text:
    BETHEL S. ROGGENKAMP v. MATTHIAS A. ROGGENKAMP
    [No. 600,
    September Term, 1974.]

      Decided March 14, 1975.

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

      Arnold M. Weiner, with whom was Steven P. Resnick on the brief, for appellant.

      Benjamin L. Cardin for appellee.
   Morton, J.,

delivered the opinion of the Court.

This is an appeal by the appellant/wife, Bethel S. Roggenkamp, from a decree of the Circuit Court of Baltimore City (Grady, J., presiding) granting the appellee/husband, Matthias A. Roggenkamp, a divorce a vinculo matrimonii.

The parties were married in 1946 at a time when both were officers in the United States Navy. The wife resigned her commission in the Navy and they ultimately took up residence in California. In July 1964 the husband filed suit in California for separate maintenance and the wife filed a cross suit seeking the same relief.

On March 15, 1965, the California court entered an order, pendente lite, directing the husband to make monthly support payments to the wife and enjoined him from encumbering or transferring certain property, including life insurance policies in his name. During the pendency of this litigation, the husband left California and went to Reno, Nevada, where he filed suit for divorce in June 1965.

The California court entered a final decree in July 1965 awarding separate maintenance to the wife; dismissed the husband’s suit; decreed permanent alimony to the wife; and imposed a number of affirmative obligations upon the husband. In addition, the husband was enjoined from filing any domestic relations action against the wife in any other jurisdiction or court and he was specifically directed to dismiss the Nevada divorce action.

In August 1965 the husband moved from Nevada to Maryland and has made his home in this State ever since. He did not comply with any of the provisions of the California decree, asserting that he was unaware of the decree until sometime in 1966.

According to the wife, she learned fiom the Navy Department that her husband was residing in Maryland and in June 1967 she came to Maryland and instituted proceedings to enforce the California decree.

After a hearing in Circuit Court No. 2 of Baltimore City, an order was entered on July 3, 1967, directing the husband to make a lump sum payment of $1,000 to the wife. In addition, he was directed to pay $50 per month toward the alimony arrearages and to make regular alimony payments of $350 per month as provided in the California decree. It was further decreed that the time for filing a responsive pleading to the wife’s suit would be postponed indefinitely so long as the husband complied with the order regarding alimony payments to the wife. The record indicates that the husband continued to comply with the order and the wife sought no further relief either in Maryland or California.

On January 10, 1973, the husband filed a bill of complaint in the Circuit Court of Baltimore City seeking an absolute divorce from the wife who remained a resident of California. The wife filed a motion raising preliminary objections, asserting that the Maryland court should not entertain jurisdiction of the husband’s suit for divorce since he had. not complied with the decree of the California court; he had not sought relief from the commands of the California decree;, and the Nevada divorce proceedings brought by him in 1965' were still pending. After a hearing (Liss, J., presiding), the motion raising preliminary objections was denied, conditioned upon the husband’s dismissal of the Nevada, proceedings, which he promptly had dismissed. In denying' the motion raising preliminary objections, the court found from the evidence adduced at the hearing thereon that the husband was a bona fide resident of this State and concluded that the California decree of 1965 should not be a bar to the husband’s maintenance of a divorce action in this State.

The wife then filed an answer to the bill of complaint and again set out as a defense the failure of the husband to comply with the terms of the California decree, including the provision that the husband be prohibited from bringing a domestic relations suit against the wife in another jurisdiction. The chancellor below, after a full hearing, found that the parties had been voluntarily separated for a period of time sufficient to satisfy the statute and entered a decree- granting the husband an absolute divorce. The decree was entered on May 20, 1974, and incorporated the provisions of the 1965 California decree in favor of the wife, but made no provisions for the payment of alimony arrearages. It did increase the regular alimony payments from $350 per month to $400 per month.

This appeal followed. At the time of argument, counsel advised us that the husband was 78 years old and the wife ten years younger. The husband apparently desires to remarry.

It is first contended that the husband, “having engaged in a course of conduct involving serious and continued contempts of the California court, should not be afforded further affirmative relief with respect to his marital relationship until he has purged himself of contempt.”

Reliance is placed upon the Court of Appeals decision in Skirven v. Skirven, 154 Md. 267, 271, where it was stated: “* * * here the rule is that, while one adjudged guilty of contempt may attack the finding directly, he cannot, so long as it stands unimpeached, be permitted as a matter of right to make any motion, file any petition, or assert any claim for relief, in the particular suit in which the contempt has been adjudicated.” There, a husband had been adjudged in contempt for failure to comply with an order to pay alimony and counsel fees, pendente lite, and the chancellor denied his petition to compel the plaintiff/wife to go forward with the proceeding so long as his contempt remained unpurged.

Reference is also made by appellant to the holding in Gunter v. Gunter, 187 Md. 228, where the chancellor had dismissed the husband’s bill to partition property formerly owned by him and his wife as tenants by the entireties because the husband was in default on alimony payments. The Court of Appeals, while quoting with approval the above language in Skirven, reversed the action of the chancellor in dismissing the bill for partition because “the decree dismissing the bill was not conditioned upon compliance with the divorce decree, but undertook to deal finally with his right to partition.” Gunter, supra, at 233.

Appellant also calls attention to Brewster v. Brewster, 207 Md. 193, 202, where the Court stated: “Finally, the contention that the Chancellor erred, in dismissing his [the husband’s] petition for reduction in the amount of alimony, is without merit for the reason that the appellant [husband] was in default and in contempt. Gunter v. Gunter, 187 Md. 228, 233; Skirven v. Skirven, 154 Md. 267, 271.”

It is at once apparent that the rule enunciated in Skirven, which apparently has been adhered to since, addresses the issue in terms of “as a matter of right”: one who has been adjudged a contemner may not, as a matter of right, claim relief “in the particular suit in which the contempt has been adjudicated.” (Emphasis supplied.) The Court, in Skirven, went on to say, at 271: “The defendant, therefore, if he was in contempt, had no right to insist that the plaintiff proceed with the case until he purged himself of it * * (Emphasis supplied.)

From our analysis of the enunciated rule, we are of the opinion that the Court in Skirven chose its words carefully and, in doing so, intended only to announce that any right that a contemner might have in a legal proceeding could be foreclosed to him, in the discretion of the chancellor, at least until his contempt has been purged. Otherwise stated, an opposing party to the litigation is not entitled, as a matter of right, to bar the contemner from pursuing further action in the proceeding, this being a matter within the sound discretion of the chancellor.

It is to be noted that the Skirven rule speaks in terms of a contemner’s right to proceed “in the particular suit in which the contempt has been adjudicated.” In the case before us, the appellee has not been adjudged in contempt in any legal proceeding in this State. Thus, whether the failure of the appellee here to comply with the California decree could have served as a basis for the chancellor below denying him the right to proceed with the divorce action is not before us since the chancellor in his discretion, which we think he exercised soundly, did not permit the failure to comply with the California decree to serve as a bar to the divorce proceeding here.

We concur in the finding of the chancellor that no useful purpose would be served in compelling the appellee, 78 year old bona fide resident of Maryland, to return to California and purge himself of any contempt of a court of that State. The appellee has continued to comply with the decree entered in Circuit Court No. 2 of Baltimore City on July 3, 1967, and the decree of divorce, which is the subject of this appeal, incorporated substantially all the provisions of the 1965 California decree and, in fact, increased the payments of alimony to the wife from $350 per month to $400 per month. Under the circumstances, we cannot find that the chancellor erred in granting the appellee a divorce, notwithstanding his failure to comply with the California decree.

We are unpersuaded by the appellant’s final argument that since the appellee “first invoked the jurisdiction of the California court over his marital relationship, and since that court, in the exercise of its jurisdiction, issued a valid anti-suit injunction, Mr. Roggenkamp [appellee] should be required to seek dissolution of that injunction before being permitted to secure court action in another forum in derogation of its provisions.”

We agree, as appellant argues, that the California court had the power to enjoin her husband from filing any domestic relations action against her in any other jurisdiction and that the California court had the authority to direct him to dismiss the Nevada divorce proceeding filed by him. At the time the injunctive decree was entered in 1965, it was apparent that both parties were residents of California and had submitted themselves to the jurisdiction of the court by their respective bill and cross bill for separate maintenance. As pointed out in Annot. 54 A.L.R.2d, 1240,1242:

“It is undisputed that a court of equity has the power to issue an injunction, in an appropriate case, restraining one spouse from commencing or prosecuting an action for divorce or separation in a sister state or foreign country.”

See also Donigan v. Donigan, 208 Md. 511; Miller v. Gittings, 85 Md. 601.

The power of the California court to issue such a decree does not, however, necessarily preclude the courts of this State, under appropriate circumstances, from entertaining the enjoined action. As stated in 42 Am.Jur.2d Injunctions § 227:

“Neither the full faith and credit clause nor rules of comity require compulsory recognition of an injunction issued in another jurisdiction against the prosecution of a local action at law. An injunction against the prosecution of an action in another state acts upon the parties rather than the court, and so the court in which the enjoined action is pending has the power to proceed with the litigation despite the injunction. The fact that the plaintiff might be in contempt of the enjoining court is not a matter the foreign court would be compelled to recognize, and the failure of a party to obey the injunction, or of the eourt to take cognizance of the order, will not affect the validity of the decree issued in the action. Nevertheless, subject to some dissent, it has been held that the court may take cognizance of the judicial processes of another state and, as a matter of comity, recognize an injunction issued by the courts of another state, so long, at least, as the recognition of the foreign injunction does not conflict with the rights of citizens of the state in which the action is sought to be maintained.” (Footnotes omitted.]

