author: Gilbert, C. J.,

text:
    CLARENCE MICHAEL SHINGLETON, DEBRA ANN MARTIN and CHARLES EDWARD BECHTEL v. STATE OF MARYLAND
    [No. 1132,
    September Term, 1977.]

      Decided June 9, 1978.

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

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants Shingleton and Martin. Thomas L. Hennessey for appellant Bechtel.

      Michael A. Anselmi, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Naji P. Maloof State’s Attorney for Calvert County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Cole Porter, in his well-known song, “I Get a Kick Out of You,” proclaimed that “[s]ome get a kick from cocaine.” This appeal arises from the arrest and conviction of some suppliers of that “kick.”

Historically, this case began with an application for a “wiretap” order in Baltimore County. Judge Marvin Land issued the order pursuant to 18 U.S.C. §§ 2510-2520 (1970). After installation of the “tap,” the police learned of a ring of people dealing in controlled dangerous substances spread from Woodlawn to Essex in Baltimore County to Lusby in Calvert County and beyond. The ring did, in fact, have Florida, Arizona, and Mexican connections.

Additional wiretap applications, founded upon the information obtained from the Baltimore County intercept order, led directly to the issuance of other electronic interception orders in Calvert County. The issuing judge authorized taps on a telephone listed to Appellant Clarence Michael Shingleton, a public “telephone booth located at... [the entrance to the] Chesapeake Ranch Club,” and a telephone leased to Appellant Debra Ann Martin, all of Calvert County. From the record we infer that the appellants, Shingleton and Martin, resided in the same building.

The result of the electronic surveillance of the three (3) telephones led to the conclusion on the part of the Maryland State Police that Martin, Shingleton, and Appellant Charles Edward Bechtel were engaged in the nefarious business of bringing cocaine into Maryland and distributing it, contrary to the provisions of Md. Ann. Code art. 27, §§ 276-302.

The State Police learned that on October 15, 1976, Martin was to drive her van-type motor vehicle to Dulles Airport in Virginia for the purpose of meeting Shingleton, who was transporting cocaine and marijuana into Maryland. After the van, with Martin and Shingleton aboard, left Dulles and traveled into Maryland, it was halted by the State Police at the Capitol Center, Prince George’s County. The occupants were arrested. The vehicle and its contents were seized and searched, and it was ascertained that Shingleton was indeed carrying cocaine and marijuana into this State in a briefcase which was opened by one of the troopers. The vehicle was transported to a garage where it was thoroughly searched.

It is enough to know, without endeavoring to recount all the evidence produced on behalf of the State against Bechtel, that the taped conversations, if admissible into evidence, were more than enough to demonstrate that Bechtel was an integral part of a conspiracy to violate this State’s narcotics and dangerous substances laws.

A jury, in the Circuit Court for Calvert County, convicted Shingleton and Bechtel of conspiracy both to possess cocaine and to possess it with intent to distribute it. All three (3) appellants were found not guilty of the count charging conspiracy to distribute. The jury was unable to agree as to Martin’s involvement in the conspiracy case. Shingleton and Martin were convicted of the possession of other proscribed controlled dangerous substances. All three (3) appellants have carried their grievance to this Court. Once here, the appellants parted company in their method of attack upon the judgments of the circuit court. Shingleton and Martin have elected to pursue a four-fold attack upon the judgments of the circuit court, while Bechtel mounts a fullscaled eleven-pronged salvo against it.

We shall deal first with the issues posed in the Martin-Shingleton appeal.

I.

“The trial judge erred in admitting evidence derived from unlawful wiretaps.”

The appellants correctly assert that the electronic interception in this case was controlled by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. (18 U.S.C. §§ 2510-2520 (1970)).

Section 2518(l)(c) provides that each application for an electronic surveillance warrant shall contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. . ..” We, in Calhoun v. State, 34 Md. App. 365, 374, 367 A. 2d 40, 44-45 (1977), referred to the legislative history of the Act, which discloses:

“ ‘Subparagraph (c) requires a full and complete statement as to whether or not normal investigative procedures have been tried and failed or why these are unlikely to succeed if tried, or to be too dangerous. ... The judgment would involve a consideration of all the facts and circumstances. Normal investigative procedure would include, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspirational groups by undercover agents or informants. Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. What the provision envisions is that the showing be tested in a practical and common sense fashion. ’ [1968] U.S. Code Cong. & Admin. News at 2190 (emphasis added) (citations omitted).”

We said in Calhoun that:

“Courts are not free to infer from the mere presentation of an application or petition, supported by an affidavit, that normal investigative procedure will not work. There must be specific compliance with 18 U.S.C. § 2518. The affidavit must demonstrate to the issuing judge that normal investigative measures have been tried and failed, or they are unlikely to be successful under the circumstances, or that their use is too perilous to the investigators. That a prior affidavit for another time and place so demonstrates, even when incorporated by reference, is not compliance with the strict requirements of the Act.” 34 Md. App. at 376-77, 367 A. 2d at 46. (Original emphasis.)

