text:
    NATHAN MARKOWSKY v. WILLIAM SMITH
    [No. 611,
    September Term, 1976.]

      Decided February 10, 1977.

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

      William S. Barton, with whom were George L. Huber, Jr. and Arnold, Beauchemin & Huber, P.A. on the brief, for appellant.
    No appearance for appellee.
   Powers, J.,

delivered the opinion of the Court.

Appellant here, Nathan Markowsky, was sued in the Superior Court of Baltimore City by William Smith, appellee, for damages alleged to have been sustained by Smith when their two automobiles collided on Washington Boulevard in Baltimore on 21 November 1974.

In a deposition taken while the case was pending, Smith described how the collision occurred. He said that he was driving a taxicab east on Washington Boulevard, when he decided to turn around to head west, to look for a fare. He made a right turn off of Washington Boulevard into “a large yard for parking trucks”, and turned around. He came back out onto Washington Boulevard, intending to make a left turn and head west. He was facing north, with his cab a little over halfway across the center line when Markowsky’s car, going east, hit the left side of the cab. He said the damage on his cab was at the front left door and rear side post.

On 2 December 1975 Markowsky filed a motion for summary judgment, supported by appropriate excerpts from Smith’s deposition, and a memorandum of points and authorities. He requested a hearing on his motion. Smith filed nothing responsive to or in opposition to the motion for summary judgment. His counsel appeared for argument of the motion, held before Judge Shirley B. Jones on 29 January 1976. Judge Jones granted the motion, and on 2 February 1976 entered judgment for costs in favor of the defendant.

Eighty-four days after the judgment absolute for the defendant had been entered, Smith filed, on 26 April 1976, pursuant to Maryland Rule 625, a motion to set aside the judgment. As the ground of his motion he alleged fraud. He alleged (correctly, this time) that Markowsky was travelling east, but was in a westbound lane; that Markowsky had known that fact since the date of the accident, and had not openly revealed it; and had thus committed a fraud upon the court.

Then, to the utter mystification of this Court, Smith proceeded to allege in his motion that only after the summary judgment was granted did he learn the true facts in the case, which, if known earlier, would have precluded the summary judgment. As if it were not enough for a •driver involved in a motor vehicle collision to allege that he did not know the true facts for some 15 to 17 months after the collision, Smith filed with his motion an affidavit in which he set out his version of the facts and made oath that he had personal knowledge of those facts. Obviously, personal knowledge could come only from observation at the time.

An answer was filed by Markowsky to the motion to set aside the judgment. A memorandum supporting the answer was filed. The motion was heard before Judge Jones on 1 July 1976. On 6 July she filed this ruling:

“There is no evidence of fraud as plaintiff asserts in his motion to set aside the summary judgment of February 2, 1976. It does, however, appear to this court that a mistake was made in granting the judgment in that there is an issue of material fact in dispute which was not brought to the attention of the court at the hearing on said motion. Under the circumstances judgment of February 2, 1976 in favor of the defendant is hereby stricken and the case will proceed to trial.”

The docket entry shows the judgment stricken. Markowsky appealed, and argues here that the court erred in striking the judgment.

If the order was not appealable, we lack the power to entertain the issue. It is clear under the authorities, however, that the order is final, and therefore appealable. Code, Courts Art., § 12-301. In Ventresca v. Weaver Brothers, 266 Md. 398, 292 A. 2d 656 (1972), the Court of Appeals declined to dismiss an appeal from an order setting aside an enrolled judgment,, as not final, and therefore not appealable. The Court said, at 403:

“Thus, since the order appealed from vacated an enrolled judgment, appellee’s contention is controlled by Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 263 A. 2d 868 (1970), where, in holding that ‘an order striking out a judgment more than thirty days after entry is in the nature of a final order appealable to this Court,’ we cited with approval Gay Investment Co. v. Angster, 231 Md. 318, 322, 190 A. 2d 95 (1963), and Williams v. Snyder, Adm’r, 221 Md. 262, 267-68, 155 A. 2d 904 (1959). Those decisions and other authorities cited in Williams, make it clear that one obtaining an enrolled judgment acquires a substantial right which, if divested by an order setting it aside, confers an immediate right of appeal to this Court. Having obtained an enrollment of their judgment by the expiration of 30 days following the order making the judgment final pursuant to Rule 605 a, the appellants acquired an immediate right of appeal to this Court.”

Maryland Rule 625 a provides, in part, that on a motion filed after the expiration of 30 days after the entry of a judgment, “the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.” As the Court of Appeals said in Ventresca, supra, at 403-04:

“As a result of a host of decisions too numerous to list completely here, it is now axiomatic that the power of the court to revise and control an enrolled judgment is no longer discretionary. * * *.
“From numerous decisions applying Rule 625 a, there have also emerged the requirements that, in addition to proving .‘fraud, mistake or irregularity,’ one seeking to set aside an enrolled judgment must also establish that he is acting in good faith, with ordinary diligence, and that'he has a meritorious defense.”

There was no assertion of irregularity. The lower court rejected the claim of fraud. This leaves mistake as the only ground to be considered. If a mistake was made in granting the judgment, whose mistake was it? The record discloses no mistake by the court in entering the summary judgment, but even if the court had erred, such error is not a mistake under Rule 625 a. In Rhodes Co. v. Blue Ridge Co., 218 Md. 329, 146 A. 2d 771 (1958), the Court of Appeals, in reversing an order striking out an enrolled summary judgment, said, at 331:

“There is.no doubt that after the judgment became enrolled thirty days after its entry, the court was without authority to set it aside unless the court, upon a proper motion, was satisfied that entry of the judgment had been procured by fraud or was entered by mistake or because of some irregularity, of which there was no proof in this instance. Even if we assume, without so holding, that the court was in error in deciding the motion for summary judgment in favor of Rhodes, such error would not constitute such a mistake as is contemplated by the rule.”

Just as it is the obligation of a party to present his facts to the court or jury at a trial, it is equally his obligation to place before the court in summary judgment proceedings, sufficient facts in the required evidentiary form, to raise a genuine dispute of a material fact, or to show that there is no such dispute. What all parties thus submit to the court becomes the body of evidence from which the court determines whether a trial is necessary.

We discussed the summary judgment procedure, under Maryland Rule 610, in Vanhook v. Merchants Mut. Ins. Co., 22 Md. App. 22, 321 A. 2d 540 (1974). We commented, at 25:

“It has been said repeatedly that the procedure is not a substitute for a trial, but a means by which the court may determine, summarily, whether a trial is necessary.”

