author: MacDaniel, J.,

text:
    THOMAS MICHAEL BROWN and CHARLES WILLIAM SUMMERS v. STATE OF MARYLAND
    [No. 523,
    September Term, 1981.]

      Decided February 4, 1982.

    The cause was argued before Gilbert, C. J., and Moore and MacDaniel, JJ.

      Clarence W. Sharp, Assigned Public Defender, for appellants.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, J. Donald Braden, State’s Attorney for Queen Anne’s County, and Michael Foster, Assistant State’s Attorney for Queen Anne’s County, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

Thomas Michael Brown and Charles William Summers, appellants, were convicted by a jury in the Circuit Court for Queen Anne’s County of (1) breaking with an intent to steal property valued at over $300; (2) malicious destruction of property, and (3) rogue and vagabond. Summers was sentenced to nine years imprisonment for the breaking conviction, with concurrent one year sentences for the malicious destruction and rogue and vagabond convictions. Brown was sentenced to eight years on the breaking conviction, with concurrent one year sentences for the malicious destruction and rogue and vagabond convictions.

Appellant Summers contends the trial court committed reversible error by denying his request for a postponement.

Both appellants contend:

1. The evidence was insufficient to sustain all convictions.
2. The offenses of malicious destruction of property and rogue and vagabond merge into the offense of breaking with intent to steal property valued at over $300.
3. They were denied their constitutional right to counsel when the trial court forced them to proceed with the trial without the aid of counsel.

We find all contentions without merit and shall affirm.

The facts are uncomplicated. The manager of an Exxon station and repair shop in Queen Anne’s County, concerned over recent burglaries returned to the station — after it had been secured and closed for the day — with the express purpose of preventing any further burglaries. He arrived about 10:00 p.m. and got into a parked car where he could observe the premises. At approximately 12:15 a.m., he observed two men, one carrying a five-gallon bucket of water, come to the front of the station from the restrooms. One of the men hid behind a car while the other climbed on a pile of junk under a window, looked inside, and then broke the window. As that man was reaching inside the broken window, the manager, armed with a rifle, apprehended the two men. A state trooper arrived shortly thereafter and placed the two men, identified as the appellants herein, under arrest. Appellants explained their actions to the state trooper as necessary for them "to get another container to put water in for their disabled car.” The trooper ascertained that an alleged disabled vehicle containing two passengers was parked about one-quarter of a mile from the station.

We shall first address appellant Summers’ contention that the lower court erred in refusing to grant a postponement. Two motions for continuance had been previously granted to Summers (February 21, 1980 and April 28, 1980), when, on July 8, 1980, Summers again requested a postponement of the trial scheduled for July 9, 1980. This request was based upon the fact that Summers’ mother was in a coma and expected to die. When considering a motion for postponement, the trial court is governed by Maryland Rule 746 (b) which states:

"Upon motion of a party made in writing or in open court and for good cause shown, the county administrative judge or a judge designated by him may grant a change in trial date.”

Appellant argues that the condition of his mother constituted "extraordinary cause” necessitating a postponement, a denial of which constituted a clear abuse of the trial court’s discretion.

The trial court ascertained that the doctor could not predict how long Summers’ mother would live, the case had been postponed twice before, the expected trial time was one day, and decided that if she died before trial a postponement would be granted. Based upon these facts we cannot say that the trial court’s denial of the requested postponement amounted to a clear abuse of discretion. State v. Hicks, 285 Md. 310 (1979); Chance v. State, 45 Md. App. 521 (1980).

We shall now address the three contentions made jointly by appellants.

I. Sufficiency

Appellants contend that the proof of breaking with the intent to steal goods of the value of over $300 was insufficient to convict because of a lack of proof of felonious intent. The intent here was proven by the circumstances — climbing upon a pile of junk to reach and break a window in the middle of the night at a closed gasoline station containing goods inside in excess of the value of $300. It is not necessary that goods actually be taken to prove the intent to steal. Herbert v. State, 31 Md. App. 48 (1976); Sparkman v. State, 3 Md. App. 527 (1968). Appellants also argue that their explanation that "they were merely attempting to obtain a container from within the building to obtain water for their disabled car,” was sufficient to override the finding of felonious intent needed for conviction. This is totally without merit. Appellants ignore the evidence that at the time of their apprehension they were already carrying a five-gallon container filled with water. Without appellants’ explanation the evidence was sufficient to convict; with the explanation the trier of fact had a right to disbelieve and so convict. Brown v. State, 39 Md. App. 497, 506 (1978).

Regarding the rogue and vagabond convictions, appellants likewise assert that the State failed to prove the requisite intent. This argument is specious. The evidence which supported the intent for the breaking also amply supported the intent for the rogue and vagabond convictions.

Appellants next assert a failure by the State to produce sufficient evidence to prove a willful or malicious intent to destroy, injure or molest property to support their convictions for malicious destruction of property. Here, appellants did break the window. They claim otherwise, but the jury chose to disbelieve their explanation and found that their intent was to break the window to steal. This evidence was sufficient to support the convictions. Spears v. State, 38 Md. App. 700 (1978).

II. Merger

Appellants maintain that the offenses of malicious destruction of property and rogue and vagabond merge with the offense of breaking with intent to steal property valued over $300.

In Rose v. State, 37 Md. App. 388, 393-94 (1977), cert. denied, 281 Md. 743 (1977), this Court said:

"While we have often refused to decide a question of merger which has not been raised or decided in the trial court in cases in which concurrent terms were imposed, we have not declined to consider such questions in cases in which consecutive terms were imposed.” (Footnotes omitted.)

Here, the terms imposed were concurrent. Since this issue was not raised below, it is not properly before us. Maryland Rule 1085; Johnson v. State, 38 Md. App. 306 (1977); Colbert v. State, 18 Md. App. 632 (1973); Moore v. State, 15 Md. App. 396 (1972).

III. Waiver of Right to Counsel

It is well established that a defendant in a criminal prosecution has two independent constitutional rights with regard to the management of his defense.

The right to the assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution. See, e.g., Argersinger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963).

A defendant in a criminal case also has a constitutional right to proceed without counsel, so long as certain well-defined procedural safeguards are complied with. See Faretta v. California, 422 U.S. 806 (1975).

Whenever a defendant proceeds without the assistance of counsel, either because he has affirmatively waived his right to counsel or has waived his right to counsel by conduct, there must be an appropriate inquiry on the record in open court, under the procedural safeguards required by Maryland Rule 723.

Maryland Rule 723 states:

"a. Appearance of Defendant.
A defendant shall appear in person at the time and place specified in the summons or other writ issued pursuant to Rule 720 (Original Summons, Warrant and Notice to Appear), unless his counsel enters an appearance for him in writing on or before the time. If the defendant fails to appear personally or by counsel, the court may direct the clerk to issue a warrant for his arrest or to reissue the summons for personal service on the defendant,
b. Appearance Without Counsel.
When a defendant appears pursuant to section a of this Rule and is not represented by counsel, the court shall:
1. Make certain that the defendant has received or receives a copy of the charging document;
2. Advise the defendant that he has a right to be represented by counsel at every stage of the proceedings;
3. Advise the defendant of the matters required by subsections 1, 2 and 3 of section c of this Rule;
4. Advise the defendant who desires counsel that he must retain the services of counsel and have counsel enter an appearance for him within 15 days;
5. Advise the defendant that if he finds he is financially unable to retain the service of private counsel, he should apply to the Public Defender as soon as possible for a determination of his eligibility to have counsel provided for him by the Public Defender;
6. Advise the defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel pursuant to Article 27A, section 6 (f), of the Maryland Code;
7. Advise the defendant that if counsel does not enter an appearance within 15 days, a plea of not guilty will be entered pursuant to section b 3 of Rule 731 (Pleas), and the defendant’s case will be scheduled for trial. The court shall also advise the defendant that if he appears for trial without counsel, the court could determine that he has waived his right to counsel by neglecting or refusing to retain counsel or to make timely application to the Public Defender for counsel, and in that event, the case would proceed with defendant unrepresented by counsel.
c. Waiver Inquiry.
When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:
1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;
2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;
3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;
4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.
d. Procedure After Waiver Inquiry.
1. If the court accepts the waiver of counsel pursuant to section c of this Rule, it shall direct that a trial date be scheduled.
2. If the defendant appears in court without counsel, at any proceeding after his appearance pursuant to section a of this Rule, the court may not proceed before determining whether the defendant at that time desires to waive counsel, or has waived counsel, either affirmatively or by neglecting or refusing to obtain counsel.
e. Record of Compliance.
The advice of the court given pursuant to sections b and c of this Rule and the finding that the defendant waived counsel pursuant to sections c and d of this Rule shall be made on the record in open court. The docket entries shall affirmatively show compliance with this Rule.”