The power, then, of the court below to entertain this action is beyond question. The appellee, of course, in prosecuting this divorce action may well be in violation of the California injunction and subject to contempt penalties there. But the jurisdiction of our courts to accommodate his divorce action is unhampered by the outstanding injunction. See Stambaugh v. Stambaugh, 294 A. 2d 817 (Pa. Super. 1972); Commonwealth v. Messing, 171 A. 2d 893 (Pa. Super. 1961).

Appellant has referred us to a practice or policy in a number of States where recognition of a foreign anti-suit injunction depends on priority of jurisdiction. Adoption and adherence to this policy would compel us to find that the California anti-suit injunction served as a bar to the appellee’s divorce action in this State since the parties first litigated their marital differences in California. See, e.g., James v. Grand Trunk Western Railroad Co., 152 N.E.2d 858 (Ill. 1958); Alford v. Wabash Ry. Co., 73 S.W.2d 277 (Mo.App. 1934).

We are unpersuaded, however, that priority of jurisdiction is determinative, without more, on the question of recognition of a sister State’s injunction. Indeed, in Peterson v. Chicago, B. & O. Ry. Co., 244 N. W. 823 (Minn. 1932), priority was said to be “immaterial” as to the recognition issue. While we think that priority may well be a factor to be weighed, we do not think that blind adherence to such a rule would serve the ends of equity between the parties. We are of the opinion that “wise judicial discretion is today the only practical answer to the problem” and that the question of comity should be treated on a case to case basis with the end in view of ascertaining what is just and equitable between the parties under all the particular circumstances. Cunningham v. Cunningham, 200 A. 2d 734 (Conn. Super. 1964), at 736.

The chancellor below correctly expressed the problem of this case:

“* * * but what I am really faced with is should Maryland in effect say, Mr. Roggenkamp, if you want a divorce from your wife you would first have to go back to California and let the California Court punish you for contempt. I don’t think [this] is required, assuming that the facts are as they appear on this record. Mr. Roggenkamp, whatever his original intentions were for moving to Nevada in 1965, he has been in good faith a resident of the State of Maryland since 1965, for a period of eight years. He has established a bona fide residence in Maryland and he is engaged in an occupation here in Maryland that is earning him a livelihood and he pays taxes in Maryland, and that he is a voter in Maryland. It seems to me Mr. Roggenkamp is a resident * * * in the State of Maryland, [and] to deny him the benefit of whatever the laws are in the State of Maryland * * * because his wife prefers that he fight the matters out in California, it seems to me it would be more than [is] required under the decisions * * *. Justice does not require if you want a divorce from your wife you have to go three thousand miles across the country and fight it out in California.”

We think the chancellor fairly assessed the equities of the case; and by incorporating substantially all of the obligations imposed upon the appellee by the California court, he did, in effect, give substantial credence to that decree. We shall not disturb his findings and decree.

Decree affirmed; costs to be paid by appellant.

      . Leflar, American Conflicts Law, § 55, p. 119.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    WALTER D. CUNNINGHAM v. THE BALTIMORE AND OHIO RAILROAD COMPANY
    [No. 601,
    September Term, 1974.]

      Decided March 17, 1975.

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

      W. Kennedy Boone, III, with whom were Wachs, Kreykenbohm & Boone on the brief, for appellant.

      Daniel W. Moylan and William P. Nairn, with whom were Byron, Moylan & Umer on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Walter D. Cunningham, appellant/plaintiff, sued The Baltimore and Ohio Railroad Company, appellee/defendant, for damages sustained when his car ran into appellee’s train on March 13, 1972 in Martinsburg, West yirginia. Appellant filed a notice of his intent to rely on the statutes and common law of West Virginia pursuant to Md. Code, Art. 35, §§ 47-50. Judge Irvine I. Rutledge sustained a demurrer to the original declaration with leave to amend. Appellant filed an amended declaration, a demurrer to which was sustained without leave to amend by Judge Rutledge. It is from this action that appellant brings this appeal.

Appellant’s amended declaration reads in pertinent part as follows:

“That at or about 8:10 p.m. on the 13th day of March, 1972, the said Walter D. Cunningham was operating an automobile owned by him which was traveling in an easterly direction on State Route 9, two hundred feet east of the State Route 9/13 intersection in Martinsburg, Berkely County, West Virginia; that the posted speed limit on State Route 9 at that point and at that time was 55 miles per hour; that at that same time the corporate Defendant was the owner and operator of a railroad including both tracks, trains, and spur line, running North and South across State Route 9, a public highway in Berkely County, West Virginia; that as the Plaintiff approached this crossing he was unaware of and had no knowledge of the existence of said spur line crossing; that in addition darkness had fallen and visibility was consequently reduced; that at that time a train made up of an Engine and cars owned by the corporate Defendant and operated by its agents, servants, or employees, had backed in a southerly direction on said track across State Route 9 and was stopped or almost stopped across State Route 9 at the State Route 9 railroad spur line crossing; that it was the duty of the corporate Defendant, acting by its agents, servants or employees to operate its railroad in a careful and prudent manner to avoid injuries to others lawfully traveling on State Route 9; to maintain or provide a watchman or flagman to warn oncoming motorists of the presence of the train standing or almost standing in the darkness across the State road; or to maintain electric safety devices, bells, or lights at or near the mossing herein above described to give adequate warning to oncoming vehicles approaching said spur line crossing of the presence of a train blocking a State road in the darkness, or to give adequate warning by any other means of the fact that there was a spur line crossing and/or that a train was stopped or almost stopped on this crossing blocking the lawful travel of vehicles on State Route 9 in order that the operator of a vehicle approaching the crossing at a rate of speed at or within the posted limit of 55 miles per hour would be warned of the presence of the stopped or almost stopped train blocking State Route 9 in the darkness in sufficient time to be able to come safely to a stop in order to avoid injury to himself and/or in order to stop and/or to look and listen for oncoming train traffic; but in spite of these duties the said corporate Defendant, acting by its agents, servants or employees carelessly and negligently failed to operate its railroad in a careful and prudent manner to avoid injuries to others lawfully traveling on State Route 9; failed to provide a flagman or a watchman to warn of the presence of the stopped or almost stopped train blocking the State road in the darkness; failed to maintain or provide electric safety devices or proper lighting or bells, or other signal devices at or near the above stopped or almost stopped train on said spur line crossing to warn of the presence of the stopped or almost stopped train blocking the State road in the darkness; and/or failed to give, provide, or maintain adequate warning of any other nature or by any other means of the presence of the stopped or almost stopped train blocking State Route 9 in the darkness; and as a result caused and allowed the Plaintiff, who was operating his vehicle in a careful and prudent manner, to crash into a boxcar which was part of the above train owned by the, corporate Defendant, and which was operated by its agents, servants, or employees, and which was situate across the road at the above crossing blocking the entire lane of travel of the Plaintiff.”

The trial judge found that this declaration did not state facts sufficient to establish negligence on appellee’s part and further that the facts established that the appellant was guilty of contributory negligence.

In making our determination of the propriety of the trial judge’s actions, we are bound by the substantive law of West Virginia; procedural matters however are governed by the law of Maryland. Vernon v. Aubinoe, 259 Md. 159, 162, 269 A. 2d 620 (1970); Joffre v. Canada Dry, Inc., 222 Md. 1, 6, 158 A. 2d 631 (1960).

The Primary Negligence of the Railroad

The duty of a railroad to warn motorists at or near a railroad crossing in West Virginia was discussed in Niland v. Monongahela West Penn Public Service Co., 106 W. Va. 528, 147 S. E. 478 (1929) where the Court stated at 479:

“There is no absolute requirement upon a railroad company to blow a whistle and ring a bell at a crossing, unless made so by statute.”

Freeman v. Monongahela Valley Traction Company, 98 W. Va. 311, 128 S. E. 129, 131 (1924).

The statutory duty of a railroad to provide warnings is contained in West Virginia Code, Ch. 31, Art. 2, § 3104 and § 3105.

The former section deals with trains approaching an intersection and provides:

“A bell or steam whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman at a distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling for a time sufficient to give due notice of the approach of such train before such street or highway is reached, and any failure so to do is a misdemeanor punishable by a fine of not exceeding one hundred dollars;”

The latter section imposes a general duty applicable to all intersections and provides:

“Every railroad company shall, at every place where a road or street crosses its railroad on the same level, erect and maintain suitable signboards or notices of warning apprising persons of the danger in crossing its tracks.”

It is thus readily apparent that a railroad’s duty to warn motorists is substantially greater in situations where a train is approaching an intersection than in situations where a train has already crossed the intersection and is therefore blocking the road. It is the latter situation with which we are concerned in the instant case. Appellant’s amended declaration contains no allegation that the railroad violated the statutory duty imposed by § 3105 to post signs on the highway warning motorists of the crossing. The allegation that the railroad “failed to give, provide, or maintain adequate warnings of any other nature or by any other means of the presence of the stopped or almost stopped train” is concerned specifically with the railroad’s duty to warn of the train’s presence across the road and not with the railroad’s duty to warn of the existence of the crossing itself. The West Virginia code requires a warning bell or whistle only where a train is approaching an intersection. The cases cited by appellant in support of his contention are inapposite because they all deal with situations in which a train approaching a crossing fails to give adequate warning. That type situation calls for a greater duty of care on the railroad’s part as is evidenced by the requirements of § 3104 cited above. Reason dictates such a distinction because it is clear that a motorist will be less likely to become aware of a train, often moving at high speed, approaching a crossing than one which is already directly in sight.

Under certain conditions, however, a railroad may have an additional duty to warn motorists.

“As for the assertion that the absence of a flagman or other additional warning device constituted negligence, it is well settled that no general duty exists requiring the maintenance of flagmen or other signaling devices in addition to warning signs at railroad crossings, at least in the absence of conditions making the crossing unusually dangerous.” Morris v. Baltimore & Ohio Railroad Company, supra at 651.

