed to declare a mistrial following certain allegedly inflammatory and prejudicial statements made by the prosecutor in the course of closing argument.

The facts of the case are actually immaterial to any issue raised on this appeal and it is, therefore, needless to recite them.

At the close of the case, the appellant submitted twenty-six requested jury instructions to the court. He now complains that Judge Resnick either failed to give or incorrectly gave his instructions Nos. 2, 9, 11 and 14. Instructions 2, 9 and 11 go to the constitutional definition of obscenity. We hold that Judge Resnick correctly defined obscenity for the jury and the fact that he did so in his own words rather than in the words proposed by the appellant is of no moment. Instruction No. 11 read:

"The Court instructs the jury that a film is not obscene merely because it depicts a relationship which is contrary to the religious precepts of the community.”

Judge Resnick did not give this instruction and we conclude that he was perfectly correct in not giving it. There was no genuine issue in this case dealing with "the religious precepts of the community” and the instruction would have served to inject a totally foreign issue into the proceedings.

In two respects, the appellant objects to the definition of obscenity that was given. The test that has constitutionally developed breaks down essentially into three parts, stemming respectively from Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304,1 L.Ed.2d 1498 (1957); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), as modified in several regards by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). That three-part test, as it now stands post-Miller, was stated in Miller, at 413 U.S. 24:

"The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying, contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” (Citation omitted).

One of the appellant’s contentions concerns the third component of obscenity — that it lack the redeeming value that would exempt it from the law’s proscription even if it were both prurient and patently offensive. When that third component entered the obscenity law in 1966 through Memoirs v. Massachusetts, supra, it was phrased in terms of the obscene work being "utterly devoid of any redeeming social value.” (Emphasis supplied). By 1973, the Supreme Court had concluded that this was too great an obstacle for the State to have to overcome. It lowered the showing that had to be made by the State to one simply of establishing that the work in question was without "serious literary, artistic, political, or scientific value.” (Emphasis supplied). 413 U.S. at 24. Judge Resnick in the present case gave that third component precisely in the terms of Miller v. California. He pointed out that to be obscene the work in question must "lack serious literary, artistic, scientific or political value.” The appellant now urges that this definition is incorrect in that it uses the disjunctive "or” instead of the conjunctive "and.” He seems to argue that a hypertechnical jury bent on censorship might find obscene a work such as "Hamlet,” of profound literary value, because it is devoid of scientific value; a work such as Das Kapital, of profound political value, because it is devoid of artistic value; a work such as The Origin of the Species, of profound scientific value, because it is devoid of political value. The appellant strains at gnats. He is perhaps hypertechnically correct that when elements are set out in a statute or interpreted in the Constitution in the disjunctive, they should be translated into the conjunctive in an indictment or a jury instruction. Although philosophers might wrangle interminably over the subtle difference between an "and” and an "or,” we cannot conceive of the jury in this case undertaking so meticulous an exegesis of the judge’s every syllable. This is fastidious parsing by way of afterthought and did not, we are mathematically certain, enter into the jury’s thought process in the slightest way.

The next contention deals with the definition of the word "prurient.” There is an aura of unreality about this argument. While lawyers, after the fact at least, anguish endlessly over every subtle semantic nuance in a lengthy, convoluted and essentially unintelligible definition, lay jurors exercising their common sense are almost certainly reacting in the manner of Justice Stewart in Jacobellis v. Ohio, supra, when he remarked that "perhaps I could never succeed in intelligibly” defining obscenity "but I know it when I see it.” The futility of the exercise becomes more apparent when it is realized that what is really being defined is the word "obscene.” "Prurient” is just one of the many terms used to define obscenity, but it, in turn, requires its own definition. There is no consensus as to what it means. As Justice Stewart pointed, out in his concurring opinion in Jacobellis v. Ohio, at 378 U.S. 197:

"It is possible to read the Court’s opinion in Roth ... in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable.”

When Roth v. United States, supra, first used the term "prurient” in its definition of obscenity, it added an explanatory footnote, at 354 U.S. 487, n. 20, to define "prurient”:

"I. e., material having a tendency to excite lustful thoughts. Webster’s New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows:
'* * * Itching; longing, uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd * *
Pruriency is defined, in pertinent part, as follows:
'* * * Quality of being prurient; lascivious desire or thought. * * *’
See also Mutual Film Corp. v. Industrial Com., 236 U.S. 230, 242, 35 S.Ct. 387, 390, 59 L.Ed. 552, where this Court said as to motion pictures:
'* * * They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to* * (Emphasis added.)
We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, §207.10(2) (Tent. Draft No. 6, 1957), viz:
'* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *’ See comment, id., at 10, and the discussion at page 29 et seq.”

This is the last word from the Supreme Court on the word "prurient” and its meaning is far from clear.

The State wanted to communicate to the jury the notion that "prurient” meant having a "tendency to excite a normal lustful interest in sex,” whereas the defense wanted to communicate the notion that "prurient” connoted a "morbid or abnormal interest in sex.” The trial judge took Stevenson v. State, 289 Md. 167, very much to heart and deemed this to be one of those rare occasions when a jury is legitimately the judge of the law. The judge noted that there were conflicting definitions of the law of the crime and he submitted the problem to the jury for its resolution:

"You are the judges of both the laws and the facts ... I am saying that to you and now I am going to give you two definitions of the word prurient and you are to decide which of the definitions to accept. You can’t accept both, it must be one or the other. (1) A tendency to excite normal lustful interest in sex, and (2) an itching, longing, uneasy with desire or longing or morbid or abnormal interest in sex. These are the two definitions for prurient interest, and you are to accept one. After you accept one, that is the element number one which must be proven beyond a reasonable doubt.”

Since neither definition would in our judgment offend the Constitution, we see no error.

The appellant’s second contention is that Judge Resnick twice erroneously failed to declare a mistrial following allegedly inflammatory and prejudicial remarks made by the prosecutor in his closing argument to the jury. On both occasions, the judge advised the jury to disregard the remarks of the prosecutor but felt that a mistrial was hardly called for. Every error does not call for so drastic a sanction and our system vests in the trial judge a wide discretion in determining the necessity for a mistrial. We see no abuse of that discretion here.

Judgment affirmed; costs to be paid by appellant.

      . For a thorough and a scholarly analysis of the evolving concept and definition of obscenity at both the state and national level, see Judge Wilner’s discussion for this Court in 400 East Baltimore Street v. State, 49 Md. App. 147, 156-157 (1981).