In the case sub judice, appellants appeared at their arraignment on October 11,1979, without counsel and were properly advised at that time of their rights under section b of Rule 723. Sometime after their arraignment, the public defender entered his appearance on behalf of the appellants and the case was set for trial on February 21, 1980. On the day of trial, appellant Brown indicated to the court that he did not wish to proceed with trial in the absence of appellant Summers. The court granted the postponement and rescheduled the trial for April 28,1980. Appellants appeared for trial with the Public Defender. This time a postponement was requested to allow appellants to retain private counsel. The trial court granted the postponement and cautioned the appellants:

"THE COURT: All right, gentlemen, the case will be continued until July 9th at ten o’clock in the morning. That should give you adequate time to get an attorney, and the Court is going to advise you again that you are entitled to be represented by an attorney of your choice, and you have certain rights — in other words, what I’m doing is repeating what the court advised you when you appeared before Judge Everngam, that you have a right to be represented by a private lawyer, and if you can’t afford a private lawyer, and it’s concievable [sic] to the Court that you might not be able to raise all the funds to get a private lawyer, then you should promptly return to the public defender and reapply to the public defender.
As I have said before, an attorney can render important assistance to you in determining whether there are defenses to the charges or circumstances in mitigation thereof and preparing and representing you at the trial, and even if you decided later to plead guilty, an attorney may be of substantial assistance in the sentence or other disposition.
Of course, as I have indicated before, if you still find you are financially unable to retain a private lawyer, the public defender or court would, if you desire and wish, provide an attorney to represent you.
Now, if there is to be any change in your address, you must promptly notify the clerk of this court, and you go back to the public defender if you can’t get a private lawyer because of financial reasons, and if he refuses or declines to appoint another lawyer to represent you, then you must promptly notify the clerk of this court so the court can decide whether to appoint a lawyer to represent you. Do you understand what I’m saying, gentlemen?
MR. SUMMERS: Yes, sir.
MR. BROWN: Yes, sir.
THE COURT: This, of course, is all given in open court in the presence of the accused, and the docket entries should affirmatively show that this complies with Maryland Rule 723[a].
I want you to fully understand that if you come into court on the next trial date or any other date for some reason or another and you don’t have a private lawyer or public defender to represent you, you are going to have to be prepared to represent yourself at the trial, is that clear?
MR. BROWN: Yes.
MR. SUMMERS: Yes.” (Emphasis added.)

Appellants admit that they were advised by the court of the procedural safeguards contained in Rule 723 and the possible ramifications that could befall them under § b (7) (by neglecting or refusing to retain counsel.)

Appellant Summers appeared before the court without counsel on July 8, 1980, and requested a postponement, which was denied. He advised the court at that time that his attorney would be present the following day for trial.

On July 9, 1980, both appellants appeared for trial without counsel and the following colloquy took place:

"THE COURT: The Court further notes that they have appeared here today without the benefit of an attorney and before we proceed the Court should make inquiry as to why they come into court today without having an attorney to represent them.
Let me see what that rule is 723[d]. It provides if the defendant appears in court without counsel at any proceeding after his first appearance before the court, the court may not proceed before determining whether the defendant at that time desires to waive counsel or has counsel or has waived counsel either affirmatively or by neglecting or refusing to obtain an attorney.
You do appear, gentlemen, without counsel. You want to explain to the court why, particularly in light of the fact we continued the case on April 28th because you asked or said you wanted to get private counsel.
DEFENDANT BROWN: Why I wanted private attorney, on February 17th I come to court and Mr. Summers was in custody in Baltimore City.
THE COURT: Yes, I remember that.
DEFENDANT BROWN: Mr. Skipp told me wasn’t enough jurors to hear the case, couldn’t be, I had to give 180 days right up for me to get a postponement. He wasn’t no kind of lawyer.
THE COURT: You want to explain to me why you do not have an attorney with you today?
DEFENDANT BROWN: I lost my job because they found out about my record. Same reason I lost my other job.
THE COURT: When did you lose your job?
DEFENDANT BROWN: About three months — April 28th, I was working about two weeks after that. I have been looking and looking for jobs.
THE COURT: Why didn’t you at that point go to the public defender and ask him to appoint a lawyer to represent you?
DEFENDANT BROWN: I didn’t know nothing about that.
THE COURT: Mr. Summers —
DEFENDANT BROWN: Mr. Brown. I did not have the number of the one here.
THE COURT: That is very difficult for the court to accept, particularly in light of the fact you were advised of your right to have a public defender. You did in fact make application to the public defender and the public defender appointed Mr. Skipp originally to represent you. You must have been a person that didn’t have sufficient funds to get a lawyer or they wouldn’t have appointed you one.
So, to say you don’t know that you had a right to go back and ask for a public defender to appoint a lawyer because you lost your job, I just can’t buy that.
Is that the reason why you say now you come without a lawyer?
DEFENDANT BROWN: Yes, sir.
THE COURT: Well, I’m satisfied that Mr. Brown was fully aware of his right to an attorney. The case was postponed at his request in order that he could obtain private counsel, and if he could not then financially obtain one, he could apply to the public defender for appointment of a lawyer. He didn’t see fit to do that. I’m satisfied that he has either affirmatively or by neglecting to obtain counsel waived his right to have counsel represent him here today.
Now, Mr. Summers, you want to explain why you don’t have an attorney?
DEFENDANT SUMMERS: I’ve only asked for postponement twice; one, first time mentioned for the purpose of getting private attorney.
THE COURT: That was on the day of the trial.
DEFENDANT SUMMERS: That’s right.
THE COURT: According to the docket entries that was the second trial date because the first one you didn’t appear because you were apparently confined in Baltimore City Jail.
DEFENDANT SUMMERS: Right.
Well, since the original postponement I had asked for, I had my job, like I told you, I broke my hands up, this one was broke three days after my court appearance here, and it is starting to heal, now I broke this one. You saw yesterday I had a cast on. I took it off this morning, sometime this morning.
THE COURT: You haven’t had a job since April?
DEFENDANT SUMMERS: No. I’m saying this contributes to it, that, and I’ve been back and forth numerous times to the hospital with my sister — sister had a double operation, my mother is on her dying bed right now. I just haven’t had a chance.
I take care of four children and I’m trying to keep my stepfather from having a heart attack. I’m a human being, I realize, you know, I’ve never asked, like yesterday I sat here all day yesterday to walk in and walk out and to come in here now in the mind I’m in.
I know you have been lenient and I know you have been fair. I’m not saying that. I have worked the whole time. I have worked when this charge was supposed to took place, I had a job, Your Honor.
THE COURT: I just wanted to know why you don’t have a lawyer today?
(No response.)
DEFENDANT SUMMERS: I’m trying to explain to you. I worked off and on. I’ve been working. Every bit of money I’ve gotten it’s been going in my family’s mouths.
THE COURT: Well, then you might have qualified for the public defender, you did before.
DEFENDANT SUMMERS: I would rather walk in there dumbfounded with words than to have Stefan Skipp represent me.
THE COURT: Well, I don’t know what your problem with Stefan is, and all I know he fights very hard for his clients, often gets them off.
Well, if you weren’t financially able to get one, you knew you had a right to go to the public defender because you have been to him before. You were qualified or he wouldn’t have appointed Mr. Skipp to represent you. He apparently found you either didn’t make enough money or didn’t have enough assets to obtain a lawyer and he appointed one for you.
DEFENDANT SUMMERS: This is way before any type of postponement was even asked.
THE COURT: On April 28th you asked for a postponement to obtain private counsel. You were granted a postponement when all the State’s witnesses were here and ready to go to trial. I think we had the jury present, I’m not sure about that.
As far as I’m concerned, he has affirmatively or neglected to obtain counsel and has waived his right to have counsel represent him on today.”

Appellants concede that all the safeguards contained in Rule 723 were explained to them, but still maintain that there was an ineffective waiver of their right to counsel. They appear to base this contention on the fact that they never affirmatively chose to proceed without counsel but were forced to do so by the trial court. They overlook the fact that their conduct may be used to show a waiver.

To bolster their argument, appellants claim that State v. Renshaw, 276 Md. 259 (1975) and Snead v. State, 286 Md. 122 (1979) are dispositive of the alleged "ineffective waiver.” We disagree.

In Renshaw, supra, the defendant, on the day of trial, informed the court that he was dissatisfied with the counsel assigned to the case. The trial court treated the defendant’s expression of dissatisfaction with assigned counsel, his request for a change of counsel and his silence as a waiver of the right to counsel and an election to proceed in proper person. In sum, the Court of Appeals determined that Renshaw had not waived his right to counsel because he had not made an unequivocal choice, but merely insisted on a different lawyer.

The Court of Appeals in Snead, supra, faced with a factual scenario similar to that of Renshaw, found that the trial court erred in not inquiring whether the defendant chose to waive his right to counsel after the defendant stated, "I don’t want no attorney then.” The Court of Appeals stated that when a defendant indicates a desire to defend pro se, the court must, by appropriate inquiry, determine whether he "truly wants to do so.” It was the failure of the judge to pursue the inquiry essential to a determination of the entitlement of the right to proceed without counsel that necessitated reversal of the trial court.

Renshaw and Snead, supra, are inapposite to the present case. In Renshaw, the Court of Appeals determined that the court erred in not finding a waiver, where there was no showing on the record that the defendant was competent to waive counsel, knowingly and intelligently exercised his right to waive counsel, or knew the advantages or disadvantages of self-representation. In Snead, the error of the trial court was in failing to inquire whether the defendant wanted to proceed pro se, after advising the court that he did not want an attorney.

Here, if the trial court had at the April 28, 1980, hearing required appellants to proceed at that time with the trial, we would be faced with a Renshaw or Snead situation. That is not the case here — the trial court granted the postponement to allow appellants to obtain other counsel.

We hold that under the unique circumstances of this case the appellants by their actions effectively waived their right to counsel.

Appellants final thrust in their quest to find reversible error centers on Thompson v. State, 284 Md. 113 (1978). In Thompson, the Court of Appeals at 126 said:

"The inquiry required to be made and the test to be met under § c before the court may accept a waiver of counsel applies not only to a defendant’s appearance pursuant to § a but also to any proceeding at which he appears without counsel thereafter. In such event, the court is prohibited from proceeding before determining whether the defendant at that time desires to waive counsel or has waived counsel. § d 2. By § e, there must be a record of compliance with respect to §§ b, c and d.” (Emphasis in original. Footnote omitted.)

Thompson concerned a defendant, who after an appeal of a District Court conviction, appeared in the Circuit Court on several occasions without counsel. There was never any compliance with Rule 723 at any of these appearances. Also, Thompson was never advised of his right to have representation by the public defender. It was for these reasons that the conviction was reversed. The quoted section from Thompson relied on by appellants was at most dicta in that case. However, we find appellants’ interpretation of that quoted portion to be in error.