In Hartzler v. Chesapeake and Ohio Railway Company, 433 F. 2d 104 (7th Cir. 1970) quoting from Central Indiana Ry. Co. v. Anderson Banking Co., Ind., 247 N.E.2d 208 (1969) the Court stated the majority rule in this regard at 106-107:

“The doctrine prevailing in most jurisdictions, as the later cases show, is that where there is evidence that the particular crossing, either because of its more or less permanent features or because of circumstances existing and affecting its use at the given time, was more than ordinarily hazardous, a question for the jury or the trier of facts is usually presented as to whether or not reasonable care on the part of the railroad required it to provide a flagman to warn of approaching trains.
“On the other hand, in the absence of evidence of more than ordinary hazard attending public use of the crossing, there is, according to the doctrine generally laid down, no basis for the contention that the railroad company was under any duty to provide a flagman.”

The prevailing definition of an “extra hazardous” or “unusually dangerous” crossing was given in Lundberg v. Missouri-Kansas-Texas R. Co., Tex. Civ. App., 232 S.W.2d 879, 883 (1950):

“The crossing in question was an extra hazardous one if the conditions surrounding it were so peculiarly dangerous that a person of ordinary prudence could not use the same with safety unless the defendant employed extraordinary means to give warning of the presence of its train standing across the highway. * * * Unless the conditions surrounding the crossing on the occasion inquired about rendered it more than ordinarily hazardous, the defendant was not required to take extraordinary means in protecting it.”

Pennsylvania Railroad Company v. Goldenbaum, Del. Supr. 269 A. 2d 229, 234 (1970).

Just what conditions will make a crossing dangerous depends on the factors present in each case. From our review of the cases, both Federal and state, in West Virginia and elsewhere, the following factors appear to be important in the determination:

1. The slope of the road as it meets the tracks (Hartzler v. C. & O. R.R. Co., supra at 106; Buczkowski v. Canton R.R. Co., 181 Md. 377, 384, 30 A. 2d 257 (1943).)

2. The visibility of the tracks or crossing itself due to the terrain or the direction of the road. (Chesapeake and Ohio Ry. Co. v. Elk Refining Co., et al, 186 F. 2d 30, 31 (4th Cir. 1950); Pennsylvania Railroad Co. v. Goldenbaum, supra at 231; Atlantic Coast Line R. Co. v. Johnston, Fla., 74 So. 2d 689, 690 (1954).)

3. The visibility of the train itself due to the angle at which the tracks and the road intersect. (Chesapeake and Ohio Ry. Co. v. Elk Refining Co., et al, supra.)

4. The effect of the grades on the angle of a car’s headlights (Hartzler v. C. & O. R.R. Co., supra at 106.)

5. The lack or invisibility of signs warning of the crossing’s existence (Chesapeake and Ohio Ry. Co. v. Elk Refining Co., et al, supra at 31.)

6. Atmospheric conditions such as fog, dust, mist, snow or rain which would prevent or obstruct normal night vision (Tuck v. Chesapeake and Ohio Railway Company, 251 F. 2d 180 (4th Cir. 1958); Ramsey v. Louisiana & A. Ry. Co., La. App., 70 So. 2d 171 (1954); Lundberg v. Missouri-Kansas-Texas R. Co., supra at 883.)

In the case at bar, appellant alleged no conditions which could make the crossing in question “unusually dangerous” and thus impose additional obligations on the railroad to warn motorists. In that regard he alleged only that darkness had fallen. That alone is not sufficient. Eason v. Missouri Pacific Railroad Company, 191 Kan. 39, 379 P. 2d 351, 353 (1963); Capelle v. B. & O. Railroad Co., 136 Ohio St. 203, 24 N.E.2d 822, 824 (1940).

We, therefore, affirm the trial court’s finding that the appellee was not negligent.

The Contributory Negligence of Appellant

West Virginia follows the majority rule that a driver must be able to stop or control his car within the range of his vision ahead. Wolfe v. Beatty Motor Express, 143 W. Va. 238, 101 S.E.2d 81, 85 (1957); Divita v. Atlantic Trucking Co., 129 W. Va. 267, 40 S.E.2d 324 (1946); 2 Blashfield Automobile Law and Practice, § 105.37, at 363.

In both Wolfe and Divita, plaintiffs were found to be guilty of contributory negligence when they collided at night with unlit tractor trailers which were stopped in the right lane of the highway.

In Tuck v. Chesapeake and Ohio Railway Company, supra, the Fourth Circuit, interpreting West Virginia law, affirmed the trial court’s dismissal of plaintiffs suit. Plaintiff’s decedent while driving along a West Virginia highway struck the 19th car of defendant’s train; the visibility was poor because of rain and fog. The defendant had placed the required warning signs on the highway. The Court stated, at 182:

“We do not here decide that running into the side of a moving train at night is always in law an act of contributory negligence. We hold only that the circumstances shown in the opening statement as elaborated are unequivocal and leave no room for any inference other than one of contributory negligence.”

In Eason v. Missouri Pacific Railroad Company, supra, a case on all fours with the instant case, the plaintiff on an “extremely dark” night struck defendant’s railroad car which was “parked” across a state highway. The plaintiff further alleged:

“That at the time defendant’s train was stopped across the Highway herein mentioned, said defendant did not have any warning signals of any kind at or near its train to warn the public or this plaintiff that it was stopped across the highway; neither did defendant have any watchman or signal man of any kind or nature to warn this plaintiff of the existing danger.
“That the defendant was guilty of the following acts of negligence any and each of which was and were the proximate cause of the accident and resulting damages to plaintiff, to-wit:
(a) Failing to warn the public or this plaintiff of the existence of its train across the highway;
(b) Failing to have lights on said train;
(c) Failing to have a watchman or signal man on the west side of the box car to warn plaintiff to stop.” Id. at 352.

The Supreme Court of Kansas reversed the trial court’s overruling of the railroad’s demurrer and held that the plaintiff’s allegations “not only fail to allege actionable negligence on the part of defendant but also show plaintiff to have been guilty of contributory negligence, barring his recovery.” See Pennsylvania Railroad Company v. Goldenbaum, supra; Ramsey v. Louisiana, supra.

In the instant case, the trial court correctly concluded on the basis of appellant’s amended declaration that appellant was guilty of contributory negligence in failing to stop his car before colliding with appellee’s train.

Judgment affirmed.

Appellant to pay costs.

      . The trial judge in his opinion stated: “It is agreed between the parties that this crossing was protected by the usual railroad cross arms at the crossing and that back a distance of 220 feet from the tracks is a round sign approximately eighteen inches in diameter, with ‘Railroad’ on the sign. There are no gates or flasher lights.” These signs were in compliance with West Virginia Law. Morris v. Baltimore and Ohio Railroad Company, 349 F. Supp. 649, 651 (S.D. W.Va. 1972).


text:
    RUSSELL EUGENE PYLES v. STATE OF MARYLAND
    [No. 609,
    September Term, 1974.]

      Decided March 17, 1975.

      The cause was argued before Thompson, Davidson and Moore, JJ.

      Charles Duvall Smith, with whom were Taylor & Smith on the brief, for appellant.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County and Charles P. Strong, Jr., Assistant State’s Attorney for Prince George’s County on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Russell Eugene Pyles appeals from an order of the Circuit Court for Prince George’s County, Chief Judge Ralph W. Powers presiding, finding him in contempt for his failure to comply with a court order directing that he undergo an examination at Patuxent Institution.

The record shows that on September 2, 1970, appellant received a ten year sentence for manslaughter to begin as of July 14, 1970. On September 3, 1970, the trial judge directed that he be referred to Patuxent Institution for examination to determine his status as a defective delinquent. When it was discovered that the order did not contain a requirement that Pyles cooperate, a second order was signed on April 9, 1974 directing that he be examined at Patuxent and that he submit to any mental, medical or physical tests required by the staff of Patuxent Institution for said purposes. A copy of this order was served upon Pyles on April 18, 1974. Thereafter on the 24th of May the trial court signed an order directing that Pyles show cause at a hearing to be held on July 11, 1974, why he should not be held in contempt for violation of the April 9 order. At the hearing, Dr. H. M. Boslow testified that Pyles had submitted to a physical examination but had refused to submit to psychiatric or psychological examinations. Dr. Boslow added that he and the staff had been unable to determine appellant’s status because of said refusals. Particular problems were encountered with reference to appellant’s intellectual deficiency and emotional unbalance because of the absence of past examinations. Defense counsel stated that the appellant had requested that he advise the court that he had no intentions of submitting to any psychological testing at Patuxent Institution. The trial judge found Pyles in contempt and directed that he:

“. . . be detained by the Division of Correction under this order and not under any other commitment, until such time as he is willing to comply with the Order of this Court dated April 9, 1974, to submit to the examinations enumerated therein; and
“IT IS FURTHER ORDERED, that when defendant agrees in writing to comply with the Order of this Court dated April 9, 1974 the Commissioner of Corrections, shall forthwith transfer defendant to Patuxent Institution.”

I WILLFULNESS OF THE CONTEMPT

Appellant first contends that since the two elements that could not be ascertained by Dr. Boslow were his intellectual deficiency and emotional unbalance, his refusal to cooperate could be 'the result of these factors rather than a contemptuous refusal. The appellant cites no authority to support his argument. Presumably he relies on some of the language of McNeil v. Director, 407 U. S. 245, 92 S. Ct. 2083, 32 L.Ed.2d 719 (1972), particularly:

“For if confinement is to rest on a theory of civil contempt, then due process requires a hearing to determine whether petitioner has in fact behaved in a manner that amounts to contempt. At such a hearing it could be ascertained whether petitioner’s conduct is willful, or whether it is a manifestation of mental illness, for which he cannot fairly be held responsible. Robinson v. California, 370 U. S. 660, 82 S. Ct. 1417, 8 L.Ed.2d 758 (1962).” Id. at 251.