We said that there are two questions before the court on motion for summary judgment:

“(a) was there a genuine dispute as to any material fact, and
(b) if not, were the undisputed facts such as to entitle any party to judgment.” At 25.

In Vanhook, supra, we pointed out further, at 26:

“Each opposing party is given ample opportunity to place before the court facts which, on the one hand, show that he is entitled as a matter of law to the ruling he seeks, or, on the other hand, show that a fact, material to the opponent’s position, is disputed.”

We listed some of the ways to place facts before the court as by affidavit, deposition, answers' to interrogatories, admission of facts, and stipulation or concession, as well as by pleadings, insofar as the pleadings frame the issues, or result in admissions.

If Smith had been able to show that any material fact relied upon by Markowsky was in dispute, he failed to avail himself of that opportunity. He limited himself to the sufficiency of Markowsky’s facts to support the motion for summary judgment. We read the ruling appealed from as suggesting that the mistake was made by Smith, in failing to bring to the court’s attention, an issue of material fact in dispute. We now consider whether that failure was a mistake as contemplated by Rule 625.

Judge Smith, writing for the Court of Appeals in Hughes v. Beltway Homes, Inc., 276 Md. 382, 347 A. 2d 837 (1975), said, at 386-87:

“We do not appear to have defined the term ‘mistake’ as used in Rule 625, although in some cases we seem to have equated that term with ‘irregularity.’ We have said that the term ‘mistake’ as used in this rule is not applicable to an enrolled decree in a mechanics’ lien foreclosure case making reference to the wrong lot, Brunecz v. DiLeo, 263 Md. 481, 483, 283 A. 2d 606 (1971); to the mistaken belief of out-of-state counsel that the Maryland procedure relative to attachment was similar to that in his state, which belief brought about a judgment by default, Penn Central Co. v. Buffalo Spring, 260 Md. 576, 581, 273 A. 2d 97 (1971); to the negligence or mistake of the agents and counsel of a complaining party, Wooddy v. Wooddy, 256 Md. 440, 453, 261 A. 2d 486 (1970); to failure to attach a ledger card to an affidavit with a motion for summary judgment or the failure of counsel to file an appropriate pleading prior to the expiration of the time specified by rule, Household Fin. Corp. v. Taylor, 254 Md. 349, 356, 254 A. 2d 687 (1969); to a finding that a judgment by default was based upon vouchers, some of which were in the name of the defendant, some in the name of a corporation, and some in the name of another person, Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475, 478-79, 240 A. 2d 239 (1968); to a mistaken determination that summary judgment should be entered against a defendant, Rhodes Co. v. Blue Ridge Co., 218 Md. 329, 331, 146 A. 2d 771 (1958); or to a failure by parties defendant to inform their attorneys of the defenses that they had, Thomas v. Hopkins, 209 Md. 321, 326-27, 121 A. 2d 192 (1956). The type of situation in which mistake might be applicable is demonstrated by Miles v. Hamilton, 269 Md. 708, 309 A. 2d 631 (1973), (no valid service of process) and Ashe v. Spears, 263 Md. 622, 284 A. 2d 207 (1971), cert. denied, 406 U. S. 958 (1972), (a contention of no valid service of process). It is further demonstrated by two cases arising before adoption of Rule 625, Harvey v. Slacum, 181 Md. 206, 210-11, 29 A. 2d 276 (1942), (default judgment entered where there had been no valid service of process), and May v. Wolvington, 69 Md. 117, 14 A. 706 (1888), (judgment by default entered for lack of a plea when appropriate pleading had in fact been filed).”

See also Tasea Investment Corp. v. Dale, 222 Md. 474, 160 A. 2d 920 (1960), and Pumphrey v. Grapes, 215 Md. 573, 138 A. 2d 916 (1958).

If the appellee or his counsel made a mistake, which we do not suggest, it was not such a mistake as to entitle him to relief under Rule 625. Moreover, while there is nothing to indicate a lack of good faith in appellee’s conduct of the case, we see no merit to his position on the facts, and no showing that he acted with ordinary diligence.

We hold that the lower court erred in striking the enrolled judgment. The order appealed from will be reversed and the stricken judgment will be reinstated.

Order striking judgment reversed.

Judgment in favor of appellant reinstated.

Appellee to pay costs.

      . Possibly because of an erroneous police report, later clarified, Smith’s declaration transposed the roles of the two vehicles.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    MICHAEL G. CAPPY v. HUGH F. WILDE, SR. ET AL.
    [No. 637,
    September Term, 1976.]

      Decided February 10, 1977.

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

      Stanley R. Jacobs for appellant.
    Submitted on brief by John B. Robins, Robins, Robins & Johnson, Raymond, C. Shockley and Williams, Hammond, Moore & Shockley for appellees.
   Liss, J.,

delivered the opinion of the Court.

This case arises out of a contract of sale executed on July 28, 1972, by the terms of which Michael G. Cappy, the purchaser and appellant herein agreed to buy and Hugh F. Wilde agreed to sell a number of lots located in Ocean City, Worcester County, Maryland. The contract was prepared by an employee of Robert S. Bounds, a duly licensed real estate broker who was acting on behalf of the seller. Wilde and Bounds are the appellees in the case.

The contract set the purchase price as $480,000.00 of which $20,000.00 was to be paid at the time of the signing of the agreement with the balance to be paid at settlement, which was to be held on or before October 1,1972.

The property purchase was described in the contract as follows:

“Witness that the said Seller does hereby bargain and sell unto the said Buyer, and the latter does hereby purchase from the former the following described property, situate and lying in Ocean City, Worcester County, 10th Election District, Maryland, consisting of 45,250 square feet located between 71st and 72nd Streets on the East Side of Ocean Highway as shown on the attached plat outlined in green and made up of seven and one-half building lots. Zoned R-S.”

Attached to the contract was a hand drawn sketch, also prepared by Bounds’ employee, giving the dimensions of the lots and the lot numbers of the property being sold. At the bottom of the hand drawn plat, the dimensions of the V/z lots to be purchased by appellant were indicated as 45,250 square feet. No survey of the property was made by either party prior to the execution of the contract, and it is admitted that the lot numbers designated on the sketch do not correspond to any recorded plat of the property. The sketch indicated that the seller was retaining ownership to additional vacant land located at the southwest corner of and contiguous to the land agreed to be sold by the contract to the appellant.