We have found, and indeed appellants concede, that all their rights under Rule 723 §§ a, b, and c had properly been given prior to the date of trial. Section d (1) applies where there has been an acceptance by the court of an affirmative waiver of counsel; here a trial date is then set. Additional safeguards are required by § d (2). Naturally, if an affirmative waiver of counsel was accepted by the court and a trial date set pursuant to § d (1), the defendant would appear in court on that trial date without an attorney. Under § d (2) the trial court must ascertain that there has been a waiver; this does not require a restating of the rights under § c. If the waiver was by conduct — i.e., "neglecting or refusing to obtain counsel” — d (2) only requires that the trial court find that the conduct amounted to a waiver. This would not require a restating of the right under § c. To hold otherwise would be ludicrous. If, at this stage of the proceedings, the trial court was required to restate the rights under § c and then set a trial date, the defendant could appear the next time without counsel and the case would not proceed.

We hold that § d (2) requires the trial judge to determine whether at that time the defendant has "waived counsel, either affirmatively or by neglecting or refusing to obtain counsel.” If all the rights required by §§ a, b, and c previously have been given, in determining that a waiver of counsel has occurred (either affirmatively or by conduct), the trial court is not mandated by § d (2) to restate the rights under § c on the day of the trial.

Judgments affirmed.

Appellants to pay the costs.

      . Formerly Maryland Rule 740, Art. 27, § 591. On July 3, 1980 "good cause” was substituted for "extraordinary cause.” Appellant having had his first appearance prior to July 3, 1980, is governed by the "extraordinary cause” standard.

      . Summers was at that time incarcerated in the Baltimore City jail.

      . In Howell v. State, 48 Md. App. 89 (1981), cert. granted, 290 Md. 716 (1981), at 108, we said:
      "The appellant argues that the waiver provisions as spelled out federally by Johnson v. Zerbst, supra, and locally in Maryland Rule 719 c had not been complied with. Although by no means essential to our holding, we do not agree. A defendant may indicate his choice by his actions as well as by his words... The scenario, to be sure, was not garden-variety Rule 719 c, but, in the unique circumstances of this case, it was the functional equivalent.” (Emphasis added.)
      Maryland Rule 719 has since been changed to Maryland Rule 723.

      . After the prospective jurors were brought in and the trial judge explained to appellee the procedure for selecting a jury, appellee stated, "Your Honor, I want to remain silent from here on out.” Renshaw remained silent throughout the entire case.


source: Caselaw Access Project

license: Public Domain

text:
    ELMA F. LOYD v. DORCHESTER BOARD OF EDUCATION et al.
    [No. 581,
    September Term, 1981.]

      Decided February 5, 1982.

    The cause was argued before Gilbert, C. J., and Moore and MacÜANiEL, JJ.

      Joseph F. Lentz, Jr., with whom were Lentz, Hooper, Jacobs & Blevins, P.A. on the brief, for appellant.
    J. Kent Leonnig, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and John L. Ulrich, Jr., Assistant Attorney General, on the brief, for appellee Subsequent Injury Fund. Dwight C. Stone, with whom were Atwater & Stone on the brief, for appellees Employer and Insurer.
   MacDaniel, J.,

delivered the opinion of the Court.

Elma F. Loyd, appellant, received an award from the Workmen’s Compensation Commission (Commission), which found that she was 100% disabled, that 50% of her disability was attributable to an accidental injury arising from her employment with the Dorchester Board of Education (employer-insurer), appellee, that 25% was due to pre-existing conditions that were compensable, and that 25% was due to conditions which existed prior to the accident that were not compensable. Due to the award of the 25% for pre-existing conditions, the Subsequent Injury Fund (appellee) became involved in this case. Appellant sought a review of the Commission’s decision in the Circuit Court for Dorchester County, via a jury trial. At the conclusion of that trial, the jury found that appellant was 100% disabled, that 45% of her disability was attributable to the injury arising from her employment, that 45% was due to a compensable pre-existing condition, and that 10% was due to a non-compensable condition which existed prior to the accident.

On appeal appellant claims:

"I. The trial court below erred in refusing to grant claimant’s requested instruction that the jury could not find claimant less than 50% permanently disabled as a result of her accident sustained during the course of her employment.
II. The trial court below erred in that its instructions relating to the awarding of pain and suffering tended to mislead or confuse the jury.
III. The jury verdict [was] against the weight of the evidence.”

I.

Convinced that the employer-insurer had committed a technical error by the nature of its plea to the appellant’s petition of appeal, appellant requested that the trial court (1) not allow appellee to argue to the jury or present any evidence that appellant had received less than a 50% disability as a result of the accidental injury, and (2) instruct the jury at the conclusion of the trial that it could not award less than a 50% disability as a result of the accidental injury. The trial court acceded to appellant’s first request by denying appellee the right to argue or present evidence to the jury of any diminution from the accidental injury as awarded by the Commission. However, at the conclusion of the case, the trial court refused to instruct the jury that appellant could not receive less than a 50% disability from the accidental injury.

Those portions of appellant’s petition on appeal and appellee’s answer germane to the issue are presented below.

Appellant’s petition on appeal stated, inter alia:

"2. That the Workmen’s Compensation Commission erred in making its decision in this case as said decision is contrary to the evidence in the case and erroneous in its application of the law to the facts.
WHEREFORE, the Claimant has instituted this Appeal so that this Court may review the decision of the Commission and so that it may be determined that the Commission has not justly considered all of the facts of the case and so find that the Claimant is permanently totally disabled from the accidental injury of October 31, 1972, and her pre-existing condition.”

In answer to the petition, the employer-insurer stated in pertinent part:

"2. That they deny the allegations contained in paragraph #2 of the Petition.
WHEREFORE having fully answered the Petition, the employer and insurer pray that same be dismissed, with costs to the claimant.”

Appellant contends that when appellee denied her allegation that "the Commission erred” it had "admitted” that the Commission was correct in finding a 50% disability and could not now argue otherwise. Appellant suggests that appellee could easily have protected its right to argue "less than 50%” by including in its answer a phrase to the effect that "the award of the commission be modified by the jury in accordance with the testimony presented.”

Although the exact issue has never been decided in Maryland, we find guidance from two Court of Appeals decisions — Richardson v. Home Mut. Life Ins. Co., 235 Md. 252 (1964) and Owners’ Realty Co. v. Bailey, 153 Md. 274 (1927).

In Richardson, the Commission found that the claimant sustained a loss of 80% to his body, that 20% was attributable to the accidental injury, 40% was due to pre-existing disease, and 20% was due to conditions unrelated to the injury. The claimant, dissatisfied with the award of the Commission, appealed. At the conclusion of the case, the jury found that the claimant was 100% disabled, but that none of the disability was attributable to the accident. On appeal, appellant asserted that the trial court could only try the issue or issues raised by the appealing party and not any issue sought to be raised by appellee, in the absence of an appeal or cross-appeal. The concept of appellant was that because appellee did not appeal, appellant had a vested interest in the award to him by the Commission of 20% and that, while he could seek via appeal to raise the disability to a ceiling of 100% from a floor of 20%, it could not be lowered.

The Court of Appeals, while not deciding the point, said:

"There is strong indication that this contention is unsound. Md. Rules B1 through B12 govern the procedural aspects of appeals from the Commission to the trial court, but Code (1957), Art. 101, Sec. 56 (a), grants appeals and controls substantive rights and obligations flowing therefrom. Hensley v. Bethesda Metal Co., 230 Md. 556. Sec. 56 (a) provides that '[a]ny employer, employee, beneficiary or person feeling aggrieved by any decision of the Commission’ may have the decision reviewed by a geographically appropriate common law court 'and the court shall determine whether the Commission has justly considered all the facts concerning the injury, whether it has exceeded the powers granted it by the article, and whether it has misconstrued the law and facts applicable in the case decided.’ The section goes on to say "[u]pon the hearing of such an appeal the court shall, upon motion of either party filed with the clerk of the court according to the practice in civil cases, submit to a jury any question of fact involved in such case * * *.’ The proceedings are directed to be informal and summary.” (Footnote omitted.) 235 Md. at 254-55.

In Bailey, supra, the Court of Appeals said:

"There are no pleadings in the accustomed sense of that word in such cases as this, because the statute, does not authorize any, and none are needed. The proceedings before the commission, and upon appeal, are 'informal and summary’ (article 101, secs. 39, 56), and are of such a character that formal pleadings have no place in them.” 153 Md. at 278.

We think that the logic of Richardson and Bailey, supra, dictates that our answer to this issue follow suit.

The type of answer filed in this case would not entitle the petitioner to a jury instruction to the effect that the jury would be precluded from making an award different from that of the Commission. We hold that the filing of a general denial by the respondent in an appeal from a decision by the Workmen’s Compensation Commission is sufficient to put the case at issue and does not entitle the petitioner to a jury instruction that the jury cannot award less than that awarded by the Commission.

Appellant, while not conceding, but assuming her technical argument to be without merit, has presented further argument which she contends supports a showing of error by the trial court requiring a reversal.

Appellant contends that the ruling by the trial judge which limited the employer-insurer and Subsequent Injury Fund from arguing or producing evidence of diminution, misled her to the extent that she did not produce testimony she would otherwise have presented. The appellant was required to produce evidence which would show that her disability was greater than that awarded by the Commission. The ruling of the trial judge, that the employer-insurer and Subsequent Injury Fund could not argue diminution, would not relieve that burden from the appellant.

We find this argument to be without merit.

Finally, appellant claims that a careful review of the record extract reveals that appellees "agreed” to be bound by the trial court’s ruling that diminution could not be argued. She contends that appellees told the jury that the Commission was correct in the 50% award.

We find, after our own independent review of the record extract, that appellant has misconstrued what was said. We find nothing in the record extract to support appellant’s contention.

II.

Appellant next alleges that the trial court’s additional instruction on pain and suffering tended to mislead or confuse the jury.

Apparently the trial court had already given an instruction on pain and suffering and appellee requested and received a corrective instruction. The record extract does not contain the original instruction on pain and suffering. There is nothing for us to compare. The issue is, therefore, not properly before us.