We do not interpret this language as laying down a rule of law that the record must affirmatively show that the appellant’s conduct was not the product of mental or emotional instability, but rather as indicating a possible defense to a charge of contempt. Courts have from time immemorial held that every person was presumed sane in the absence of contrary evidence. Leland v. Oregon, 343 U. S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952). We have followed the universal rule, Tanner v. State, 9 Md. App. 462, 467-468, 265 A. 2d 573 (1970), cert. denied, 259 Md. 736, and see no reason to depart therefrom. See Meyers v. State, 23 Md. App. 275, 326 A. 2d 773 (1974). There is nothing in this record which would tend to show the appellant’s contemptuous conduct was the product of intellectual deficiency or emotional unbalance. It appears rather to be a studied intention to avoid a possible application of Md. Code, Art. 31B.

II SELF-INCRIMINATION

Appellant argues that the trial judge’s order directing him to cooperate was invalid under Savage v. State, 19 Md. App. 1, 308 A. 2d 701 (1973) and Meyers v. State, supra. The orders in those cases specifically provided that information elicited could not be used in any criminal case or prosecution against the accused. We do not think the omission of such a caveat is fatal.

When a witness is called to testify in any proceeding he is permitted to claim his privilege against self-incrimination and to refuse to answer any appropriate question. That does not mean, however, that he can avoid testifying as to any facts which might not incriminate him. Shifflett v. State, 245 Md. 169, 173, 225 A. 2d 440 (1967); Royal v. State, 236 Md. 443, 447-448, 204 A. 2d 500 (1964); 8 Wigmore on Evidence § 2268 (McNaughton Rev. 1961). In the instant case we are unable to see how an I.Q. examination, for example, could in anywise incriminate Pyles or anyone else. It is possible that in securing the psychiatric history appellant might be asked about some crime, not barred by the statute of limitations, and of which he was not previously convicted, but he cannot be permitted to claim his privilege against self-incrimination and thus avoid giving any history of his prior life. In an appropriate case we may well sustain his right to refuse to answer a specific question. Of course, an accused in a criminal case can refuse to testify, Maryland Declaration of Rights, Article 22; Marshall v. State, 182 Md. 379, 35 A. 2d 115 (1943), but in the instant situation Pyles is more akin to a witness than an accused.

As we indicated in Savage v. State, supra, we agree with United States v. Albright, 388 F. 2d 719, 723 (4th Cir. 1968) that “a defendant’s right not to incriminate himself is not violated per se by requiring him in an appropriate case to submit to a mental examination.” We do not think that the difference between an insanity examination and an examination to determine defective delinquency is significant. In both instances the court is trying to protect society and an individual who may be suffering from a mental illness of some type. We reiterate what we said in Savage v. State, supra:

“It follows, said the United States District Court for the District of Maryland in Sas v. Maryland, 295 F. Supp. 389, 411 (1969), affirmed, sub nom., Tippett v. Maryland, 436 F.2d 1153, (1971), cert. dismissed sub nom., Murel, et al. v. Baltimore City Criminal Court, et al., 407 U.S. 355 (1972), that ‘[i]f a compulsory examination under Albright is not a violation of the right against self-incrimination, certainly examination at Patuxent would not be.’ It quoted extensively from Albright and concluded, 295 F. Supp. at 413: ‘This Court accordingly holds that the examination procedures at Patuxent did not violate any right against self-incrimination. This Court entertains no doubt as to this conclusion; but were there any question it would not make the Maryland Act unconstitutional. An objection, if valid, could be made at the time of any later attempt to use such information in any proceeding to convict for crime.’ We are in full accord.” Id. at 18-19.

Ill JURY TRIAL

Pyles next contends he was denied a jury trial. The record does not reveal that the appellant requested a jury trial, thus the issue is not before us. Md. Rule 1085. See, however, Savage v. State, supra and Meyers v. State, supra.

IV ILLEGALITY OF ORDER OF APRIL 9, 1971

Pyles, citing Md. Rule 764 and the doctrine of res judicata, contends that the court was without legal power to pass the order on April 9, 1974 because the prior order, which it modified, was not obtained by fraud, mistake or irregularity. We do not regard the order as invalid under either contention. Appellant cites no case to support his position and we know of none. The order of April 9, 1974 supplemented that which was passed September 3, 1970, directing the appellant to cooperate with the proper authorities in permitting them to make appropriate examinations. The order of September 3, 1970 was an interlocutory order which is subject to change by the court at any time prior to the entry of a final judgment. Hopkins v. Easton National Bank, 171 Md. 130, 135, 187 A. 874 (1936).

7 ALLEGED MODIFICATION OF SENTENCE

Finally appellant contends that the order finding him in contempt was invalid because it tolled his sentence. He contends that the tolling was a modification of his sentence in violation of Md. Rule 764 which precludes a modification of a final judgment except for fraud, mistake or irregularity. We do not regard the order as having such effect; it directed that the defendant “be detained by the Division of Correction under this order and not under any other commitment, until such time as he is willing to comply with the Order of this Court dated April 9, 1974, to submit to the examinations enumerated therein.” The order will preclude parole under the original sentence but does not in any way modify that sentence.

Appellant also alleges that the order violates his right to due process under McNeil v. Director, supra. The holding of that case was that a convicted person could not be held at Patuxent after the expiration of his original sentence if there were no further proceedings. It will be a long time before the appellant’s sentence expires and the principle of McNeil comes into play; there is no need for us at this time to pass upon what further proceedings, if any, may be required to continue Pyles’ incarceration after July 14, 1980 when his current sentence expires.

We point out, as did the trial judge, that Pyles can be released from the contempt order at any time he desires by the simple procedure of taking the required examinations; and that it is entirely possible that the medical procedures at Patuxent could result in a much earlier release from incarceration than he could obtain in any other manner.

Order of April 9, 19?'J affirmed.


author: Lowe, J.,

text:
    DAVID HERBERT RENSHAW v. STATE OF MARYLAND
    [No. 610,
    September Term, 1974.]

      Decided March 17, 1975.

    The cause was argued before Powers and Lowe, JJ., and John C. Eldridge, Associate Judge of the Court of Appeals, specially assigned.

      H. Michael Hickson, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Donaldson C. Cole, Jr., State’s Attorney for Cecil County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

There is an increasing number of disturbing cases where a defendant’s right to representation by counsel appears to be manipulated as a stratagem to induce reversible error. After counsel has been appointed to defend him, the indigent awaits the day of trial before discharging that counsel in open court. Thereupon he prevails upon the court to appoint new counsel or continue the case to permit obtention of new counsel privately or through the Public Defender’s office.

The trial judge, often with a jury empanelled, is caught between the Charybdis of Gideon v. Wainwright, 372 U. S. 335, requiring counsel for indigent defendants and the Scylla of Conway v. State, 15 Md. App. 198, 223, cert. denied, 266 Md. 735; 413 U. S. 920, wherein we held that right did not mean the indigent could pick and choose. With a jury in the box, witnesses subpoenaed and both sides prepared for trial the court will frequently deny the continuance and proceed with the case.

Such were the facts when David Herbert Renshaw was brought before the Circuit Court for Cecil County and called to account on charges of escape and assault and battery. When the case was called the defense attorney advised the judge:

“ . . . Mr. Renshaw advised me this morning, first of all, he doesn’t feel that I have properly advised him of his pre-trial rights. He wants a change of venue. He said that he also wants to plead guilty by reason of insanity—
THE COURT: Not guilty?
MR. BATHON: Not guilty, beg your pardon. Thank you for the correction. And also he would like to have new counsel appointed this morning. I advised you of those In chambers. I am quite upset about it because it is the first indication I have had of any dissatisfaction was this morning when I walked into the Bar Library.”

After considerable deliberation the judge decided to deny the continuance and declined to “appoint new counsel.” He told appellant that:

“. . . What the Court will do is have Mr. Bathon stand by and you, if you desire to make any use of Mr. Bathon, that is entirely up to you. You do not have to use him. You can conduct your own case if you would like. We certainly are not forcing him upon you, but he will be available if you need him for anything and if you do not need him for anything, please just disregard his presence.”

The court assisted by advising appellant on procedural matters including striking the jury, after which the State’s Attorney delivered his opening statement. When Mr. Bathon, discharged by appellant, asked appellant in open court if he desired him “to make an opening statement” on his behalf the judge said:

“Gentlemen, come up a minute with the Reporter.”

Out of the presence of the jury, he said:

“Gentlemen, Mr. Bathon, I realize what an awkward position you are in and I will explain to the Jury after the case is all over that Mr. Renshaw has elected to proceed without your help. But, if I were you, I would not do anything unless Mr. Renshaw asks you to do it. I will try to advise you from time to time, Mr. Renshaw, what I think might be or would be appropriate that would be helpful to you, but I do not want to in any way force Mr. Bathon upon you.
All right. Thank you.
MR. BATHON: Your Honor, will you also advise him that he has the right to cross examine each witness?
THE COURT: Yes. Let me say that now.
I will cover some of your rights with you so that you are aware of them. Or even if you are aware of them, I will make the record show that you are aware of them.
One is that as the State calls witnesses, you have a right to cross examine them and ask them questions. Then when they finish you have a right to produce witnesses yourself and you also have a right to testify yourself if you want to; however, you do not have to testify. And the fact that you do not testify would be no inference by itself that you were guilty. The State has to prove it’s case; it is not up to you to prove that you are innocent. So, for that reason, you do not have to testify unless you want to.
If there are other things that I think would be helpful to you as we go along, I will explain them to you. On the other hand I do not want to do anything to in any way harm your case. So you are here to get a fair trial and as good a trial as we can give you.”

While the court acted with commendable motives in its attempt to see that all of the rights of a defendant were protected, its resolution of the counsel dilemma squarely contravened Md. Rule 719 c.