Appellant stated at the trial that sometime in August of 1972, he was notified by the broker that the seller could not convey 45,250 square feet as required by the contract and that Wilde proposed to deduct a six foot strip running along one of the boundary lines of the property purchased by him. Wilde, who was called as an adverse witness, denied intending to deduct any square footage but stated that a subsequent check by him disclosed that the 71/2 lots to be conveyed did not contain 45,250 square feet but instead were some 824 square feet short of that amount; he stated that this information was conveyed to Cappy sometime in August of 1972.

The transcript discloses that there were misunderstandings concerning the handling of the $20,000.00 deposit required to be made by the purchaser: Appellant stated that he gave the real estate broker a check representing the deposit with the understanding that it would not be deposited until he was notified by appellant that the funds to pay the check were available, but the broker deposited the check which was promptly returned by the bank as uncollectible; that on September 1, 1972, after having been notified of the problem concerning the square foot shortage, he furnished the broker with a cashier’s check for $20,000.00 to replace the deposit check that had been dishonored.

Appellant also testified that upon being notified of the square foot shortage in the land contracted for, he requested his architect to determine what the effect of the shortage would be on the 130 unit building he proposed to erect on the property; the architect’s report had not been received by September 1st, when the original deposit check was made good. In the latter part of September the architect reported that the deduction of the six foot strip along the boundary line of the property would result in “the loss of a whole row of parking, which is 20 spaces. Then you lose 20 units,” he said, “because motel units are directly related to the number of parking spaces you can provide.” Upon receipt of this information, the appellant decided he could not consummate the transaction.

No final settlement was ever scheduled and no tender of a deed was ever made by the seller. After October 1, 1972, appellant made demand for a refund of his deposit, and the demand was refused. Suit for a return of the deposit was then filed by the appellant against Wilde, the seller, and Bounds, the real estate broker. After removal from the Circuit Court for Worcester County, the case was tried non-jury in the Circuit Court for Wicomico County, and the appellant offered as evidence the facts which we have recited. At the conclusion of the appellant’s case, the trial court granted the defendants’ motion to dismiss and judgment was extended for the defendants with costs. It is from that judgment that this appeal was seasonably filed.

Appellant has stated the questions to be decided by this appeal in five different forms, but they amount to the same question: Did the trial court err when it granted the defendants’ motion to dismiss and thereby decided that the seller was entitled to retain the deposit of $20,000.00? We think the answer is yes; the trial court did err, and we shall reverse.

Dispositive of this controversy, we believe, is Smith v. Bounds Package Corp., 206 Md. 74, 110 A. 2d 71 (1955), in which the appellee contracted to buy from the appellant a farm for the purpose of clearing from it certain timber. Subsequent investigation revealed that the appellant did not own about half of the land which the appellee thought it was buying, and the portion not owned by the appellant contained more than half of the timber which the appellee thought it was buying. The trial court set aside the contract on the ground of mistake and ordered the appellant to refund monies received as part payment. In affirming the trial court, the Court of Appeals said at page 79 of its opinion;

“The case is one of a contract entered into through mutual mistake as to an unquestionably material fact. Cancellation is an appropriate remedy, where, as here, the parties can be restored to substantially their original positions. As was said in Gross v. Stone, 173 Md. 653, at 665, 197 A. 137, at 142: ‘ * * * while parol evidence is not admissible to alter or vary a written instrument expressing an agreement, it may be admitted to show that, because of a mutual mistake of the parties, their minds never met as to its subject-matter, and that consequently there never was an agreement. ’ Where that fact is clearly shown, it is generally but not uniformly held that the instrument may be cancelled.’
“Likewise, in Martz v. Jones, 189 Md. 416, at 423-424, 56 A. 2d 30, at 33, this Court, in an opinion by Judge Grason, said: ‘We think, in this case, both the appellants and appellees were mistaken as to the lot that was to be conveyed, and the appellants could not have enforced the contract against the appellees, nor the appellees against the appellants, because the contract was uncertain and indefinite. The deed sought to be reformed in this case can be annulled by either party. The decree of the Chancellor must be reversed, without prejudice to either party to institute proceedings for annulment.’ ”

St. Luke's House v. DiGiulian, 274 Md. 317, 336 A. 2d 781 (1974); 4500 Suitland Road Corp. v. Ciccarello, 269 Md. 444, 306 A. 2d 512 (1973); Pomeroy, Equity Jurisprudence, § 870 (5th ed., 1941); 13 Williston, Contracts, § 1544 (3rd ed., 1970); Restatement of Contracts, § 502 (1932).

The trial court at several points in its opinion indicated its belief that there had been a mistake in the calculation of the square footage of the land to be conveyed to the buyer. Brodsky v. Hull, 196 Md. 509, 77 A. 2d 156 (1950), is authority for the proposition that a statement of the quantity of land is a statement of fact, not of opinion; a purchaser is entitled to assume that the seller knows the acreage of the land which he is selling. The trial court suggested that the appellant might have been entitled to demand the return of his deposit when he was first notified of the discrepancy; the court, however, attached great significance to the fact that the appellant made good the original deposit check after the shortage in the square footage had been called to his attention.

Appellees suggest that the appellant’s conduct amounted to an acquiescence regarding the reduction of the property to be conveyed to him. As authority for such a theory they cite Hagan v. Dundore, 187 Md. 430, 50 A. 2d 570 (1946); and Faller v. Faller, 247 Md. 631, 233 A. 2d 807 (1967). Our careful consideration of these cases convinces us that they are factually inapposite to the facts in this case. Appellees urge that when appellant discovered that he was not going to get all he thought he was entitled to, he should have promptly notified the seller that he was rescinding the contract and would not make the deposit. We do not agree that the appellant acted in bad faith. The uncontradicted evidence was that immediately upon notification of the reduced footage, the appellant requested his architect to advise him of what effect the shortage would have on his plans for the site. He made the deposit good in order to maintain the contract until the effect of the shortage could be determined. When he was advised in the latter part of September of the substantial effect on his ability to develop the tract as desired, he immediately notified the seller of his demand for a return of the deposit. We point out that it was the seller who — albeit innocently — misrepresented the square footage of the tract of land.

There is more than a suggestion in the testimony that the seller had adjoining land from which he could have conveyed the square footage called for in the contract. He apparently elected not to do so because of the effect such a transfer would have on the land at the southwest corner of the tract which he retained for his own building purposes. To permit the seller, whose unilateral misrepresentation was the cause of the difficulty, to retain the deposit under the circumstances would, we believe, amount to an unjust enrichment.