III.

Appellant’s final contention is that the jury verdict was against the weight of the evidence.

It is well settled that the trier of fact in an appeal from the Commission is free to weigh the evidence and reach conclusions opposite from those of the Commission. Egypt Farms v. Lepley, 49 Md. App. 171 (1981); Montgomery Ward Co., Inc. v. Bell, 46 Md. App. 37 (1980).

Were we to rely on oral argument and the briefs submitted by the parties, we would hold that sufficient evidence was submitted to the jury to support their verdict. However, as the record extract did not contain all the evidence submitted to the jury, this contention is not properly before this Court for appellate review. Maryland Rule 1028.

Judgment affirmed.

Appellant to pay the costs.

      . This case had its genesis in 1972, when appellant sustained a compensable injury while employed as a "hall monitor” in the Dorchester County Junior High School. Appellant’s claim, reopened in 1978, resulted in the present award.

      . Hereinafter in this opinion "appellee” refers to the employer-insurer, unless otherwise specifically indicated.

      . Although we seriously question the correctness of this ruling, we find it unnecessary to address that issue in this appeal.

      . The issue was not decided because it had not been properly preserved for appellate review.

      . Appellant’s contention that this appeal was not a trial "de novo” was abandoned at oral argument as well it should have been. Maryland Bureau of Mines v. Powers, 258 Md. 379 (1970); Abell v. Albert F. Goetze, 245 Md. 433 (1967); Smith v. State Rds. Comm’n, 240 Md. 525 (1965).


author: Liss, J.,

text:
    MONTGOMERY COUNTY, MARYLAND et al. v. MARGARET J. LINDSAY
    [No. 595,
    September Term, 1981.]

      Decided February 5, 1982.

      The cause was argued before Thompson, Lowe and Liss, JJ.
    Sue Levin, Assistant County Attorney for Montgomery County, with whom were Paul A. McGuckian, County Attorney for Montgomery County, and Martin J. Hutt, Assistant County Attorney for Montgomery County, on the brief, for appellant Montgomery County. Thomas D. Murphy submitted on brief for appellant Melanie Angerman.

      David S. Goldberg for appellee.
   Liss, J.,

delivered the opinion of the Court.

In July of 1978, George E. Angerman, Jr., was employed by the State Department of Assessments and Taxation as a tax assessor. He was at that time and for some years prior thereto a member of the Montgomery County Employees Retirement System. On July 10, 1978, Angerman was the victim of a homicide which occurred in the garage of the building where he was employed in Rockville, Maryland.

The appellee herein, Margaret J. Lindsay, by a document entitled "Authorization to establish or change deductions,” dated January 25,1978, was designated by Angerman as the primary beneficiary of his retirement contributions. At the time of his death, Angerman was survived by Melanie Angerman, his daughter by a former marriage, one of the appellants herein. Following the death of Angerman, his former wife, Charlene S. Buckwalter, submitted a death benefits application to the Acting Personnel Director for Montgomery County on behalf of appellant Melanie Angerman. The personnel director approved the payments of certain benefits to Angerman’s daughter under the provisions of Section 33-46 (b) (2) of the Montgomery County Employees Retirement System.

On January 12, 1979, the personnel director, Marjorie J. Collum, notified the appellee that the Montgomery County Employee’s Retirement Law required that a designated beneficiary was entitled to receive the member’s accumulated contribution plus credited interest, unless there was a specific provision for the payment of an annuity. She also advised the appellee that in the instance of a service connected death (as this one was), the statute provided for a spouse’s and child’s benefit, based upon the member’s final earnings. The personnel director determined that under the facts surrounding Angerman’s death the minor child was eligible to receive an annuity payment. The director then concluded that even though the appellee was the member’s beneficiary, she was not entitled to receive the return of the accumulated contributions plus credited interest. Appellee sued Montgomery County, the other appellant herein, by way of a declaratory judgment action and sought a declaration of the rights, duties and obligations of the parties under the Employees’ Retirement System of Montgomery County. She also sought an order directing the appellant to pay appellee the accumulated contributions plus interest credited. The trial judge, after argument, concluded that the appellee, Margaret Lindsay, was entitled to receive the member’s contributions and interest under the provisions of Section 33-39 (c) (2) of the Montgomery County Employees Retirement Law and that the appellant, Melanie Angerman, was not entitled to benefits under Section 33-46 of the law. From an order implementing this conclusion the within appeal was filed. The sole question raised by this appeal is:

Whether the lower court’s decision that the provisions of Section 33-46 entitled "Death Benefits and Designation of Beneficiaries” do not prevail over the provisions of Section 33-39 entitled "Member Contributions and Credited Interest” of the Employees Retirement System of Montgomery County, was erroneous as a matter of law:

1.

The issue here presented is a question of statutory interpretation. The cardinal rule of statutory construction is to ascertain and effectuate the actual intent of the Legislature. Pennsylvania National Mutual Casualty Insurance Company v. Gartelman, 288 Md. 151, 416 A.2d 734 (1980); Department of State Planning v. Mayor and Council of City of Hagerstown, 288 Md. 9, 415 A.2d 296, 299 (1980).

The Court of Appeals and this Court have enunciated several tests for determining legislative intent. The intention of the legislature must be sought in the first instance in the words of the statute. Mauzy v. Hornbeck, 285 Md. 84, 400 A.2d 1091 (1979); Board of Supervisors of Election of Baltimore City v. Weiss, 217 Md. 133, 141 A.2d 734 (1958); Kimbrough v. Giant Food, Inc., 26 Md. App. 640, 339 A.2d 688 (1975). Second, the court should consider the object or purpose to be obtained by the statutes in question, and the courts should construe the law so as to carry out, effectuate, or aid in its general purposes and policies. State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), on remand, 30 Md. App. 1, 351 A.2d 477, cert. denied, 425 U.S. 942, 96 Sup.Ct. 1680, 48 L.Ed.2d 185 (1976); State Department of Assessments and Taxation v. Ellicott-Brandt, Inc., 237 Md. 328, 206 A.2d 131 (1965); Cooley v. White Cross Health and Beauty Aid Discount Centers, Inc., 229 Md. 343, 183 A.2d 381 (1962); Prince George’s County v. Bahrami, 33 Md. App. 644, 365 A.2d 343 (1976). Third, where a law such as the employees retirement system law has various parts, provision should be made, where possible, to give effect to all of its parts. Thomas v. State, 227 Md. 314, 353 A.2d 256 (1976); Thomas v. Police Comm’r of Baltimore City, 211 Md. 357, 127 A.2d 625 (1957); Maguire v. State, 192 Md. 615, 65 A.2d 299 (1949). Fourth, it is well settled that specific terms covering a given subject matter prevail over general language of the same or another statute which might otherwise prove controlling. Baltimore National Bank v. State Tax Commission of Maryland, 297 U.S. 209 (1936); United States v. Milk Distributors Association, Inc., 200 F. Supp. 792 (D.Md. 1961).

Fifth, the court may not disregard the natural import of the statutory language unless some imperative reason is found in the statute for enlarging or restricting its meaning. Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, 267 Md. 501, 298 A.2d 427 (1973); Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968); Celanese Corporation of America v. Davis, 186 Md. 463, 47 A.2d 379 (1946). Finally, where statutory language is plain and free from ambiguity, and expresses a definite and sensible meaning, courts are not at liberty to insert or delete words with a view toward making the statute express an intention which is different from its plain meaning. Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, supra; Gatewood v. State, 244 Md. 609, 224 A.2d 677 (1966); Fowel v. State, 206 Md. 101, 110 A.2d 524 (1955); Pressman v. State Tax Commission, 204 Md. 78, 102 A.2d 821 (1954).

The pertinent provisions of the Montgomery County Employees Retirement Law are as follows:

Section 33-39 (c). Member Contributions and Credited Interest. Return of Member Contributions.

(1) Upon termination of County service, except by death or retirement, each member who has not elected to vest shall be paid the full amount of accumulated contributions with credited interest less any indebtedness to the County Government or the Montgomery County Employees Federal Credit Union.

Section 33-46 (b). Spouse’s and Children’s Benefits of a Member Whose Death is Service Connected. If a member dies, while in the service of the County or participating agency on or after August 15, 1965, and satisfactory proof that death was the result of injuries sustained in the line of duty, or was directly attributable to the inherent hazards of the duties performed by the member, is submitted, and the death was not due to willful negligence, payments effective March 1, 1974, will be made as follows:

(1) A spouse’s benefit equal to twenty-five percent of the member’s final earnings, but not less than two hundred fifty dollars per month until death; plus
(2) A child’s benefit equal to five percent of the member’s final earnings but not less than fifty dollars per month until the child reaches age twenty-one or for life if the child is disabled and incapable of self-support.
(f) Designation of Beneñciaries. A member may name a primary beneficiary or beneficiaries and contingent beneficiary or beneficiaries on a designation of beneficiaries form to be filed with the Personnel Office. If a member names two or more persons as beneficiaries, such persons will be considered co-beneficiaries unless the member provides otherwise. A member may change any named beneficiary by written request. The consent of the beneficiary or beneficiaries is not required to any naming or change thereof. Such request is effective when the member signs it, whether or not living at the time the request is received by the Personnel Office, but without prejudice for any payments made before the receipt of the request.

Section 33-39 (c) (2) provides in pertinent part as follows:

Upon the death of the member, unless eligible for an annuity under Section 33-46, Death Benefíts and Designation of Beneñciaries, accumulated member contributions plus credited interest shall be paid to the designated beneficiary or beneficiaries less any indebtedness to the County Government.

It is the grammatical construction of the words "unless eligible for an annuity” that is the source of the dispute in this case. Appellants urge an interpretation which would restate Section 33-39 (c) (2) as follows:

Upon the death of the member, unless [anyone is] eligible for an annuity under Section 33-46, Death Benefits and Designation of Beneficiaries, accumulated member contributions plus credited interest shall be paid to the designated beneficiary....