Md. Rule 719 c has been effective now for two and one-half years. It reads:

“If, at any stage of the proceeding, an accused indicates a desire or inclination to waive representation, the court shall not permit such a waiver unless it determines, after appropriate questioning in open court, that the accused fully comprehends: (i) the nature of the charges and any lesser-included offenses, the range of allowable punishments, and that counsel may be of assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof; (ii) that the right to counsel includes the right to the prompt assignment of an attorney, without charge to the accused, if he is financially unable to obtain private counsel; (iii) that even if the accused intends to plead guilty, counsel may be of substantial value in developing and presenting material which could affect the sentence; and (iv) that among the accused’s rights at trial are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of the charges beyond a reasonable doubt.”

That language is unequivocal and leaves little room for interpretation. To emphasize the importance of strict compliance the Court of Appeals added subsection (f) to that rule stating that:

“The docket entries or transcript shall affirmatively show compliance with this Rule.”

Since the adoption of Md. Rule 719 c effective June 1, 1972 we have on at least two occasions emphasized that the requirements are mandatory. State v. Digges, No. 772, S.T. 1974 (Ct. Spec. App., filed: February 20, 1975) and Taylor v. State, 20 Md. App. 404. We thought it clear from the rules, if not spelled out in painstaking detail, that the court must “determine . . . that the accused fully comprehends . . .” each of the rights and consequences delineated in the rule.

Under the circumstances then, it is apparent to us and should have been made apparent to appellant, that his right to counsel as an indigent is limited to the attorney appointed by the Public Defender, Conway, supra; that since he cannot afford his own counsel and is not entitled under such circumstances to other publicly provided counsel, the continuance requested was not justified; and, that his adamant rejection of his assigned attorney even when faced with proceeding with the trial, “indicates . . . [an] inclination to waive representation . . . .” Forthwith the court should then have recited the litany either by reading the rubrics or fully explaining the substance of the rule. However accomplished, the court must determine that the accused fully comprehended and the record must so reflect. Md. Rule 719 f. Only then may the trial proceed.

Compliance with procedural safeguards mandated by our Legislature and appellate courts may at times appear onerous, but if rights constitutionally guaranteed us are to have meaning they must not only be available, they must be recognized and understood. The Maryland Rules of Procedure were not hastily devised but are rather the result of a great deal of study and deliberation, both by the committee which framed them and the Court which adopted them. These rules have been founded not solely upon a fetish for standardized procedure, but more often than not, good common sense. Here for example, even the most seasoned trial judge without a script to follow may overlook essential rights when informing an accused. The use of the procedural rule’s language will allay the chance of oversight and its consequent reversal. At the same time the rule guarantees that every defendant will be aware of his rights and the effect of waiver.

Judgments reversed and reminded for retrial.

Costs to be paid by Cecil County.

      . Parenthetically, these cases seem to originate with those who have experienced previous incarceration wherein procedural tactics are discussed among the inmates. The more seasoned associates teach the cat the way to the churn.


author: Gilbert, J.,

text:
    CHELSIE A. LILLER v. STATE HIGHWAY ADMINISTRATION
    [No. 613,
    September Term, 1974.]

      Decided March 17, 1975.

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

      Horace P. Whitworth, Jr., for appellant.

      Paul W. Barnett and Charles C. Grice, Special Attorney, with whom were Francis B. Burch, Attorney General, Nolan H. Rogers, Special Assistant Attorney General, State Highway Administration, and Joseph D. Buscher on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The State Highway Administration (State) entered into a contract on April 26, 1967 with E.C. Womack, Inc., (Womack) of Virginia Beach, Virginia, for the construction of approximately four miles of Maryland Route 48, more commonly known as the “Cumberland Thruway” or the “National Freeway”. Sometime prior to the award of the contract, Womack contacted Chelsie Liller (Liller), an Allegany County land owner, part of whose land was being condemned for the highway. Seemingly in anticipation of being awarded the contract, Womack entered into negotiations with Liller for the dumping of waste material on a part of the Liller property not taken by the State. Liller agreed that in consideration of the payment of the sum of Eighteen Hundred Dollars ($1,800.00) to him, that Womack could dump the waste on a specified ten to thirteen acre tract of the Liller land. The Womack-Liller negotiations reached fruition on April 13, 1967, thirteen days before the award of the construction contract to Womack by the State.

After the designated parcel of the Liller land had been filled by the dumping of the excavated waste material, heavy summer rains caused a landslide. On July 14, 1968, hundreds of tons of rock, silt and debris fell from the eastern slope of Haystack Mountain spilling across U.S. Route 220, as well as across the Baltimore & Ohio Railroad tracks. Both Route 220 and the B. & 0. lines were closed until the debris was removed. Other slides, though presumably not of the same intensity, occurred on ten occasions in 1969. In an effort to solve the problem the State, in 1971, constructed a flume in order to divert the highway run-off rainwater away from the waste pile that had been dumped by Womack on the Liller property. Presently, no run-off of rainwater from Md. Route 48 passes over the waste material. Notwithstanding the construction of the flume another slide took place in June, 1972. Route 220 was again closed until the removal of the debris.

The State, in August, 1972, filed a Bill of Complaint for injunctive relief against Liller and Womack, in the Circuit Court for Allegany County. The objective of the suit was to abate a public nuisance, namely, the earth slides falling onto Route 220. The matter was heard before Judge James S. Getty, who, after hearing testimony, the argument of counsel and viewing the property, issued a prohibitory injunction against Liller that forbade Liller’s “maintaining the earth and rock storage material... in its present state.” The court’s order also contained a mandatory injunction that commanded Liller “to abate the nuisance by eliminating the danger of earth slides by whatever engineering practices will reasonably assure the stability of the material, whether that involves grading, compacting, terracing, planting or other action. ...”

Discontented by the trial court’s ruling Liller has appealed to this Court where, in a trinal attack, he asserts that:

(1) The trial court erred in not applying laches and equitable estoppel to the facts in this case.
(2) The evidence does not support the findings.
(3) The trial court has not designated with specificity what action Liller should take to eliminate the nuisance.

Liller does not dispute that the earth slides onto U.S. Route 220 are a public nuisance, but he disclaims responsibility for them. That the offending waste pile is a public nuisance is beyond doubt, since it constitutes an injury to the public at large, or all persons with whom it comes in contact. Adams v. Commissioners of Trappe, 204 Md. 165, 102 A. 2d 830 (1954). We now turn to the resolution of the issues posed by Liller.

Laches and Equitable Estoppel

Liller first asseverates that:

“The Doctrine of Equitable Estoppel and Laches should be applied in this case because the State Highway Administration waited four years after completion of the project before objecting to the manner and methods used in establishing the waste pile in the Hollow that their contractor, E.C. Womack, Inc., constructed on Liller’s land, knowing during the whole period of dumping of this material by E.C. Womack, Inc., that it was in the path of the drainage channels for surface water from the Freeway as engineered for this whole watershed of 100 acres of land. The State Highway Administration acquiesced in the placing of this material in the Hollow by their own construction company because they had the same inspectors and supervisors on the job and if the material was not being compacted or placed adequately according to their judgment they had the right to object to it at the time, if they thought it would interfere with their drainage of surface waters from the Freeway. By waiting four years after completion of the project before making any objection is acquiesce [sic] which is a quasi estoppel and bars the . . . [State’s] right to equitable relief as prayed.”

This argument must fall because not only is it contrary to law, but is based on facts not supported by the evidence. The testimony of the State’s witnesses makes it clear that the dumping of the fill dirt took place entirely on the Liller property. At that time the State was without authority to enter onto Liller’s land in order to determine whether the waste was properly compacted or placed; nor could it have directed a different placement or compacting. Womack was an independent contractor, and the presence of State employees upon the highway construction project was obviously to assure that the highway was built in accordance with the State’s plans and specifications. The State Highway Administration employees were not on the site to police Womack’s activities upon the Liller land. There was no evidence produced by Liller to support his allegation that the State had a duty to see that the waste material was properly dumped, placed and compacted. Moreover, the State was not a party to the Liller-Womack agreement and could not, as the law was then and as Judge Getty noted, “dictate the terms of an agreement to compact waste material on private land.”

As far back as P., W.& B.R.R. Co. v. State, 20 Md. 157 (1863) the Court of Appeals held, quoting with approval Mills v. Hall, 9 Wend. 315 (N.Y. S.Ct. 1832) that, “There is no such thing as a prescriptive right or any other right to maintain a public nuisance----” The holding was repeated in N.C. Railway Co. v. Baltimore, 21 Md. 93 (1863) wherein the Court rejected an argument that laches prevented Baltimore City’s maintenance of an injunction against the railroad. The Court stated flatly . . [N]o lapse of time can legalize a public nuisance, or justify a wrongdoer in continuing . . . [the wrong].” (Emphasis supplied). In other words, laches is not a defense to the enjoining of a public nuisance. See also Block v. Baltimore, 149 Md. 39, 129 A. 887 (1925); Baltimore City v. Fairfield Imp. Co., 87 Md. 352, 39 A. 1081 (1898); Woodyear v. Schaefer, 57 Md. 1 (1881); Commonwealth v. Upton, 6 Gray 473 (Mass. 1856); H. Wood, The Law of Nuisances, § 724 (2d ed. 1883); 66 C.J.S. Nuisances, § 92 (1950).