The trial court granted the defendant’s motion for a directed verdict at the close of the appellant’s case. What evidence, if any, the appellees were prepared to offer had they been required to proceed with the case we are, of .course, unable to determine. Under the circumstances, we have no alternative other than to remand the case for a new trial.

Judgments reversed.

Case remanded for new trial.

Costs to be paid by appellees.


author: Thompson, J.,

text:
    JEANNE K. TAYLOR LINDNER v. DUDLEY D. TAYLOR
    [No. 653,
    September Term, 1976.]

      Decided February 10, 1977.

    The cause was argued before Gilbert, C. J., and Thompson and Melvin, JJ.

      James B. Dudley, with whom was Timothy E. Welsh on the brief, for appellant.

      Ronald A. Willoner, with whom were DePaul, Willoner & Kenkel, P.A. on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The issue presented in this appeal is whether or not the modification, by agreement, of a prior decree for support of a child, after July 1, 1973, the effective date of Chapter 651 of the Laws of Maryland 1973, terminates the support when the child reaches the age of 18. We hold the modification pursuant to the agreement in this case did not terminate the support at age 18 but the support must continue until the child reaches age 21.

The facts were summarized by the trial judge as follows:

“All right, gentlemen, it would appear to us that on the third of September, 1964, Jeanne Taylor and Dudley Taylor, who were then married, entered into a separation agreement which provided, among other things, that the husband would pay to the wife as and for support and maintenance of the minor children until their majority, unless they are sooner married, deceased or self-supporting, the sum of $200.00 a month for the support of Pamela J. Taylor and the sum of $200.00 per month for Jeffrey A. Taylor.
“Thereafter, a divorce was instituted, resulting in a decree of divorce a vinculo matrimonii, dated November 7, 1967, which this member of the Court signed. We provided in that decree for the divorce and that the defendant, Dudley D. Taylor, pay unto the plaintiff, Jeanne K. Taylor, as and for support and maintenance of the minor children of the parties the sum of $400.00 per month, to be paid each and every month, and it is further ordered that the agreement entered into between the parties on the 3rd day of September, 1964, a copy of which was marked as Plaintiffs Exhibit No. 1 and received into evidence in this proceeding, be approved and made a part of this decree, and the parties are directed to be bound thereby.
“As time went on, Mrs. Taylor married, or re-married, and is now Mrs. Lindner.
“The husband apparently got in arrears on the support payments. A rule to show cause to hold him in contempt was issued and this came on for hearing on May 2nd, 1973, before Judge Parker. At that time, Judge Parker concluded that Mr. Taylor was in contempt of Court and sentenced to the County Jail for a period of six months. He suspended that sentence upon the condition that he purge himself in the amount of $2,119.00, one-half of which is to be paid today and the remaining half at the rate of $100.00 per month, commencing June 1, 1973. Total arrearage assessed $1600, plus tuition and attorney’s fees for a total of $2,119.00. This being an equity proceeding that did not become effective until a written order was issued thereon.
“Apparently there was some negotiations between the parties at this stage of the proceedings. We really haven’t received any evidence on that. But, in any event, on the 8th of August, 1973, a written order of Court was signed by Judge Parker providing for the amount arreared, the tuition, and the jail sentence. And then it further provided ‘that the decree dated the 7th day of November, 1967, be and the same is hereby modified as follows:
‘1. The defendant shall pay unto the plaintiff as support for the minor child, Jeffrey, the sum of $250.00 per month, accounting from August 1, 1973, until he obtains’ — it says ‘obtains’,' I presume it meant ‘attains’ — ‘his majority.’
“There was a petition for increase in support payments filed in the pleadings previously and that was dismissed by paragraph 4 of this last mentioned decree.
“Now, this decree was signed by Jeanne K. Taylor Lindner; her attorney, Mr. Timothy Welsh; Mr. Dudley D. Taylor, defendant; and Mr. Sherman West, attorney for the defendant.
“We find from the evidence on stipulation here that on May 25th, 1974, Jeffrey became 18 years old. There, at that time, under the law he reached his majority, as a result of the laws of 1973, Chapter 651.. . .
“This decree was signed by Mrs. Lindner and Mr. Taylor. It didn’t say just approved as to form. It was signed, which we would have to interpret and consider as a written manifestation of an agreement modifying the earlier agreement back in 1967. And we would have to apply the law as it existed on August 8th, 1973, as to what the age of majority was. And the age of majority on July 1, 1973, and, of course, on the 8th of August, at the time of this decree, was 18. Whether that be good or bad, it is what was done by the legislature.
“And, accordingly, we feel obliged, regardless of what the circumstances might be now with this young man or what the arrearage, that the law on August 8th was 18. We feel that that is in accord with the two cases that have previously been decided and which were cited here today.
“And it would be useless to go and hear other testimony, because on the question of law itself we feel that we can resolve it.”

We think the trial judge was in error under O’Connor O’Connor, 22 Md. App. 519, 323 A. 2d 632 (1974), which w based on Monticello v. Monticello, 271 Md. 168, 315 A. 2d 5 (1974). In the former case we said:

“That the order, effective May 18, 1978, increasing the support payments for the minor children was not filed until December 13; 1973, and thus after the effective date of the Act, does not, in our opinion, alter this conclusion for it is the date of the original decree, not the date of the modifying decree, which controls.” Id. at 522. (Emphasis added).

See siso Monticello v. Monticello, supra, at 175-176:

“It is true, as the chancellor noted below, that a decree for child support may be varied or modified by the court in the exercise of its sound discretion at any time because of a change in circumstances, Wooddy v. Wooddy, 258 Md. 224, 228, 265 A. 2d 467, 470 (1970); Seltzer v. Seltzer, 251 Md. 44, 45, 246 A. 2d 264, 265 (1968), whether or not there has been an agreement between the parties, Price v. Price, 232 Md. 379, 383, 194 A. 2d 99, 101 (1963). See Code (1957, 1973 Repl. Vol, 1973 Cum. Supp.) Art. 16, § 25 (divorce a mensa et thoro); § 28 (power to modify support agreement); § 66(a) (equity has original jurisdiction in cases relating to child support). The exercise of this jurisdiction is ordinarily limited, however, to revisions of agreements or decrees which are made in the best interests of the children because of a change in circumstances, see, e.g., Rothschild v. Strauss, 257 Md. 396, 263 A. 2d 511 (1970), and in the usual case, is confined to a change in the amount, rather than the duration, of the support.”