Thus, if we adopt appellant’s line of reasoning, if a spouse or a child (in this case, appellant Melanie Angerman) is eligible for an annuity under Section 33-46 (b) (2), the accumulated member contributions may not be paid to the designated beneficiary under Section 33-39 (c) (2) and/or Section 33-45 (b) (3). This, in spite of the fact that it may have been the express and unequivocal intent of the deceased George Angerman, Jr. as expressed by his designation of beneficiary that the accumulated contributions made by him be paid to his parents, his brother, his fiancee or some person or persons other than his spouse or children. In effect, appellant’s interpretation would render Sections 33-39 (c) (2) and 33-45 (b) (3) meaningless. The ultimate disposition of a decedent’s retirement contributions would be determined not by the deliberate act of the owner of the contributions in designating his beneficiary but by the terms of Section 33-46 (b) which applies only when an employee dies in the service of the County, a circumstance totally unforeseeable when the designation of beneficiary is made.

Appellee argues that the pertinent section should be read to mean what it logically was intended to mean, to wit:

Upon the death of the member, unless [the designated beneficiary is] eligible for an annuity under Section 33-46, Death Beneñts and Designation of Beneficiaries, accumulated member contributions, plus credited interest shall be paid to the designated beneficiary.

The Court of Appeals, in Schweitzer v. Brewer, 280 Md. 430, 374 A.2d 347 (1977), had before it the task of interpreting the Maryland Motor Vehicle Law. The Court held:

When the [legislative] intent is expressed in clear and unambiguous language, this Court will carry it out, if no constitutional guarantees are impaired. Words are granted their ordinary signification so as to construe the statute according to the natural import of the language used without resorting to subtle or forced interpretations for the purpose of extending or limiting its operation. If reasonably possible the parts of a statute are to be reconciled and harmonized, the intention as to any one part being found by reading all the parts together, and none of its words, clauses, phrases, or sentences shall be rendered surplusage or meaningless. Results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language. In other words, an interpretation should be given to statutory language which will not lead to absurd consequences. [280 Md. at 438-39].

The statute clearly states that when a member dies in the service of the County his accumulated contributions go to the designated beneficiary, "unless eligible for an annuity.” There are three possibilities that arise from the use of this language:

(1) "unless [the member] is eligible for an annuity”, or
(2) "unless [the designated beneficiary] is eligible for an annuity”; or
(3) "unless [anyone] is eligible for an annuity.”

It seems apparent to us that the qualifying word "unless”, which means "[e]xcept on condition that” (See American Heritage Dictionary), modifies the word preceding it, "member”. The only other specific possibility would be the "designated beneficiary” which follows the term and is used in a separate thought context in a phrase set off by commas. With either interpretation in this case the payment of death benefits does not preclude the designated beneficiary from the clear right to the accumulated contributions because neither she nor the deceased member is eligible for an annuity.

Only if we interpret the statute as meaning "unless [anyone] is eligible for an annuity” may we disentitle the designated beneficiary from the accumulated contributions. Nowhere do we find the slightest indication that the Council intended so broad an interpretation. The ultimate decision in this case rests not only upon statutory interpretation but upon commonly accepted general word usage. We are required to apply the "ejusdem generis rule” where a general exception follows a specific enunciation of a person or persons. In such cases the general words are not to be construed in their widest extent but are to be held as applying only to persons or things specifically mentioned. See Levy v. American Mutual Liability Ins. Co., 195 Md. 537, 73 A.2d 892 (1950); Cameron v. Frazier, 187 Md. 368, 50 A.2d 243 (1946).

We conclude that the two sections 33-39 (c) (2) and 33-46 (b) (2) are not inconsistent, nor are they mutually exclusive. The accumulated retirement contributions represent a fixed dollar amount easily determined by reference to the contributions made by the deceased employee into his retirement program. The child’s or spouse’s benefit is premised upon a percentage of the deceased employee’s final salary clearly labeled as an "annuity” and is in the nature of a supplemental benefit paid to an employee’s wife or children for an employee whose death was "service connected.” As the statute is presently drawn, if the designated beneficiary is neither a spouse nor a child, Montgomery County is required to pay both the annuity under Section 33-46 (b) and the accumulated contributions under Section 33-39 (c) (2). If the designated beneficiary is a spouse or child the County is obligated only for the annuity payments under Section 33-46 (b). We reach this conclusion on the basis of the oft expressed rule that "a statute shall be so interpreted as to give meaning to each of its provisions so as not to render any of them nugatory,” Rafferty v. Comptroller of the Treasury, 228 Md. 153, 178 A.2d 896 (1962). See also Mayor & City Council of Baltimore v. Biermann, 187 Md. 514, 50 A.2d 804 (1947).

Judgment that Appellee Margaret J. Lindsay is entitled to receive accumulated member contributions plus interest affírmed, judgment that appellant Melanie Angerman is not entitled to beneñts reversed and remanded for entry of judgment that she is entitled to annuity as provided under Section 33-46.

Costs to be paid by Montgomery County.


author: Moylan, J.,

text:
    MILDRED JONES v. IDA ALBERT et al.
    [No. 606,
    September Term, 1981.]

      Decided February 5, 1982.

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

      Richard D. Rosenthal and George A. Epstein for appellant.

      Michael A. Christianson, with whom were Richard W. Reische and Callahan, Calwell & Laudeman on the brief, for appellees Baltimore Federal Savings and Loan Ass’n and Ledon and Eula Eaddy. Eugene Hettleman for appellee Ida Albert.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Mildred Jones, the personal representative of the estate of William R. Hoskin, appeals from a judgment entered in the Superior Court of Baltimore City on April 7, 1981, denying her application to be admitted as a defendant in an action in ejectment filed by the appellee Ida Hopkins against William R. Hoskin and Bernice G. Hoskin, his wife; denying the appellant’s motion to strike the judgment entered by that court against Mr. and Mrs. Hoskin on October 8, 1979; and granting the motion of the appellees Ledon Eaddy, Eula M. Eaddy, and the Baltimore Federal Savings and Loan Association to intervene as plaintiffs.

Mr. and Mrs. Hoskin became the owners, as tenants by the entireties, of a leasehold interest in 57 North Monastery Avenue in Baltimore City by a recorded deed dated January 15, 1965. Ida Albert eventually acquired the reversionary interest in the property by a recorded deed dated November 13,1975. Mrs. Hoskin died intestate on September 16,1974, and Mr. Hoskin died intestate on March 25,1978. No estate, however, was opened for either of them until October 16, 1980, when an estate was opened for Mr. Hoskin, and the appellant was appointed personal representative.

In the meantime, after Mr. Hoskin’s death, the house on Monastery Avenue remained vacant, and the annual ground rent in the amount of $75 was not paid. As a result, on May 2, 1979, Ida Albert filed an action in ejectment against William Hoskin and Bernice Hoskin, as leasehold owners, seeking the recovery of her property, damages, and the right of re-entry reserved to her under the terms of the lease. On May 4, 1979, a copy of the summons and declaration were posted on the premises. Service of process was returned "Mortuus Est” as to William and Bernice Hoskin in May and July, 1979. At this time, no estate of record existed. Upon inquiry, however, Ida Albert learned through information provided by neighbors that both Mr. and Mrs. Hoskin were deceased. Subsequently, notice of publication was given on three separate occasions in August and September, 1979, as to the nature of the action against the Hoskins. On October 8, 1979, a judgment by default was entered awarding restitution of the property to Ida Albert and nominal damages of one cent. Possession of the property was delivered to Robert Sempeles, attorney for Ida Albert, on October 25, 1979. On October 15, 1980, Ms. Albert, acting through a straw party, conveyed the leasehold interest in the property to Ledon and Eula M. Eaddy for the sum of $17,900, subject to a purchase money deed of trust granted by Mr. and Mrs. Eaddy to Baltimore Federal Savings and Loan Association.

After opening the estate of William Hoskin and being named as his personal representative, the appellant applied for leave to be admitted as a defendant in the ejectment action and sought to have the court strike the judgment of October, 1979. Mr. and Mrs. Eaddy and Baltimore Federal Savings and Loan Association sought to intervene as parties plaintiff. The trial court denied the appellant’s application for leave to be admitted as a defendant and her motion to strike the judgment, which were filed over one year after the conclusion of the ejectment proceeding, while granting Mr. and Mrs. Eaddy’s and Baltimore Federal’s petition to intervene as parties plaintiff.

On appeal, the appellant argues that the default judgment was void because it was entered against persons who were dead when the action was commenced and because it affects property of a person who was not a party to the action when the judgment was entered. We find none of the appellant’s arguments of any merit and hold that the Superior Court of Baltimore City had jurisdiction to award restitution of the property to Ms. Albert in accordance with the right of reentry reserved to her in the lease and that her reentry onto the leasehold property pursuant to the terms of the lease, after the default judgment, worked a forfeiture of the lease.

After the annual ground rent was not paid for over six months, Ms. Albert, exercising her right to reenter the property and extinguish the leasehold estate if the ground rent became due and remained unpaid for six months, instituted an ejectment proceeding pursuant to Real Property Art., § 8-402 (c) in the Superior Court of Baltimore City and named as defendants the only persons known to her to have a claim adverse to her title — Mr. and Mrs. Hoskin, named as tenants in the lease. Real Property Art., § 8-402 (c) at that time provided in pertinent part:

"(c) Ejectment where one-half year’s rent is due. — In all cases between landlord and tenant, where one-half year’s rent shall be in arrear and the landlord has the lawful right to reenter for the nonpayment thereof, the landlord may, without any formal demand or reentry, serve a copy of a declaration in ejectment for the recovery of the property; if the declaration cannot be legally served, or no tenant be in actual possession of the property, then he shall affix it upon the door of any demised messuage, or if the action of ejectment shall not be for the recovery of any messuage, then upon some notorious place of the property described in the declaration in ejectment; such affixing shall be deemed legal service thereof, which service or affixing of such declaration in ejectment shall stand in the place and stead of a demand and reentry.”