Liller’s allegation that the State is estopped from proceeding against him is devoid of merit. Liller asserts that if the State had made known its objection to the manner in which the waste was placed upon his property, at the time that it was being placed there, he could have corrected it “at little expense.” The State, as we have previously observed, had no authority to enter upon Liller’s land, was not a party to the Liller-Womack agreement, and did not exercise supervisory authority over disposition of the waste. Mere silence will not ordinarily raise an estoppel against a party. Mohr v. Universal C.I.T. Corp., 216 Md. 197, 140 A. 2d 49 (1958); see also Furst v. Carrico, 167 Md. 465, 175 A. 442 (1934); Biggs v. Stueler, 93 Md. 100, 48 A. 727 (1901). When, however, the particular circumstances require a silent party to speak out in order to protect himself against a loss he might not otherwise sustain, “then the party who has remained silent when it was his duty to speak will be estopped from asserting the defense he would have had but for his silence.” Mohr v. Universal C.I.T. Corp., supra at 205. In the present case there was no more than mere silence on the part of the State employees, and the State was under no duty to speak out and advise Liller relative to the disposal of the waste material. At the expense of redundancy, we repeat that the State had no right to enter upon Liller’s property, nor did it then have the right to interfere in any manner with the Liller-Womack contract or relationship.

We, of course, recognize that had the suit been brought before the Womack bankruptcy Liller might have filed a cross-claim against Womack. Md. Rule 314 b. The record does not, however, indicate when the Womack bankruptcy occurred; but there is an implication that it arose prior to the completion of the construction. In any event, we fail to see how Liller was prejudiced by the State’s delay in bringing the injunction suit. The clear inference drawable from the evidence is that the State, at considerable expense, undertook to do all that it possibly could do, short of resorting to litigation, to abate the nuisance. The construction by the State of the flume in 1971, at a cost of $100,000.00, diverted a large volume of rainwater away from the Liller waste mound, and would thus appear to make his correction of the existing peril less costly and involved.

Sufficiency of the Evidence

Liller contends that it was the State’s original channeling of run-off rainwater into his land that caused the slides. Judge Getty, in his opinion, stated:

“ The Court walked the entire site from above and below the dumping storage area. The front of the fill is very steep and along the top and over the crest are cracks, fissures, deep ruts and other openings that corroborate the testimony of the witnesses that excessive rain, freezing and thawing will inevitably result in future slides unless some remedial action is taken.
Liller contends that the diversion of surface water caused the slides. This may partially account for the initial slide in 1968, but cannot be the cause of the 1972 slide, because all surface water has been diverted since the construction of the flume in the spring of 1971. This action by the [Sjtate did not eliminate the problem, but eliminated surface water drainage as a contributing factor.”

There was evidence that the waste matter rests on a precipitous slope, and that it is “particularly dangerous” because “it crosses two natural swales.” Additional testimony showed that even though the State, as a result of the flume, has diverted water from the waste pile, that one inch of rainfall adds eight million tons of weight to the material. An expert witness for the State said that future slides will occur absent corrective measures, and that such slides could result in not only public inconvenience, but property damage and loss of life.

We think that evidence demonstrating the present perilous condition of the waste pile situate on a steep slope over a State road, together with evidence that the pile has not been properly placed or compacted, and that without corrective measures additional slides will result, is sufficient to support the trial court’s finding of the existence of a public nuisance and the granting of an injunction to compel the abatement of that nuisance.

Specificity of Injunction

Liller attacks the lack of specific direction in the fiat. Liller says:

“ The . . . [decree] did not specifically state what . . . [Liller] should do to abate the nuisance, and . . . [Liller] has been unable to get any definite plan or orders from the State Highway Administration in regard to correcting the situation that would be within the means of [Liller] ... .”

In effect we asked to remand and instruct the chancellor to set out some sort of “A,B,C’s” of required compliance. Patently, Liller would have preferred the chancellor to specify those things Liller should and should not do. Decrees in nuisance cases that detail those things required to be done and those which should not be done are not the rule, but the exception. Bishop Processing Co. v. Davis, 213 Md. 465, 132 A. 2d 445 (1957); Fox v. Ewers, 195 Md. 650, 75 A. 2d 357 (1950). Generally, decrees in nuisance cases, “should be passed with only such specific prohibitions as appear to provide the only remedies; . . . the offending party should be permitted to adopt such measures as it sees fit to accomplish the desired result.” Bishop Processing Co. v. Davis, supra at 475. We think the decree passed by Judge Getty, in the instant case, that Liller cease maintaining the wastepile “in its present state”, and take such action as is necessary to “assure the stability of the material” is in keeping with the general rule regarding injunction decrees in nuisance cases. We, thus, conclude that the decree as passed was correct.

Decree affirmed.

Costs to be paid by appellant.

      . At the time of the entry into the contract by the State the Highway Administration was not then in existence. See Laws 1970, Ch. 526, § 1. Therefore, the contract was apparently executed on behalf of the State by the then State Roads Commission, predecessor of the State Highway Administration.

      . It appears from the record that the State proceeded by way of the so-called “quick take” See Md. Ann. Code art. 89B, § 9; Real Property Article, § 12-102 and Md. Rule U6. See also State Roads Comm’n v. Pumphrey, 260 Md. 633, 273 A. 2d 81 (1971), in which the Court notes the two alternative methods available to the State for acquiring immediate possession.

      . Liller argues that Womack formed its contract with the State prior to the Womack-Liller agreement, but the record clearly supports the contrary.

      . Womack did not answer the suit. The record reveals that Womack had gone into bankruptcy sometime prior to the institution of the instant case.

      . Since the occurrence of the events giving rise to this case, the law has been changed so that the State now has a duty to intercede when the dumping of waste material will affect the environment. See Natural Resources Article, § 1-303 and § 8-1105.

      . But see n. 5 supra.


author: Orth, C. J.,

text:
    HENRY LEON HERD v. STATE OF MARYLAND
    [No. 614,
    September Term, 1974.]

      Decided, March 17, 1975.

      The cause was submitted on briefs to Orth, C. J., and Moylan and Gilbert, JJ.
    Submitted by John W. Sause, Jr., District Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General and Donaldson C. Cole, Jr., State’s Attorney for Cecil County, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

On 23 April 1974 in the Circuit Court for Cecil County HENRY LEON HERD was found guilty by a jury of committing various crimes on 16 September 1973 as charged in seven counts of a fourteen count indictment. The crimes of which he was convicted and the sentences imposed on 29 May were as follows:

1st count: daytime breaking of the dwelling of John Charles Green with intent to steal —10 years;
2nd count: petit larceny of goods of Green — 18 months concurrent with sentence under 1st count and make restitution in amount of $75;
6th count: daytime breaking of the dwelling of Archie K. and Anna L. Powell with intent to steal — 10 years concurrent with sentence under 1st count;
7th count: grand larceny of goods of the Powells — 10 years concurrent with sentence under 1st count, and “that he be directed, at the end of any sentence and parole period to continue under indefinite probation with the Department of Parole and Probation until restitution is made in the sum of $39 plus whatever damage was done to the T.V. set”;
12th count: petit larceny of goods of Michael Satterfield — 18 months concurrent with sentence under 1st count and restitution “for whatever damage was done to the guitars”;
13th count: petit larceny of goods of Robert Powell — 18 months concurrent with the sentence under 1st count and restitution “for whatever damage was done to the guitar in that case”;
14th count: petit larceny of goods of Teddy Kline — 18 months concurrent with sentence under 1st count and restitution “for whatever damage was done to the guitar in that case”.

Herd appealed.

ISSUES FOR DECISION

I. Was Herd improperly denied the right to alternate challenges of jurors?

II. Was the evidence sufficient to sustain the verdicts under the 1st and 6th counts?

III. Did the court err “in refusing to advise a witness that he could not be compelled to give self-incriminating testimony?”

IV. May his probation continue beyond the sentence actually imposed?

I

When the indictment came on for trial and before the jury were sworn on their voir dire, the State moved for the entry of a nolle prosequi as to the 4th and 5th counts. The motion was granted. Maryland Rule 711. The jury were examined on the voir dire. Defense counsel said: “There seems to be some question about the number of strikes. I was under the impression that larceny is a common law felony which means he can go to the penitentiary, so wouldn’t that entitle me to 20 strikes?” The court replied: “That is why we took the nightime burglary out. You have 4 strikes.” Proceedings were had to select the jury. The transcript shows what happened:

“THE COURT: You can make your strikes, Gentlemen, please.
MR. COLE [State’s Attorney]: Your Honor, it will have to be reduced to 20.
THE CLERK: Take the first 20 names and take 4 strikes out of those, please.
THE COURT: Why do you want them called separately to the box?
MR. RUBENSTEIN [Defense Attorney]: Your Honor, if the State and Defense strike the same individual, in essence what I am doing is losing a strike by that method.
THE COURT: Well, you are to sit there and strike off the names, now. If you want 12 jurors called to the box so you can look at them, we will do so.
MR. RUBENSTEIN: That would be my reason.
THE COURT: Well, call 12 jurors to the box, Mr. Clerk.
(Twelve prospective jurors were called to the jury box at this time.)
THE COURT: Mr. Rubenstein, if I understand it, the State is not obliged to tell you who they might strike. You understand that?
MR. COLE: Your Honor, if he wants to look at 12 jurors I think that we could put the rest of them up here.
THE COURT: Do you want these chairs filled up?
MR. RUBENSTEIN: No.
MR. COLE: That would be the best spot, over there.
THE COURT: Whatever Mr. Rubenstein wants.
MR. RUBENSTEIN: No. I’ll take my strikes in this fashion. I am prepared to strike.
THE COURT: Strike 4 names off that list.
MR. RUBENSTEIN: Yes, sir.
(The Jury was impaneled and sworn at this time.)”