The appellee argues that the language of the modification agreement shows a clear intention to modify the duration as well as the amount of support. The exact language is repeated:

“. . . the parties hereto, through respective counsel, having agreed and stipulated to the modification of the Decree of this Court dated November 7, 1967 and the Agreement incorporated there.. ..”
“ORDERED, that the Decree dated the 7th day of November, 1967, be, and the same is hereby modified as follows:
1. The defendant shall pay unto the plaintiff as support for the minor child, Jeffrey, the sum of $250.00 per month, accounting from August 1, 1973, until he obtains [sic] his majority.
2. The defendant shall pay the outstanding funeral expenses pertaining to the deceased daughter, Pamela.
3. Each party shall pay their respective counsel fees and court costs herein.
4. The plaintiffs Petition for increase in payments be and the same is hereby dismissed.”

We repeat what the Court of Appeals said in Monticello v. Monticello, supra, at 176: “The exercise of this jurisdiction is ordinarily limited, however, to revisions of agreements or decrees which are made in the best interest of the children because of a change in circumstances, see, e.g., Rothschild v. Strauss, 257 Md. 396, 263 A. 2d 511 (1970), and in the usual case, is confined to a change in the amount, rather than the duration, of the support.”

We are unable to see the intent to reduce the duration of the support in the use of the bare phrase “until he obtains majority” where the child is deprived of all support for a three-year period in return for an increase in support of only $50 per month for a few months, i.e., from $200 to $250. We can attribute no such intent to the parties and even less to the judge who signed the modifying decree while charged with the legal responsibility of ruling in the best interests of the child. We think the use of the language “obtains (sic) his majority” in this instance means his majority under the prior decree which assured support until the child reached age 21.

Order of July 1, 1976 dismissing contempt petition reversed.

Case remanded for further proceedings in accordance with this opinion.

Appellee to pay the costs.


text:
    IN RE APPEAL NO. 646, September Term, 1976 from the Circuit Court for Prince George’s County, sitting as a Juvenile Court
    [No. 646,
    September Term, 1976.]

      Decided February 14, 1977.

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

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

      Arrie W. Davis, Assistant Attorney General, with whom we. „ Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and James S. Nickelspom, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal from the action of the trial court waiving jurisdiction over the appellant from the Juvenile Court of Prince George’s County to the Circuit Court of that county.

At the hearing the State requested a waiver of jurisdiction over three separate alleged acts of delinquency — a robbery and two armed robberies. No witnesses were called at the hearing; in lieu of the testimony, counsel for the State and the accused presented oral argument.

The purpose of a juvenile waiver hearing is to determine whether or not the juvenile is a fit subject for juvenile rehabilitative measures. Matter of Flowers, 13 Md. App. 414, 283 A. 2d 430 (1971); Kemplen v. Maryland, 428 F. 2d 169 (4th Cir. 1970).

Waiver may be granted only where a preponderance of the legally sufficient evidence shows that such a determination is proper in light of the factors enumerated in the Annotated Code of Maryland (1974, 1976 Cum. Supp.l, Courts and Judicial Proceedings, § 3-817 (d)(l)-(5): age of the child; mental and physical condition of the child; child’s amenability to treatment in any institution, facility or program available to delinquents; nature of the offense and the child's alleged participation in it; and the public safety. Matter of Trader, 20 Md. App. 1, 315 A. 2d 528 (1974); Matter of Waters, 13 Md. App. 95, 281 A. 2d 560 (1971).

All the factors need not be resolved against the juvenile in order to justify waiver, but the court must consider each factor weighing them in relation to one another in determining whether the child is an unfit subject for juvenile rehabilitative measures. Matter of Johnson, 17 Md. App. 705, 304 A. 2d 859 (1972).

We said in In Re Arnold, 12 Md. App. 384, 396-397, 278 A. 2d 658, 664 (1971), that “disposition in a juvenile case is committed to the sound discretion of the juvenile judge, to be disturbed on appeal only upon a finding that such discretion has been abused.” In Re Hamill, 10 Md. App. 586, 271 A. 2d 762 (1970).

In Matter of Johnson, supra, at page 713 we stated, “What we said in Arnold concerning discretion in juvenile dispositions is equally applicable to waiver hearings.”

The juvenile court judge had before him a waiver investigation report and recommendation prepared by the Division of Juvenile Services. The court obviously considered the report in reaching its conclusion as to waiver.

Maryland Rule 913 e. provides in part:

“e. Order.
1. If the Court concludes that its jurisdiction should be waived, it shall: (a) state the grounds for its decision on the record or in a written memorandum filed with the clerk . . . .”

The purpose of the statement, obviously, is to provide the parties and the reviewing court with the benefit of the trial court’s reasons for its determination that the juvenile is an unfit subject for juvenile rehabilitative measures. It is not necessary that the statement contain a point by point • exposition of the trial court’s consideration of each of the five enumerated criteria. At a minimum, however, the statement should contain such factual findings as would permit the conclusion that the trial court has considered the criteria individually and in relation to each other and the basis on which it has reached its conclusion. .

In this case the trial court in explaining its decision said:

“Well, from the standpoint of this member of the Court, the patronizing attitude of the mother and others in society is one reason this type of thing goes on. He is a child for part of the day, and the rest of the day he is capable of committing adult crimes.
The legislature has set the cut-off date at 15 years, and consequently I think there are cases where that is too old.
The Court is going to grant the waiver and let him be treated as an adult. We will see if that has some effect on his future behavior.”

Appellant urges that this language is not sufficient to comply with the requirements of Maryland Rule 913 e. We agree. We are unable to determine from the statement made by the trial court what consideration, if any, was given to the required criteria for waiver.

We note that the waiver report of the Department of Juvenile Services recommended that the waiver be denied. The trial court is not required to follow that recommendation and may act in its own sound discretion. See Matter of Murphy, 15 Md. App. 434, 291 A. 2d 867 (1972). We believe, however, that where such a recommendation is made that the statement of the trial court under Maryland Rule 913 e. should reflect that the trial court has considered the recommendation and the court’s reasons for rejecting the recommendation.

We shall remand this case to the Circuit Court for Prince George’s County, sitting as a Juvenile Court, without reversal or affirmance.

Case remanded without affirmance or reversal for further proceedings in conformity with this opinion.

Costs to abide results.