Ms. Albert attempted personal service upon Mr. and Mrs. Hoskin. When personal service could not be effected and the summons was returned "Mortuus Est,” a copy of the declaration was affixed to the door of the premises. Ms. Albert further inquired whether any estate had been opened for Mr. Hoskin, as to effect record title in the lease in a personal representative. Ascertaining that no record existed of any estate or personal representative, she additionally attempted service by publication under Md. Rules Illa and 105b, which govern service of process in actions relating to land and cover situations where the whereabouts of the defendant are unknown. Unknown here were the whereabouts of any heirs. The order of publication stated, inter alia, "Both Defendants were returned Mortuus Est as of the May, 1979 and the July, 1979 return days and the premises were posted with a copy of the Summons and Nar in Ejectment on May 4,1979. There is no estate of record for either Defendant.” It was only after restitution of the property had been made and the property was transferred to the Eaddys and Baltimore Federal did Ms. Albert learn, in October, 1980, that the appellant had had an interest in the leasehold estate.

The fact that Mr. and Mrs. Hoskin were dead when the ejectment proceeding was instituted does not affect the validity of the default judgment. An ejectment proceeding is a mixed action. It partakes of an action in rem in so far as it involves clarification of title and recovery of possession of land. On the other hand, it requires in personam jurisdiction for the court to award monetary damages. See 1 Poe’s Pleading and Practice, §§49 and 50 (6th ed. 1970). Jurisdiction to award restitution existed in the court, therefore, based on the geographic location of the property and the right of reentry reserved to the reversionary owner in the lease. Since the property was vacant and personal service of process could not be effected against the tenants of record, affixing the declaration to the door of the premises and service of process by publication were as effective to bind the land as if personal service had been effected. Real Property Art., § 8-402(c) specifically provides that "if the declaration cannot be legally served, or no tenant be in actual possession of the property,” affixing the declaration to the door "shall be deemed legal service thereof,” and Md. Rule 111b explicitly provides that where the whereabouts of the defendant is unknown, service by publication or posting "shall be in all respects as effectual to bind the land and to affect the title thereto as if personal service had been made upon such defendant....” See 4 Poe’s Pleading and Practice, § 465 (6th ed. 1975).

Furthermore, Ms. Albert’s reentry onto the leasehold property pursuant to the terms of the lease, after the default judgment, worked a forfeiture of the lease, extinguishing any interest in the leasehold estate that the appellant may have had. The Court of Appeals made this clear in Abrahams v. Tappe, 60 Md. 317, and Link v. MacNabb, 111 Md. 641. In Abrahams v. Tappe, after the rent had not been paid for eighteen months, Mrs Abrahams, the owner of the reversion, instituted ejectment proceedings against George Feller, the tenant of record. Under the terms of the lease, Mrs. Abrahams had the right to reenter the property if the rent was in arrears for one year. In the meantime, the property had been conveyed through a straw party to George Feller’s wife, Wilhelmina Feller, by an unrecorded deed. The Fellers, in turn, then granted a mortgage upon the property to Caroline Tappe. Following a judgment by default, where neither the named defendant nor the actual but unrecorded leasehold owner, Wilhelmina Feller, appeared to defend the action, Mrs. Abrahams was placed in possession and reentered the property, which was vacant. After six months had expired, she asserted fee simple title to the land, paid the taxes and erected new buildings on it. When Mr. and Mrs. Feller defaulted on payment of the mortgage debt, Caroline Tappe filed a petition for the sale of the leasehold interest in the mortgage. Mrs. Abrahams and her husband filed a bill to restrain the sale. An injunction was granted restraining the sale and then dissolved, and Mr. and Mrs. Abrahams appealed. The Court of Appeals held that the mortgagee of the leasehold took it subject to all its conditions and covenants and failure to pay the rent and keep the taxes paid was clearly a default in her as in the original lessee. The Court went on to hold, at 60 Md. 322-323:

"The rent having been allowed to remain unpaid for more than one year, and Mrs. Abrahams having by reason of that default, and in the assertion of her rights as landlord, secured an actual and peaceable repossession of the premises, which in fact she found deserted, the lease became absolutely forfeited, and the mortgage, so far as it affected the premises, fell with it. Whatever technical error there may have been in making George Feller the defendant in the ejectment suit we consider immaterial. She took and held possession in assertion of her claim to the ownership of the fee, and her actual re-entry following the perfected right to re-enter, worked the forfeiture of the lease; and she stands in relation to the property, as if the lease 'had never been made.’ So far then, as she is concerned, the interest or estate conveyed in the mortgage is as if it had never existed.” Mayhew v. Hardesty, 8 Md. 479; Cooke v. Brice, 20 Md. 397.

Likewise, in Link v. MacNabb, 111 Md. 641, the Court held that default in the payment of rent followed by a judgment in ejectment and the reentry of the landlord caused a forfeiture of the entire leasehold interest, including the interest of the remaindermen, all of whom were not made parties defendant in the ejectment action. The Court there said, at 111 Md. 646:

"Nor could the technical defect, if such it were, of not bringing all of Rose Taylor’s children into the ejectment affect the marketability of Miss Davis’ title after her actual re-entry upon the property for a default under the terms of the lease. The record does not show whether any one was in actual occupancy of the premises at the time of the default and re-entry but it does show that Rose Taylor who was a defendant in the ejectment had at both of those times a legal title to the leasehold estate, subject to the conditions of the lease, coupled with the right of possession and there is no suggestion of the existence of any claim or possession hostile to hers. The default under the lease during her life estate having been followed by a re-entry of the landlord caused a forfeiture of the entire leasehold estaté, including the interest therein of her children as remaindermen which like her life estate was held upon the condition of the payment of the rent and subject to the rights of the landlord as set forth and reserved in the lease by which the leasehold was created.”

See also Real Property Art., § 8-402 (c) (1974), providing in pertinent part:

"If the court shall enter a verdict for the landlord, he shall have judgment and execution in the same manner as if the rent in arrear had been legally demanded and a reentry made. If the tenant or other person claiming or deriving under the lease, shall permit a judgment to be rendered against him, and execution to the executed thereon, without paying the rent and arrears, together with full costs, and without proceeding for relief in equity within six calendar months after the execution, the tenant and all other persons claiming and deriving under the said lease shall be barred and foreclosed from all relief or remedy in law or equity other than by appeal for reversal of such judgment, and the landlord shall thenceforth hold the property discharged from the lease.”

Although an occasional result at surface glance may seem harsh, the distinction which our law draws between an action in rem and an action in personam is, on balance, an invaluable one. The procedural requirements and the consequences that follow are but the necessary incidents of that distinction. The policy considerations undergirding the law were well-articulated by Judge Karwacki in the course of the hearing:

"... [T]he problem here is there is a policy which I think is expressed in 8-402 (c), as well as the long history of dealing with ground rent litigation in this State, as well as foreclosures generally of real estate, that when you are dealing with this kind of in rem proceeding there is a definite public policy in favor of certainty of title. Given this situation, this case probably illustrates it as well as any other. You have two people who died. It is not until a year later that a relative from Ohio arrives on the scene and discovers they had real estate, at least a leasehold estate, at the time of their death. That gives you some indication of how close she was to her relatives who died here. What do we do in a situation like that? Is it incumbent upon the landlord to search the United States of America for relatives of a deceased leasehold owner, and what happens during the hiatus while searching? Does the property remain vacant, subject to vandalism? That is not in the public interest, I don’t think. A decision in favor of your motion to strike would, in my judgment, create great mischief in the desire of the City and its citizens to promote continuity of ownership of property in the City. It is not desirable that property lie fallow. That’s why we have statutes like this which set up pretty strict procedures with regard to ejectment, and put the burden upon the successors in interest to a deceased tenant to come in within a six month period to relieve against the forfeiture.”

For all of these reasons, we believe that Judge Karwacki was eminently correct when he concluded:

"... [W]e are dealing here with an enrolled judgment at the time we have a suggestion of death filed and an application to be admitted as a defendant filed by Miss Jones as the personal representative of the original defendants, and also at that time a motion to strike default judgment filed. This is fully a year and two months after the conclusion of the eviction proceedings, and a writ of possession being executed by this Court in favor of the landlord in a proceeding which I think was conducted in accordance with Section 8-402 (c) of the Real Property Article of the Code.
The reason for that section of the Code, which is merely a recodification of what is long existing Maryland practice, which is commented upon in Poe’s Book on Practice and Procedure, is the fact that there is a definite public interest in certainty in land transactions, and the public’s need to rely on land titles. To permit this kind of action would, in my judgment, jeopardize every action conducted pursuant to Section 8-402 (c) and result in chaos.
Further, I believe I am supported in these views by the cases which have been cited by the plaintiff in this action, and I do think the decisions of the Court of Appeals in Abrahams v. Tappe, 60 Md. 317, and Link v. MacNabb, 111 Md. 641, are a complete answer to the application of Miss Jones and her motion to strike proffered here.

Judgment affirmed; costs to be paid by appellant.

      . A 1981 amendment to this subsection, effective July 1, 1981, made certain stylistic changes without affecting the substance of the subsection. It designated the four sentences in subsection (c) as paragraphs (1), (2), (3), and (4), respectively; substituted "ground rent” for "rent” near the beginning of the present paragraph (1) and in paragraph (3); and substituted "If the circuit court as defined in § 1-101 (b) of the Courts and Judicial Proceedings Article” for "If the court” at the beginning of the present paragraph (2).


author: Orth, J.,

text:
    WILLIAM RAYMOND GUARDINO v. STATE OF MARYLAND
    [No. 663,
    September Term, 1981.]

      Decided February 5, 1982.