The judge was wrong. Rule 746 b, provides: “At the request of a defendant peremptory challenges shall be made alternately, beginning with the State.” Herd was entitled to have the jury selected pursuant to the Rule. Contrary to the belief of the trial judge, the State was “obliged to tell who they might strike”, as they would be the first to strike under alternate challenges. And Herd was correct in his view that under the procedure insisted on by the court, he might well lose a challenge by both parties striking the same juror. The State now suggests that “a review of the record does not necessarily show that [Herd] requested that the challenges be made alternately.” It recognizes, however, that Defense counsel “appeared to be concerned about the possibility of both the State and [Herd] striking the same juror,” but in its view “there does not appear to have been any specific request that the peremptory challenges be made alternately.” It concludes that the point is not properly before us for review under Rule 1085. We do not see it that way. Rule 522 b, makes clear that “[f]or purposes of reconsideration by the trial court or review on appeal, it is sufficient that a party at the time of ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court, and unless requested by the court it shall not be necessary to state the grounds therefor.” In the light of Rule 746 b, we think that Herd adequately made known to the court that he desired to have the peremptory challenges made alternately. When defense counsel indicated that he would “take my strikes in this fashion” it was in the frame of reference of whether he was to “look at 12 jurors” or to have “the chairs filled up” with the rest of the jurors. We find no effective waiver of Rule 746 b, in the circumstances. See Pearson v. State, 15 Md. App. 462, 468. Cf. Bremer v. State, 18 Md. App. 291.

Having found that Herd sufficiently requested that peremptory challenges be made alternately as required by the Rule, and did not waive its operation, the question is the effect of the denial of the procedures provided by the Rule. It is our opinion that the Rule is mandatory. Upon request of a defendant, peremptory challenges shall be made alternately, beginning with the State. No discretion thereon is in the trial court. See Bremer v. State, supra. “[T]he right to exercise the peremptory strike is unfettered. . . .” Brice v. State, 264 Md. 352, 366. It represents an important right “vital to the conduct of a criminal cause in this State.” Johnson v. State, 9 Md. App. 143, 149, as quoted in Cook v. State, 18 Md. App. 395, 400. See Green v. State, 19 Md. App. 683. In Pearson v. State, supra, at 465, we noted that the Court of Appeals in Turpin v. State, 55 Md. 462, quoted Proffat on Jury Trials, § 155 with approval: “The right of peremptory challenge is deemed a most essential one to a prisoner, and is highly esteemed and protected in the law.” In Pearson we held that the failure of the trial court to allow the peremptory challenges to which the accused was entitled was clearly reversible error and could not be deemed harmless error. In Spencer v. State, 20 Md. App. 201, we held on due process grounds that interference with the orderly procedure of the peremptory challenge of jurors alternately required reversal of the judgments without a showing of prejudice, quoting at 208-209, Swain v. Alabama, 380 U.S. 202, 218-219. Although the case before us is in a different factual posture than Spencer, the effect of the trial court’s ruling is the same in each case.

Once again we are obliged to point out that the Maryland Rules of Practice and Procedure are precise rubrics “established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.” Brown v. Fraley, 222 Md. 480, 483. See Isen v. Phoenix Assurance Co., 259 Md. 564, 570; In re Arnold, 12 Md. App. 384. We hold that the arbitrary action of the court impaired the right of Herd to the use of his peremptory challenges. It requires that the judgments be reversed and a new trial granted.

II _ HI _ IV

Because of our holding we need not decide the other issues raised.

As to the second issue, however, see St. Clair v. State, 1 Md. App. 605, 621-622, and Reagan v. State, 4 Md. App. 590, 595. We note that the State suggests that when the State’s witness Wayne John Cothin said, “It was dark”, he was not referring to the time the dwelling was broken but describing the stolen stereo set.

With respect to the third issue, the privilege against self-incrimination is one personal to the witness which only he may assert. Royal v. State, 236 Md. 443; Boone v. State, 3 Md. App. 11. See McDonald v. State, 10 Md. App. 258.

As to the fourth issue, concerning the placing of Herd on “on indefinite probation”, we call the trial court’s attention to that part of Code, Art. 27, § 641A which provides: “The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years.” And see Watson v. State, 17 Md. App. 263.

Judgments reversed; case re-ma,nded for a new trial.

      . The date of 14 September 1973 in the indictment was amended in open court to read “on or about” 16 September 1973.

      . Motion for judgment of acquittal as to the 11th count (grand larceny of goods of Michael Satterfield) was granted at the close of evidence offered by the State. Motions for judgment of acquittal as to the other counts were denied both at the close of evidence offered by the State and at the close of all the evidence.
      It appears from the transcript of the trial that the court gave counsel and the jury “a copy of possible verdicts” but that document is not included in the record before us. The Clerk inquired of the jury with respect to their verdicts only as to counts 1, 2, 6, 7, 12,43 and 14, and the verdict as to each was guilty. The Clerk also harkened a verdict of guilty as to the 9th count, but no such verdict was rendered by the jury. The docket entries state that the 3rd count (receiving stolen goods of Green of a value of less than $100) merged with the second count; that the 4th count (burlary of the Green dwelling) and the 5th count (burglary of the Powell dwelling) were nolle prossed; and that each of the 8th count (receiving stolen goods of the Powells of a value of $100 and upwards), the 9th count (petit larceny of goods of the Powells), and the 10th count (receiving stolen goods of the Powells of a value of less than $100) merged with the 7th count.

      . Rule 746 implements Courts Art. § 8-301. Section a 1 of the Rule provides that each defendant shall be permitted 20 peremptory challenges in a trial in which he is subject to a sentence of death, life imprisonment or 20 years or more of imprisonment. By subsection 2 of § a, in all other cases each party shall be permitted 4 peremptory challenges, several defendants ordinarily being considered a single party. A person convicted of burglary may be imprisoned for not more than 20 years. Code, Art. 27, § 29. See Code, Art. 27, § 30 (a).

      . Courts Art. § 8-301 (c) requires the clerk of the court to “provide a sufficient number of prospective jurors to allow the parties to exercise the peremptory challenges permitted by this section or Rule 746.”


text:
    ANTHONY LAMONT MOLLAR v. STATE OF MARYLAND
    [No. 618,
    September Term, 1974.]

      Decided March 17, 1975.

      The cause was argued before Powers and Lowe, JJ., and John C. Eldridge, Associate Judge of the Court of Appeals, specially assigned.

      Paul Mark Sandler, Assigned Public Defender, with whom was Anton J. S. Keating, Assistant Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Ronald T. Osborne, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The question we are asked to decide is an evidentiary one relating to the identity exception to the rule excluding evidence of prior offenses. The rule was iterated by the Court of Appeals in Wentz v. State, 159 Md. 161, 164 and reiterated most forcefully in this Court by Chief Judge Murphy, now Chief Judge of the Court of Appeals. After reciting the general rule of exclusion, the Chief Judge turned to the exceptions which he elected to denominate rules of admissibility rather than exceptions to the rule of exclusion:

“As more particularly crystalized in Cothron v. State, 138 Md. 101, 110, the rule is that evidence of other crimes is admissible to prove the specific Crime charged when such evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. To like effect, see Jones v. State, 4 Md. App. 445; Thomas v. State, 3 Md. App. 708; Gilchrist v. State, 2 Md. App. 635; Loker v. State, 2 Md. App. 1; Gorski v. State, 1 Md. App. 200.” [Emphasis added]. Gordon v. State, 5 Md. App. 291, 306, cert. denied, 252 Md. 730.

Although identity is regularly recited, we have not had cause in Maryland to apply the identity exception where it was the sole ground for admissibility of prior convictions. Appellant notes that C. McCormick, Evidence (2d ed.) § 190 at 451 cautions that identity evidence is usually linked with another exception such as motive or “larger plan” (common scheme). We note that the United States Court of Appeals for the 4th Circuit interprets McCormick as saying that “the identity exception is not really an exception in its own right, but rather is spoken of as a supplementary purpose of another exception.” United States v. Woods, 484 F. 2d at 134. As persuasive as such authority may be, we are of course not bound by federal decisions other than those of the Supreme Court interpreting provisions applicable to the states. Wiggins v. State, 22 Md. App. 291.

Although we may agree with McCormick’s further observation “that the evidence will usually follow . . . some one or more of the other theories . . .,” we do not conclude, as did the Woods court, that that which usually occurs, must occur. On the contrary, we view Maryland law as in accord with 1 Wharton’s Criminal Evidence, § 243:

“Evidence of an independent crime is admissible when such evidence tends to aid in identifying the accused as the person who committed the crime charged.”

To hold otherwise would render the identity exception a purposeless existence. If the evidence of prior crimes is to be admitted to prove identity only when there is another applicable exception, identity is but another windmill for Quixotic Academe, since the evidence of prior crimes would be admitted under the other exception with or without identity.

We have no quarrel, however, with appellant’s argument that the probative value of the evidence should be weighed against the prejudicial effect upon the jury. Woods, 484 F. 2d at 134 again relies upon McCormick:

“[S]ome of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.” § 190 at 448.

Facts

If conceived by a bar examiner the case at bar could not better determine the ability of the identity exception to stand alone. The victim was a young lady accosted by appellant at gun point as she was going home at an early morning hour after having worked the night shift. She was taken to a parking lot by appellant, raped and forced to commit fallatio. He then took her to an empty garage under threat of bodily harm.

Using commendable ingenuity augmented by her instinct to survive, the victim:

“. . . started talking to him, like I was trying to talk some sense into him ... I always believed you could talk your way out of anything.”

They discussed a number of subjects related to why he had done what he did, his social life and his life generally.

. . half the time he talked like he had some sense and sometimes then he just talked real crazy like.
I was asking him about his life. He was telling me that he spent most of his life in jail, he was on parole, he had been arrested before for assault, attempted murder and rape. And that I was telling him, you know, your parents told you all your life you weren’t any good, but I believe there is good in anybody. Like no matter what you do you can do what that other person tells you to do if you believe you aren’t any good in your mind. I was telling him everybody is good, he should just do what he fell [sic] was right, no matter what his parents told him. Being in jail all his life he could overcome if he really wanted to. He was telling me I was the only person that talked any sense into him. All his life he heard how wrong he was, what he done. I told him I hadn’t eaten anything since that afternoon. I said, how about taking me down, I knew where there was a Little Tavern on Baltimore Street. I figured if I could get there I could run, because I know there are people around there. So I said, I want my Avon. So we got out, we started walking down. He walked me way out to around —”

As they walked near the Post Office Building, the victim threw a bottle of perfume at appellant and escaped by running into the building.