      . The same criteria are enumerated in Rule 913, section d. of the Maryland Rules of Procedure as “considerations in determining waiver.”


author: Menchine, J.,

text:
    CHARLES J. HILL v. STATE OF MARYLAND
    [No. 602,
    September Term, 1976.]

      Decided February 18, 1977.

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

      Lee Gordon, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Smsher, State's Attorney for Baltimore City, and David Palmer, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Charles J. Hill (appellant) was convicted by a jury in the Criminal Court of Baltimore of assault with intent to rob. He was sentenced to imprisonment for a term of ten years.

The trial had been commenced on March 3,1976. The State rested its case after calling two witnesses. Trial counsel for the defendant moved for judgment of acquittal upon the ground that “the State has failed to make out a prima facie case requiring a defense in this case.” The motion was overruled. The court then recessed for further proceedings on the following day.

When the case was resumed on the morning of March 4, 1976, trial counsel for the accused addressed the court as follows:

“MR. SCHAPIRO: Good morning, Your Honor. Initially, I wish to reiterate on the record what I advised you in chambers yesterday. The Defendant indicated at the conclusion of proceedings yesterday that his correct name is not Charles J. Hill but Brown J. Hill and the Defendant indicated to me further for the first time yesterday evening that one time in 1975 he had been at Clifton T. Perkins for seven months for some type of evaluation. He indicated he wishes me to interpose a plea of not guilty by reason of insanity at the time, not guilty by reason of insanity at the time of the alleged commission of the offense and is not competent to stand trial at this time.” (Emphasis added.)

The trial judge responded as follows:

“THE COURT: This is the first time the attorney or the Court or the State’s Attorney has learned of the Defendant’s desire to file an insanity plea. The case is already in process and I don’t think the plea is filed timely, and I will therefore overrule the Defendant’s motion to be allowed to file an insanity plea at this juncture of the trial. We will proceed with the trial.”

The trial judge did not respond to counsel’s statement that “[My] client wishes me to interpose a plea [that he] is not competent to stand trial at this time.”

Appellant in this Court makes the following single contention:

“The trial judge committed reversible error by refusing to determine whether Appellant was legally competent to stand trial after Appellant, in open court, alleged he was incompetent.”

We agree.

Article 59, § 23 reads in pertinent part as follows:

“Whenever prior to or during the trial, any person charged with the commission of any crime shall appear to the court, or be alleged to be incompetent to stand trial, by the defendant himself, the court shall determine upon testimony and evidence preseyited oyi the record whether such person is unable to understand the nature or the object of the proceeding agaiyist him or to assist in his defeyise.” (Emphasis added.)

We have pointed out that there is a marked difference in the tests to be applied with respect to the issue of “responsibility for criminal conduct” and with respect to “competency to stand trial.” Strawderman v. State, 4 Md. App. 689, 244 A. 2d 888 (1967); Rozzell v. State, 5 Md. App. 167, 245 A. 2d 917 (1968); Colbert v. State, 18 Md. App. 632, 308 A. 2d 726 (1973).

In Strawderman, supra, we set forth the competency test and laid out the procedures to be followed when the latter issue was raised:

“COMPETENCY TO STAND TRIAL

The Test
Under new § 7 [ijow § 23] the test for competency of an accused to stand trial is ‘whether such person is unable to understand the nature or the object of the proceeding against him or to assist in his defense.’
The Procedure
By new § 7 [now § 23] the lower court shall determine whether the accused is competent to stand trial ‘upon testimony and evidence presented on the record,’ whenever prior to or during trial, the accused alleges he is so incompetent or it so appears to the court. The court for good cause shown and after affording the accused an opportunity to be heard on his own behalf or through counsel may pass an order requesting an examination of the accused’s competency to stand trial by the Department of Mental Hygiene and a full report of the findings shall be forwarded to the court, the State’s Attorney and to counsel for the defendant. ‘If the court after receiving testimony and evidence determines that the defendant is competent to stand trial within the meaning of this section (new § 7) [now § 23], the trial shall commence as soon as practicable or, if already commenced, shall continue. The court may in its discretion at any time during the trial and until the verdict is rendered, reconsider the question of competency of the defendant to stand trial as otherwise provided in this section.’ ” (Emphasis added.) 4 Md. App. at 692-93, 244 A. 2d at 890.

We added at 697 [892]:

“With regard to competency to stand trial under new § 7 [now § 23], we think that the court in whom the final determination of the matter rests, must determine beyond a reasonable doubt that the accused is able to understand the nature or object of the proceeding against him and to assist in his defense.” (Emphasis added.)

We reiterated that Art. 59, § 23, supra, mandates affirmative action by the trial court when the issue arises. See Rozzell v. State, supra, wherein we said at 173-74 [920]:

“COMPETENCY TO STAND TRIAL

In Strawderman v. State, 4 Md. App. 689, we discussed the provisions of Chapter 709. We stated that the test for competency of an accused to stand trial is ‘whether such person is unable to understand the nature and object of the proceedings against him or to assist in his defense’ and we found that the procedure was that the lower court, when the issue was before it, shall make such determination 'upon testimony and evidence presented on the record. ’ See Code, supra, Art. 59, § 7.” [] (Emphasis added.)

We added at 175 [921]:

“In Strawderman v. State, supra, we said, with regard to competency to stand trial, that the lower court, in whom the determination of the matter rests, must determine beyond a reasonable doubt that the accused is able to understand the nature or object of the proceedings against him and to assist in his defense.” (Emphasis added.)

Again, in Colbert v. State, supra, we made plain that § 23 mandated special procedural action and necessary substantive determination by the trial court when an accused is “alleged to be incompetent to stand trial.” We said at 640-41 [731]:

“In passing we notice that appellant adduced no proof in support of his plea of insanity. While the plea was not withdrawn, we think it was implicitly abandoned. In any event, in the absence of proof to support the plea, the State had no burden with respect to it, and there was no issue to be presented to the trier of facts. Strawderman, supra, at page 698.
“However, the clearly different test for competency to stand trial, and the clearly different procedure for determining the issue, Strawderman, supra, at page 695, requires the court to make a determination when incompetency is alleged. Code, Art. 59, § 23, provides, in part:
‘Whenever prior to or during the trial, any person charged with the commission of any crime shall appear to the court, or be alleged to be incompetent to stand trial, by the defendant himself, the court shall determine upon testimony and evidence presented on the record whether such person is unable to understand the nature of [or] the object of the proceeding against him or to assist in his defense.’
The statute requires that the determination be made ‘upon testimony and evidence presented on the record’, but it does not require that such testimony and evidence be presented in a separate hearing, as appellant contends. We said in Strawderman, at page 695, ‘Of course, in a jury trial, evidence with regard to it should be received out of the presence of the jury’, but we did not say, nor do we now say, that a judge with no jury present is required to use any magic words to designate as a separate hearing the presentation to him of testimony and evidence for his determination of the competency of the accused to stand trial. It is sufficient if the testimony and evidence are on the record.”