      The cause was argued before Mason and Liss, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      GaryS. Offutt, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Ann E. Singleton, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Robert L. Dean, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

A fifteen year old high school student complained that William Raymond Guardino had raped her, robbed her, and battered her. He was arrested, indicted, and tried in the Circuit Court for Montgomery County. Twelve of his peers were convinced beyond a reasonable doubt that he had committed the crimes and found him guilty of rape in the second degree, robbery, and battery. The trial judge, merging the battery conviction into the rape conviction, sentenced him to the jurisdiction of the Division of Corrections for a total of eight years to commence at the conclusion of a sentence he was then serving.

On direct appeal, Guardino does not suggest that the evidence placed before the jury was not legally sufficient to sustain the convictions. At the trial he admitted that he had vaginal sexual intercourse with the complainant but asserted that it was not by force but with her consent. But there was evidence supporting her insistence that the intercourse was by force, against her will, and without her consent. A medical examination made shortly after the incident showed that she had bruises on her neck and left shoulder and on her vulva. The bruises on her neck appeared to be fingerprint-type marks as if someone had grabbed her particularly hard. The bruises on the vulva, the examining doctor opined, could have been caused by forceful intercourse. The bruises were fresh, no more than several hours old. The right upper area of her back, and both sides of her lower back were abraded. The victim’s wallet was found on Guardino’s person at the time of his arrest, and he admitted taking it after coitus because he needed money.

Guardino attacks the judgments by way of four errors he alleges were made by the trial judge, any one of which, he implores, was so prejudicial as to require reversal of the judgments. He claims that the judge was wrong in refusing to strike two jurors for cause; that on two occasions he improperly admitted evidence adduced by the State; and that he erred with respect to one of his instructions to the jury. We find no merit in regard to the allegations concerning the striking of the jurors and the admission of the evidence. As to the jury charge, the judge erred, but Guardino’s challenge comes too late to provide him relief. We first explain why the erroneous jury instruction does not give him succor.

I.

The instruction in question deals with the advisory nature of the judge’s charge to the jury. Article 23 of the Declaration of Rights to the Maryland Constitution provides in pertinent part:

"In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”

Md. Rule 757 implements that provision. In the light of Art. 23, it speaks in terms of "advisory instructions” and stipulates that "[t]he court may, and at the request of any party shall, give those advisory instructions to the jury as correctly state the applicable law.” Md. Rule 757b. It mandates that "[i]n every case in which instructions are given to the jury the court shall instruct the jury that they are the judges of the law and. that the court’s instructions are advisory only.” Id. Art. 23 spells out no exception to the declaration that the jury shall be the judges of the law (although it has an exception as to the facts), and the implementing rule indicates no exception to be brought to the attention of the jury with regard either to the jury being the judges of the law or the court’s instructions being advisory only. As recently as 1976, the Court of Appeals spoke in terms of instructions on the law under the Constitutional provision as "purely advisory” and stated that "the jury must be so informed.” Dillon v. State, 277 Md. 571, 580, 357 A.2d 360, 366 (1976) (emphasis supplied), and, in reaffirming that the jury must be left to find their verdict in accordance with their own judgment of the law as well as the facts, observed that such an advisory instruction with respect to the law goes to the jury simply as a means of enlightenment and not, as in civil cases, as a binding rule for their government. Id., quoting Slansky v. State, 192 Md. 94, 107, 63 A.2d 599, 604 (1949). So it was that the trial courts of Maryland generally construed the Constitutional provision as being satisfied by informing the jury in the plain language of the rule that they were the judges of the law and that the court’s instructions were advisory only. Frequently, however, there was a caution added by the court to the effect that being judges of the law did not confer upon the jury "untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate....” See Blackwell v. State, 278 Md. 466, 479, 365 A.2d 545, 553 (1976), cert. denied, 431 U.S. 918 (1977).

The judge here charged the jury in the usual fashion:

"As I mentioned before the trial began, under the Constitution of the State of Maryland in a criminal case, the jury is the judge of the law as well as the facts, and for that reason, then, anything that I may say to you during my instructions is advisory only and you are not bound to follow them. You may feel free to reject my advice as to what the law is and to arrive at your own independent determination of that. At the same time, you are not free to arbitrarily interpret the law as you think it ought to be or so that it will conform to any private opinion that you may have. You have to consciously and in accordance with your oaths listen to the Court and listen to the argument of counsel and based upon that, arrive at a determination of what the law is in the state of Maryland and once having done that and having made your factual determination, which again it is your obligation to make, you will apply facts to the law and you will then, based upon that, will arrive at your verdict.
If you find that there was a conflict, and in many cases there will not be a conflict between what I tell you and what both counsel will tell you about the law, but if there is a conflict, then it will be your duty to resolve that conflict.”

The same day the jury in the case before us was charged, the Court of Appeals decided Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980). Stevenson declared that

"the jury was not granted, by Article 23, the power to decide all matters that may be correctly included under the generic label — 'law.’ Rather, its authority is limited to deciding 'the law of the crime,’ . . . or 'the definition of the crime,’ as well as 'the legal effect of the evidence before [the jury].’.. . And this Court has consistently interpreted this constitutional provision as restraining the jury’s law deciding power to this limited, albeit important, area.” Id. at 178, 423 A.2d at 564 (citations omitted).

Since the jury’s judicial role is limited to the "law of the crime,” all other legal issues are for the judge alone to decide. Thus, both the judge and the jury have a law-judging function, and the jury, as well as the court, must know what its respective function is. Therefore, the Court said, the trial judge should inform the jury what it was called upon to do and what it could not do:

"[I]t is incumbent upon a trial judge to carefully delineate for the jury the following dichotomy: (i) that the jury, under Article 23, is the final arbiter of disputes as to the substantive 'law of the crime,’ as well as the 'legal effect of the evidence,’ and that any comments by the judge concerning these matters are advisory only; and (ii) that, by virtue of this same constitutional provision, all other aspects of law (e.g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury’s pale, and that the judge’s comments on these matters are binding upon that body. In other words, the jury should not be informed that all of the court’s instructions are merely advisory; rather only that portion of the charge addressed to the former areas of 'law’ may be regarded as non-binding by it, and it is only these aspects of the 'law’ which counsel may dispute in their respective arguments to the jury. On the other hand, the jury should be informed that the judge’s charge with regard to any other legal matter is binding and may not be disregarded by it.” Id. at 180, 423 A.2d at 565 (footnote omitted).

Montgomery v. State, 292 Md. 84, 437 A.2d 654 (1981), further restricted the law-judging function of the jury. It announced that the application of the rule implementing Art. 23 "is limited to those instances when the jury is the final arbiter of the law of the crime.” At 89. It explained:

"Such instances arise when an instruction culminates in a dispute as to the proper interpretation of the law of the crime for which there is a sound basis. Under such circumstances, counsel are granted leave to argue contrary to the court’s instruction on the law of the crime and this is the occasion when Article 23 and Rule 757 b require the court’s instruction to be advisory. Even here, counsel may not in their arguments attempt to persuade the jury to enact new law or repeal or ignore existing law. However, in those circumstances where there is no dispute nor a sound basis for a dispute as to the law of the crime, the court’s instructions are binding on the jury and counsel as well.” At 89 (emphasis in original).

An instruction on "the law of the crime,” Montgomery notes, "must contain a definition or explanation of the offense charged in language setting forth the essential elements thereof, along with such additional explanation of the law pertaining to the criminal agency of the accused as may be necessary.” At 88-89.

Unlike Stevenson, Montgomery did not specifically state nor demonstrate that its doctrine was reflected in the prior decisions of the Court. But it is silent as to its retroactive effect. As it serves to explicate Stevenson, we assume that its teachings, no less than Stevenson’s, are an affirmation of prior decisions, in accord with established law consistently followed by the Court of Appeals, even though not recognized in practice by many of the trial courts.

It is readily apparent that the charge in the case before us was erroneous in that it was not in conformance with Stevenson and Montgomery. The charge as made carried with it a blanket statement that the instructions were advisory. There was no indication that the comments of the judge as to the presumption of innocence and the burden of proof, for example, were binding on the jury. From the arguments of counsel, it may be that there was no dispute with respect to some aspects of the law of the crimes charged, but there was a dispute as to other aspects of them. The court, however, made no distinction in connection therewith in regard to the jury’s function.

Guardino concedes that with respect to the advisory nature of the instructions, he did not object below to them as required by Md. Rule 757 f, nor did he request a proper instruction. He, thus, falls squarely within Md. Rule 757 h so that his objection on appeal is not reviewable as of right. He requests us, however, despite his failure to object timely, to exercise the discretion conferred on us by section h of the Rule and to take cognizance of the error. We decline to do so. We appreciate that both the bench and the bar are charged with having knowledge of the law. But in light of Rule 757 h, the failure of the trial judge to recognize that the Court of Appeals had "consistently interpreted” Art. 23 as "restraining the jury’s law deciding power,” limiting it to the law of the crime, cannot excuse the failure of defense counsel to recognize that restraint and interpose a timely objection when the trial judge failed to abide by it. This is in accord with Scarborough v. State, 50 Md. App. 276, 437 A.2d 672 (1981).

We find support for our position in Stevenson. The majority declined to review the propriety of the individual instructions given there because no question had been raised thereon except the failure to inform the jury that all instructions on the law were binding on it. 289 Md. at 171, 423 A.2d at 561. The dissenting members of the Court hotly disputed this, stating that "[a] review of the record demonstrates that there was an objection to the advisory instruction given, and that the issue has continuously been preserved for appellate review.” 289 Md. at 196, 423 A.2d at 573-74 (Eldridge, J., dissenting). In a footnote, the majority observed that even if the dissent were correct in its view that the basis of objection was the specific instructions, that basis was neither properly presented to nor ruled upon by the trial court as required by Md. Rule 757 f. Therefore, the Court concluded, citing Md. Rule 885, the question was not before it on appeal. In the case at hand, as we have indicated, no question was presented to or ruled upon by the lower court as to the advisory instruction, and, thus, it is not before us on appeal. Md. Rule 1085. The error in the instructions in Stevenson was as plain as the error in the instruction here, and, although the Court of Appeals could have taken cognizance of it on its own motion, it chose not to do so.