Subsequently the police asked her to review photographs for the purpose of identification. She identified one as resembling her assailant. A month later she spotted appellant in a phone booth and called the police who apprehended him. She again identified appellant in court as her assailant.

A bank security guard to whom she had waved as she was being forced to the parking lot by appellant was called to testify. Although he corroborated the time, place and male companion portions of her testimony, he was unable to identify appellant. He had not seen the male companion’s face.

Appellant put on no testimony. From the thrust of his cross-examination, however, it is apparent that his defense was directed to lack of proof of criminal agency (mis-identification) rather than corpus delicti or consent. When cross-examining the victim, appellant attempted to shake the positiveness of her in-court identification by referring back to her initial attempt to identify her assailant from photographs:

“Q Let me direct your attention, if I might, to another time when you were just as positive when Det. Holtzman asked you to come down to the Central District just an hour or so after this incident, and he showed you a number of photographs, did he not?
A Yes, sir.
Q Did Det. Holtzman ask you to be very deliberate when going through the photographs?
A He asked me was I sure. I said no, I’m not sure, but he resembles the guy that attacked me, but I can make a positive identification if I saw him again.
Q Did Det. Holtzman tell you to be very deliberate and to look very carefully at those photographs, not to make an identification unless you were sure?
A He told me to look at them very closely, yes, he did.
Q Did he tell you not to make an identification unless you were sure?
A He told me not to make an identification but I also told him I wasn’t sure, but he favored the guy. I always emphasized that.
Q Det. Holtzman relayed to that official that you had picked out an individual from photographs?
A Yes, he did.
Q Det. Holtzman told that official that he wanted an arrest warrant, did he not?
A Yes, he did.
Q Did that court official ask you if you were positive?
A Yes. I also told him I wasn’t positive, but he favored the guy.
Q And then?
A Because I know what you’re trying to do too, but he’s not the one I picked out.
Q I’m trying to bring out all the facts for the jury so they can make a decision. After you said whatever you said to that court official an arrest warrant was issued for Marvin Boyd Bailey, is that right?
A Yes, it is.
Q And then was there a photograph, were there any other photographs among the two hundred, two hundred and fifty photographs that looked as though they resembled your assailant?
A I guess there might have been quite a few but that’s not the one I picked out.”

Appellant then caused her to acknowledge the rather pecular circumstance of her subsequent recognition of appellant a month later. The victim was participating in the birthday celebration of a friend at the Globe Club.

“Q And then would I be not correct if I stated all four of you went out north of Baltimore looking for ghosts, is that right?
A Yes, we went, we were at the club talking about ghosts and spooks and Laverne and her boyfriend Jimmy were saying there was this place he took her before that its foggy, its kind of eerie. They asked me would I mind going. I said no. We went out there for a ride and we got donuts and hot chocolate.
Q It was on the way back from this excursion that you saw Anthony Mollar?
A Yes.
Q Let me make one thing clear for the jury; have you ever seen Anthony Mollar?
A Not until he attacked me, no, I hadn’t.
Q In any event you were going by a phone booth at Cold Spring and the Alameda, is that right?
Q And you looked over, and this is four o’clock in the morning, you saw an individual in the phone booth, is that right?
A He was out of the phone booth crossing Cold Spring Lane.
Q But you never saw his face at that time?
A No, I saw the features of him. I saw the way he walked and the characteristics of the guy that attacked me and it’s the guy that attacked me.”

It is enough to say that appellant’s attack upon the victim’s identification was both extensive and sufficiently effective to cause the prosecutor to be concerned about its effect upon the jury. The concern was evidently justified as borne out by questions later submitted by the jury during their deliberations. Two questions which the court was not able to answer related to facets of identification raised on cross-examination.

At one point in its case in chief, the State proffered appellant’s record:

“MR. OSBORNE: Your Honor, during the testimony of the victim, Miss Tisdale, she related that her assailant told her some of his background, including among other things that he had been arrested for attempted murder. He was in fact convicted on a charge of assault with intent to murder, the same thing in the lay mind. That conviction took place in 1966. We would not only offer that certified copy of the record of conviction in our case in chief at the appropriate time, but also would want to bring that out on cross-examination for the same purpose, it being circumstantial evidence tending to show that the identification, tending to prove the identification of the assailant was this defendant.
THE COURT: I’m not concerned about the impeachment. If in fact the defendant takes the witness stand I’m only concerned now about the issue do you intend by way of substantive evidence to produce the fact he was in fact convicted of assault with intent to murder and he was on parole at the time of the offense, one or both?
MR. OSBORNE: Both. We have documentation as to the assault with intent to murder. Should he take the stand we intend to bring out on cross-examination he was on parole at the time of the offense.
THE COURT: We are talking about the case in chief.
MR. OSBORNE: In the case in chief.
THE COURT: Do you intend to introduce it before you rest?
MR. OSBORNE: Yes, a certified copy of the record showing he was convicted of assault with intent to murder. We merely want to corroborate.
THE COURT: Also a certified record as to the parole at that time?
MR. OSBORNE: I do not have such a record at this time, Your Honor.
THE COURT: I’ll sustain the objection as to introducing it in chief at this time, with the understanding if in fact the defendant testified you will be allowed to cross-examine as to that issue, even though he was a youth. If he does testify then I will have to concern myself with the issue as far as rebuttal testimony is concerned.”

The State closed its case and appellant’s motion for judgment of acquittal was denied. Instead of risking introduction of its evidence on the appellant’s decision of whether to take the stand, the State moved to reopen its case:

“MR. OSBORNE: In order to present testimony from Mr. Steiner, of the Parole Department, which would indicate that this defendant, Anthony Mollar was in fact on parole status on May 11th, 1973, the date of this offense. And also to offer a certified . copy of the record of conviction for the offense of assault with intent to murder. These two proffers would be made in order to tie in with the victim’s testimony as to admissions as to that offense and that parole status.”

The judge overruled appellant’s timely objection and the evidence was introduced. However, he assiduously adhered to the admonition of Wharton, Supra, § 264 that “Where evidence of another crime is admitted, the trial judge must instruct the jury as to the limited purpose for which it is introduced.”

“Now in this case I did allow evidence as to a prior record of the defendant. Also I allowed evidence to be presented that the defendant was on parole on May the 11th, 1973. Now the law is clear in Maryland, I read you the general law, that when a man is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he’s guilty of that offense alone and that under ordinary circumstances proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded. In other words, in lay language a man may have committed another crime and be absolutely innocent of the crime charged against him. Logically one crime does not prove another, nor tend to prove another. That is the reason for this rule. However, the rule is not without exceptions. Evidence of other crimes may be allowed under certain exceptions. One exception being the identity of the person charged with the commission of the crime on trial. Now I have allowed this evidence as to the prior record and as to the fact he was on parole to come in only and to be considered by you only, and I stress this, I allowed it to come in only, and to be considered only by you on the question of identification. I specifically point this out to you because you have probably been instructed or will be instructed if a defendant takes the witness stand, even then if it comes out he has been accused of the crime, that prior convictions are to be considered then only as they affect his credibility and the Judge will instruct you again, that you are not to convict a person upon things he has done in the past for which he has been tried and for which he has paid the penalty. But you are only to consider them insofar as this case as it relates to the identity of the individual under all the facts and circumstances of this case. Again, the law is clear when a man is put upon trial for one offense he is to be convicted by evidence which shows he’s guilty of that offense alone, and under ordinary circumstances as I said before proof of guilt of one or other offenses is wholly excluded, because as I said before you cannot convict this defendant or any other defendant upon things he has done in the past, for which he has been tried and paid the penalty. The only reason that the evidence was allowed to be presented to you in this case was as to, one, his parole and two, his past convictions, that you may consider it only as bearing upon the question of identity. As I pointed out to you, there has been the question of identity raised by counsel.”

Decision

We do not accept appellant’s argument that the use of the relevant part of appellant’s prior record did not qualify under the identity exception. To the contrary, it would appear that if there is purpose to that exception, the circumstances here were molded to fulfill that purpose. Although no limiting instruction is a guarantee that all jurors can erase the hostile “guilty in one, guilty in all” feeling evidence of prior conviction may evoke, we find the actual need for the evidence of the other crimes, in the light of “. . . the other evidence available to the prosecution, the convincingness of the evidence [from] the other crimes . . .” that the accused was the actor [there] and the strength . . . of the other crime’s evidence in supporting the [identity of the assailant] . . .” far outweighs “the degree to which the jury [would have probably been] raised by the evidence to overmastering hostility.” McCormick, supra, stated more succinctly the necessity for and probability of verifying the assailant’s identity far outweigh the chance of prejudicial irrelevancy.

Judgment affirmed.

      . McCormick says: “(8) To prove identity. This is accepted as one of the ultimate purposes for which evidence of other criminal conduct will be received. It is believed, however, that a need for proving identity is not ordinarily of itself a ticket to admission, but that the evidence will usually follow as an intermediate channel, some one or more of the other theories here listed.” Appellant feels that Thomas v. State, 3 Md. App. 708, 713 lends support to that premise because the Court “discussed the identity exception as embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.” We do not agree with appellant that Thomas supports his premise simply because that case treated with two exceptions simultaneously, i.e., identity and common scheme or plans.

      . Since the purpose of all evidence by the State in a criminal case is to “prejudice” the defendant, our use of the term in its context here shall mean to connote the raising of hostility in the jury by factors not directly related to the crime at issue.

      . Detective Holtzman testified that a warrant was received for the subject she photographically identified, but later quashed.

      . Apparently a record of an additional conviction unrelated as corroboration of the victim’s conversation with appellant, was held in reserve for impeachment purposes had appellant elected to testify, but was not offered or introduced for identity purposes.