The State suggests that “the record fails to demonstrate a per se refusal by the trial judge to make [a competency] determination” and that “all parties were directed toward the single aspect of the insanity plea as opposed to the alleged incompetency.” From this premise the State argues that “if the appellant intended his motion as an allegation of incompetency, he had the commensurate responsibility of bringing to the attention of the trial judge that he sought a determination as to such issue . . . .”

The language used by trial counsel unequivocally directed the attention of the trial court to the dual issues (a) of insanity as a defense to the crimes charged and (b) of the competency of the accused to stand trial. The issues are statutorially distinct. Compare § 25 with § 23 of Article 59. We think that the peremptory requirement imposed upon the court by § 23 was activated by the clearly stated request of trial counsel. ■

We consider Alston v. State, 11 Md. App. 624, 276 A. 2d 225 (1971), and White v. State, 23 Md. App. 151, 326 A. 2d 219 (1974), relied upon by the State, to be distinguishable. In both Alston and White, trial counsel had proceeded to trial without directing the court’s attention to pending unresolved motions.

In the subject case, trial counsel specifically directed the trial court’s attention to an issue as to which its determination was mandated. He was required to do no more. See Saunders v. State, 8 Md. App. 143, 146, 258 A. 2d 776, 777-78 (1969).

In the subject case the trial judge failed to follow the course prescribed in Strawderman, Rozzell and Colbert, all supra. We now repeat, that whenever the issue of competency of an accused to stand trial is raised during the course of a jury trial, the trial judge must determine upon testimony and evidence presented on the record, out of the presence of the jury, whether the accused “is unable to understand the nature or the object of the proceedings against him or to assist in his defense.” The provision of Article 59, § 23 that the court must make determination “upon testimony and evidence presented on the record” is mandatory.

Unless and until the trial court makes a determination beyond a reasonable doubt upon testimony and evidence presented on the record that the accused is able to understand the nature or the object of the proceeding against him and to assist in his defense, the trial may not begin or if begun may not continue.

Because we are compelled to reverse and remand for a new trial at which proceedings to determine competency to stand trial may again become an issue, we feel obliged, for the guidance of trial judges in this or other cases, to retreat from certain dicta in Colbert v. State, supra. In Colbert, where we found that the trial court fully had complied with the mandate of Article 59, § 23, we stated in dicta at 641 [731-32]:

“The clear difference in procedure is this: although a defendant is presumed competent until the issue is raised, that presumption is overcome when it ‘shall appear to the court or be alleged’ that he is incompetent to stand trial. The allegation may be made by the defendant himself, or by his counsel. When the original presumption is thus overcome there remains no presumption one way or the other. The issue raised must be determined by the court, which must find beyond a reasonable doubt that the defendant is competent to stand trial.” (Emphasis added.)

The above quoted language used in Colbert, unnecessary to decision in that case, went too far. We agree that there is a presumption that one accused of criminal conduct is presumed to be competent to stand trial. That presumption, however, carries not less than co-equal force with an accused's presumed responsibility for criminal conduct in the face of a plea of insanity.

That is to say, the presumption of competency to stand trial does not disappear merely because the issue is raised by allegations of the accused or his counsel, any more than the presumption of sanity disappears upon entry of an insanity plea. Such an allegation mandates no more than that the court make “a determination upon testimony and evidence” upon the issue whether an accused is competent to stand trial. To hold otherwise would open the door to odious chicanery whereby an accused in a long jury trial, could subvert the trial without just cause.

The presumption of competency to stand trial continues until testimony and evidence presented on the record is of such character that the trial judge finds himself unable to determine beyond a reasonable doubt that the accused is able to understand the nature or the object of the proceeding against him or to assist in his defense.

When such testimony and evidence produces such effect upon the mind of the court, the trial must not be commenced, or if commenced must be suspended, or a mistrial declared as the ends of justice in a particular case may require.

The mandated hearing and determination must, of course, comport with requirements of due process under the Fourteenth. Amendment to the United States Constitution and Article 23 of the Maryland Declaration of Rights. Pate v. Robinson, 383 U. S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815 (1966); Drope v. Missouri, 420 U. S. 162, 95 S. Ct. 896, 43 L.Ed.2d 103 (1975).

In Drope v. Missouri, supra, it was said at 174-75 [905] [115]:

“In the present case there is no dispute as to the evidence possibly relevant to petitioner’s mental condition that was before the trial court prior to trial and thereafter. Rather, the dispute concerns the inferences that were to be drawn from the undisputed evidence and whether, in light of what was then known, the failure to make further inquiry into petitioner’s competence to stand trial, denied him a fair trial. In such circumstances we believe it is ‘incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured.’ Norris v. Alabama, 294 US 587, 590, 79 L Ed 1074, 55 S Ct 579 (1935). ‘When the corrective process is provided by the state but error, in relation to the federal question of constitutional violation, creeps into the record, we have the responsibility to review the state proceedings.’ Hawk v. Olson, supra, at 276, 90 L Ed 61.”

The continuing nature of the trial court’s duty to be alert to a competency issue that may be introduced during the course of trial also was the subject of discussion in Drope, supra, at 181-82 [908-09] [119]:

“Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial. Whatever the relationship between mental illness and incompetence to stand trial, in this case the bearing of the former on the latter was sufficiently likely that in light of the evidence of petitioner’s behavior including his suicide attempt, and there being no opportunity without his presence to evaluate that bearing in fact, the correct course was to suspend the trial until such an evaluation could be made. That this might have aborted the trial is a hard reality, but we cannot fail to note that such a result might have been avoided by prompt psychiatric examination before trial, when it was sought by petitioner.”

We also sound a cautionary note as to the following language used in Colbert, supra:

“As in the case of insanity affecting criminal responsibility, the question of competence to stand trial is first and foremost a medical problem. An opinion as to the medical fact of competence to stand trial should be reached by a medical diagnosis. Thus the opinion must be that of a medically trained psychiatrist in order to be admissible in evidence. Saul v. State, supra." [] 18 Md. App. at 642, 308 A. 2d at 732.