II.

As we have indicated, we find to be without merit the allegation that the trial judge refused to strike two prospective jurors for cause. A person summoned for jury service may be excused from a particular jury by the court upon a challenge by a party for good cause shown. Maryland Code (1974, 1980 Repl. Vol.), § 8-210 (b) (5) of the Courts and Judicial Proceedings Article; Md. Rule 754b. In this jurisdiction, it is established that "[i]n determining whether a juror should be excused for cause, the general question is whether a person holds a particular belief or prejudice that would affect his ability or disposition to consider the evidence fairly and impartially and reach a just conclusion.” King v. State, 287 Md. 530, 535, 414 A.2d 909, 912 (1980). This is in accord with the statutory provision that a person may be excused from a particular jury by the court after a determination that the person may be unable to render impartial jury service. Maryland Code (1974, 1980 Repl. Vol.) § 8-210 (b) (2) of the Courts and Judicial Proceedings Article.

During the examination of prospective jurors on the voir dire, the trial judge asked them "[i]f you have ever been a witness to a crime or have ever been the victim of a crime or have ever been accused as having been a person who committed a crime; any of the three, a witness to the crime, a victim, or an accused. ... I am excluding minor traffic violations.” Dorothy Farquhar informed the court that her house had been broken into Monday past and jewelry stolen. The articles had not been recovered and no one had been arrested. The court inquired: "Do you feel that that would affect your ability to be fair and impartial if you were put on a jury?” The juror replied: "I don’t think so, no.” Defense counsel’s request that she be excused for cause was denied. Subsequently, she was excused upon Guardino’s peremptory challenge. Maryland Code (1974,1980 Repl. Vol.) § 8-210(b) (4); Md. Rule 753. Before denying the motion to strike this juror for cause, the court determined that her recent experience did not render her unable to decide the case impartially. Under the test applicable to striking for cause, she was qualified to serve, and, in any event, she was not a member of the jury which tried Guardino. There was no error in the denial of the request to strike Dorothy Farquhar for cause. McCree v. State, 33 Md. App. 82, 98, 363 A.2d 647, 657 (1976).

Charles Richardson’s response to the inquiry of the court was that his wife "had her purse stolen twice [she just sat her bag down while she was making a purchase and somebody took it,] and unauthorized use of credit cards and the night before last someone stole some of our Christmas shopping.” No one had been arrested. Richardson said that he did not think that these experiences would affect his ability to be fair and impartial if he were put on the jury. Guardino’s request that Richardson be stricken for cause was denied. Richardson was placed on the jury, and although the defense ultimately used all of its peremptory strikes, there were peremptory strikes available at the time Richardson was accepted. There was no showing that Richardson was biased, prejudiced, or otherwise unqualified, and we see no error in the denial of the request to excuse him as a juror for cause. Tisdale v. State, 30 Md. App. 334, 338, 353 A.2d 653, 656 (1976).

III.

(1)

As to the allegations regarding the admission of testimony, Guardino claims error by the court in permitting to go before the jury "testimony respecting what the prosecutrix said to others after the alleged rape and robbery.”

The challenged testimony was elicited by the State from the prosecutrix’s mother, brother, and a police officer, Denise Gill. The complainant made declarations to those persons to the effect that she had been raped by Guardino and threatened by him with harm if she informed the police. The statements were made shortly after the commission of the crimes; the rape occurred between 10 and 11 p.m.; the prosecutrix talked to her mother and brother shortly after 11 p.m. and to Officer Gill about 11:40 p.m. At the time she made the statements, she was "very, very upset.” She was crying. She was described as "very, very distraught.”

We think that it is clear that the evidence of the circumstances under which the declarations were made was sufficient to support a determination by the court that they were recent and occurred while the victim "was still emotionally engulfed by the situation.” Price v. State, 5 Md. App. 127, 132, 245 A.2d 600, 603 (1968). Thus, they were within the res gestae exception to the hearsay evidence rule. Smith v. State, 6 Md. App. 581, 587, 252 A.2d 277, 280, cert. denied, 256 Md. 748 (1969). Furthermore, it is established in Maryland that a complaint by a rape victim may be admitted as original evidence primarily to support the testimony of the victim as to the time, place, crime, and name of the wrongdoer. Also, in a proper case, the victim’s complaint can be a part of the res gestae. Shoemaker v. State, 228 Md. 462, 180 A.2d 682 (1962); Green v. State, 161 Md. 75, 155 A. 164 (1931); Estep v. State, 14 Md. App. 53, 286 A.2d 187 (1972); Smith v. State, supra. No matter what reason the trial judge may have had in denying the objection to the evidence in question, see Robeson v. State, 285 Md. 498, 403 A.2d 1221 (1979), cert. denied, 444 U.S. 1021 (1980), we cannot say that the judge abused his discretion in admitting the challenged declarations. Smith v. State, supra at 587, 252 A.2d at 281.

(2)

Guardino claims error in the admission of evidence respecting a dispute at the time of his arrest at a shopping center parking lot between the police and three of his friends. He asserts that the admission of the evidence prejudiced him in two respects: "it indicates to the jury that [he] associates with 'bad’ people and should not be believed, and also indicates to the jury that his witnesses should be discredited because of their dispute with the police.” The claim stems from the cross-examination of the three friends, Edwardo Johnson, Lolita Barnes, and Juan Ramirez, while testifying for the defense. The inquiry by the prosecution centered on the actions of Ramirez while Guardino was being arrested. Johnson denied unequivocally that Ramirez got in a fight with the police but said that "[w]e were trying to find out why they arrested Mr. Guardino.... We were asking them and they wouldn’t tell us, and then all we asked them very nicely why he was being arrested, and then the police got very agitated and one police officer opened the car door and let his dog out to try and get us out of the shopping center.” Barnes testified without objection as to her recollection of the circumstances of Guardino’s arrest: "[A]ll of a sudden these police cars came all around, and I was, like, wild and the next thing I knew Juan was fussing — everybody was fussing. They were handcuffing ... [Guardino]. This man was going to get a dog out on me, and I didn’t hurt anybody.” She replied to the prosecutor’s question, "Did Juan get into an altercation with the police officer?” by stating that "they had words,” and denied that the words were with a black police officer — "not the way you are asking, no.” It was only when the question, "Did he have words with a black police officer?” was repeated that objection was made and overruled. She explained, "Yes, he was asking the black policeman what was the arrest for. I mean, what was the charge, and the officer wouldn’t say anything. Now, the person he had words with was white.” She was asked, again without objection, "Did he want to get into a fight with the black police officer?” and replied, "No, he just wanted him to answer the question.” The State pursued the matter with Ramirez by asking, "Did you get into a verbal fight with the police officers?” He answered, over objection, "There were some words exchanged,” while Guardino was being arrested. He denied that one Tony "had to take [him] into his car and drive away from there because things were getting a little hot,” although he admitted that Tony encouraged him to get into the car.

There was no reversible error in admitting the evidence to which objection was made. Witnesses may be cross-examined on matters which are apt to affect credibility, test memory, show a relation to a party or cause or to show bias or the like. Kantor v. Ash, 215 Md. 285, 290, 137 A.2d 661, 664 (1958); Jenkins v. State, 14 Md. App. 1, 5, 285 A.2d 667, 670 (1971), cert. denied, 265 Md. 739 (1972). "It is firmly established that the allowance or disallowance of certain questions on cross-examination is normally left to the sound discretion of the trial judge.” Jenkins at 5-6, 285 A.2d at 670. We see no abuse of discretion here. We cannot' say that the trial judge was wrong in determining that the questions were proper as likely to affect the credibility of the witnesses. And we note that the testimony tended to show the witnesses’ bias and reveal their relation to the accused and the cause.

Judgments affírmed.

Costs to be paid by appellant.

      . Rape in the second degree, as here applicable, consists of engaging in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person. Maryland Code (1957, 1976 Repl. Vol„ 1981 Cum. Supp.) Art. 27, 8 463 (a) (1).

      . Maryland Rule 757 d permits the court to give its instructions at any time after the close of the evidence. If the court’s charge is delivered after the argument of counsel to the jury, as is usually done in Baltimore City, the court will be aware of any dispute or not as to the law of the crime and be able to inform the jury whether the instruction on the matter is advisory or binding. But if the court’s charge is delivered before argument of counsel, as was done in the case at hand and as is frequently done in the counties, whether or not there is a dispute as to the law of the crime may present a problem.
      We note that Rule 757 b requires the court "[i]n every case in which instructions are given” to instruct the jury that the instructions are advisory only. Under the dictates of Montgomery v. State, 292 Md. 84, 437 A.2d 654 (1981), this is manifestly not correct.

      . No retrospective question was presented by Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980) because it merely affirmed what it found to be long established law with respect to the law-judging function of the jury.

      . In Montgomery v. State, 292 Md. 84, 437 A.2d 654 (1981), the Court determined the issue with regard to the advisory nature of the instructions without mention as to whether timely objection was made below. A review of the record extract filed with the Court, however, shows that proper exception was made to the instruction at the conclusion of the charge.

      . It was the view of the Court in King v. State, 287 Md. 530, 414 A.2d 909 (1980) that "the mere statement by a juror of his belief that the criminal law concerning marijuana ought to be modified, without more, does not indicate that the juror is biased, prejudiced or unqualified to be a juror in a prosecution for possession and distribution of marijuana.” At 535-36, 414 A.2d at 912. The Court observed: "Many people may personally believe that a particular law is undesirable or should be changed, yet the existence of such a belief does not necessarily mean that the holder would refuse or be unable to apply the existing law to the facts of the case.” At 536, 414 A.2d at 912.