There is no doubt that the issue of competency to stand trial in many cases may involve a necessity for the trial judge to have or indeed, perhaps to seek, the testimony of medically trained psychiatrists before making a determination of competency. It is for this reason that Article 59, § 23 contains a provision that, “The court for good cause and after affording the defendant an opportunity to be heard on his own behalf or through counsel may pass an order requesting an examination of the defendant by the Department of Mental Hygiene.” (Emphasis added.)

We read the quoted portion of § 23 as manifesting a legislative intent to require such examination only when the testimony and evidence presented on the record raises a bona fide issue by demonstrating reasonable cause to believe that the accused may be incompetent to stand trial.

This rule fixes a “threshold” to be crossed in a separate hearing (in jury trials) akin to that required of the accused after a plea of insanity. There is, of course, a difference between the two rules, both in the requisites for crossing the threshold and with respect to the effect of a successful crossing. In competency, as distinguished from insanity hearings, the determination is exclusively a matter for determination by the trial court beyond a reasonable doubt. It is never a matter for the consideration of a jury. Strawderman, supra, at 695 and 697 [891 and 892]; Rozzell, supra, 175 [921]; Colbert, supra, 639 [730-31].

We find nothing in the statute to indicate that testimony by a medically trained psychiatrist that the accused is competent to stand trial is necessarily required before the court may make a determination of competency beyond a reasonable doubt. We did not intend the decision in Colbert to indicate otherwise. See United States v. David, 511 F. 2d 355 (DC Cir. 1975), wherein the Court said at 360:

“This court recognizes that in making a competency determination it may be very useful for the trial judge to question both the defendant and his counsel; the applicable criteria measure one’s ability to consult with his lawyer and to understand the course of legal proceedings. Thus counsel’s first-hand evaluation of a defendant’s ability to consult on his case and to understand the charges and proceedings against him may be as valuable as an expert psychiatric opinion on his competency.”

See also Wolcott v. United States, 407 F. 2d 1149 (10th Cir. 1969), wherein the scope of the trial court’s duty was discussed at 1151:

“The latest word on the scope of the court’s duty to hear and decide mental competency to waive and plead or stand trial is Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966). That case reaffirmed the test of competency as reiterated in Dusky, supra, and further articulated the standards by which a sentencing judge shall be guided in the discharge of his highly sensitive presentence responsibilities. It is there said that if any information coming to the attention of the court raises a ‘bona fide doubt’ of the defendant’s competency to waive his constitutional rights and plead or to stand trial, it then becomes the inescapable duty of the court to conduct a due process hearing to determine mental competency and to make appropriate findings thereon. The decision is for the court and both expert and lay testimony may be competent.”

Judgment reversed.

Case remanded for a new trial.

Costs to be paid by Mayor and City Council of Baltimore.

      . Now codified as Article 59, § 23.

      . The Supreme Court of the United States in Drope v. Missouri, 420 U. S. 162, 95 S. Ct. 896, 43 L.Ed.2d 103 (1975), said at 172-73 [904] [113-14]:
      “In Pate v Robinson, 383 US 375, 15 L Ed 2d 815, 86 S Ct 836 (1966), we held that the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Although in Robinson we noted that Illinois ‘jealously guard[ed] this right,’ id., at 385, 15 L Ed 2d 815, we held that the failure of the state courts to invoke the statutory procedures deprived Robinson of the inquiry into the issue of his competence to stand trial to which, on the facts of the case, we concluded he was constitutionally entitled. The Court did not hold that the procedure prescribed by 111 Rev Stat, c 38, § 104-2 (1963), was constitutionally mandated, although central to its discussion was the conclusion that the statutory procedure, if followed, was constitutionally adequate. See, e.g., United States v Knohl, 379 F2d 427, 434-435 (CA2), cert denied, 389 US 973, 19 L Ed 2d 465, 88 S Ct 472 (1967); United States ex rel. Evans v. LaVallee, 446 F2d 782, 785-786 (CA2 1971), cert denied, 404 US 1020, 30 L Ed 2d 668, 92 S Ct 691 (1972). Nor did the Court prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Rather, it noted under the Illinois statute a hearing was required where the evidence raised a ‘ “bona fide doubt” ’ as to a defendant’s competence, and the Court concluded ‘that the evidence introduced on Robinson’s behalf entitled him to a hearing on this issue.’ 383 US, at 385, 15 L Ed 2d 815. See United States v. Marshall, 458 F2d 446, 450 (CA2 1972).

      . In discussing the evidence adduced at Robinson’s trial, the Court did, however, indicate that a history of irrational behavior is a relevant factor which, on the record before it, was sufficient to require further inquiry notwithstanding Robinson’s demeanor at trial and the stipulated opinion of a psychiatrist that Robinson knew the nature of the charges against him and could cooperate with counsel when the psychiatrist examined him two or three months before. See infra, at 180-181, 43 L Ed 2d, at 118.”

      . 6 Md. App. 540, 252 A. 2d 282 (1969).

      . Federal cases dealing with 18 U.S.C. § 4244, akin to Article 59, § 23 have so interpreted the Federal statute. See United States v. Vowteras, 500 F. 2d 1210 (2d Cir. 1974), cert. den. 419 U. S. 1069; United States v. Fountain, 449 F. 2d 629 (8th Cir. 1971), cert. den. 405 U. S. 929; United States ex rel. Roth v. Zelker, 455 F. 2d 1105 (2d Cir. 1972), cert. den. 408 U. S. 927.

      . A separate hearing is not a requisite in a non-jury trial. It is sufficient if the testimony and evidence are on the record. Colbert v State, supra, at 641 [731-32],

      . The requisites for and the effect of “crossing the threshold” after a plea of insanity were set forth in Strawderman, supra, at 698 [893]:
      “So when a plea has been filed in writing alleging that the accused was insane at the time of the commission of the alleged crime, the court should determine preliminarily whether the proof adduced in support thereof is sufficient to raise a doubt as to the sanity of the accused, as defined, in the minds of reasonable men. If it finds that it is not, the State has no further burden with respect thereto and, in a jury trial, the question is not submitted to the jury. If the court finds that the proof adduced was sufficient to surmount the threshold question of doubt as to the accused’s responsibility, the State has the burden of convincing the trier of facts that the accused was sane, and, in a jury trial, evidence on the issue should then be introduced before the jury with proper instructions.”