The record reflects that the issuing judge determined that normal investigative methods would not work, and for that reason he issued the orders as to the Martin and Shingleton telephones. The judge based his finding upon the affidavit in support of the State’s Attorney’s application for the order. Thus, it is to the affidavit that we must look to determine whether it complied with section 2518(l)(c). Trooper First Class, Iran M. Perkins, Intelligence Division, Narcotic Section, Maryland State Police, supplied a forty-one (41) page affidavit in which he recounted the history of the investigation into this particular narcotics ring. He related that as a result of an order issued by Judge Land in the Circuit Court for Baltimore County, a pen register was placed on the telephone line of one Edgar Allen Crouch of Woodlawn. The register showed thirty (30) calls in three (3) months to the telephone listed to Martin. Shingleton was disclosed by informants to be Crouch’s supplier. Crouch was observed by an informant “obtaining drugs from Shingleton,” and Shingleton told the informant that Shingleton, in turn, received the drugs from Appellant Charles Edward Bechtel. Crouch, Shingleton, and Bechtel all had records of narcotics violations. The house in which Martin and Shingleton lived was “approximately 500 feet off of the road down a long dirt driveway. ... The house is not visible from the road.”

The pen register led to a tap on Crouch’s telephone. From that tap it was learned that Shingleton would meet Crouch in Crofton, Maryland, and furnish Crouch with narcotics. The actual transfer was witnessed by three (3) police officers. Perkins, in his affidavit, said that he and other police personnel had “conducted surveillances of... Shingleton,... Martin and ... [their] residence.” Because of the location of the residence, “the occupants of the surrounding area, as well as Shingleton and Martin, become extremely suspicious of any and all strange persons or vehicles that are continually in the area.” A fixed surveillance was virtually impossible. Establishing a conspiracy among the appellants was not possible without the use of the tap because Bechtel was a fugitive from Maryland and did not enter the State. While ample evidence had already been obtained to prosecute successfully Shingleton, absent the electronic interception, the police would be without a method of gathering evidence to establish the conspiracy involving Bechtel. The affidavit specifically recited that it was Perkins’ opinion that other investigative methods would not work. The issuing judge agreed and so do we.

We think the affidavit clearly established the reasons why it was necessary to use the wiretap. The physical location of the property in which appellants Shingleton and Martin resided and Bechtel’s being in another State made it manifest that the only method that could be successfully used in bringing about the apprehension of all three (3) on the conspiracy charges was electronic surveillance.

In our view, the affidavit passes muster under United States v. Giordano, 416 U. S. 505, 94 S. Ct. 1820, 40 L.Ed.2d 341 (1974) and Calhoun v. State, supra. We perceive no error.

Our task, however, does not stop here because appellants advance a second reason why the wiretap evidence should not have been received. At 3:35 p.m., on Friday, September 10, 1976, one of the State Troopers assigned to the electronic surveillance of the Martin-Shingleton telephone, called the judge on the telephone and informed him, according to the judge’s memorandum, that the trooper “had learned from the conversations previously intercepted” that at “5:00 PM today (1700 hrs)” a telephone call would be received by Shingleton “at a pay phone in the Ranch Club area.” The subject of the call was reportedly “prices and times of delivery of CDS material and that there was not sufficent'. [s/e] time to prepare and submit a request to tap this phone to intercept this call in the usual way. Because of the time required to set up the aparatus [sic\, the distance from where he was to where I was and the fact that because of a prior committment [s/c] I would not be available more than another half hour / verbally authorized him to intercept this call upon condition that all of this would be reduced to writing in due course. ” (Emphasis supplied.)

The State seeks to justify the verbal request for and the oral granting of the tap on the basis of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified as 18 U.S.C. § 2518(7). That section provides:

“Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that —
‘(a) an emergency situation exists with respect to conspiratorial activities threatening the national security interest or to conspiratorial activities characteristic of organized crime that requires a wire or oral communication to be intercepted before an order authorizing such interception can with due diligence be obtained, and
‘(b) there are grounds upon which an order could be entered under this chapter to authorize such interception,
may intercept such wire or oral communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire or oral communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application.” (Emphasis supplied.)

The State’s argument will not withstand scrutiny. There is absolutely nothing in the record to show that the trooper who sought the “emergency” intercept order was “specially designated ... by the principal prosecuting attorney of” Calvert County. Moreover, the alleged “conspiratorial activities” did not threaten the national security nor does the alleged criminal activity of the appellants fall within the ambit of the meaning of “Organized crime” as that term was defined by the Congress in Title I of the Omnibus Crime Control and Safe Streets Act of 1968. “Organized crime” is defined in 42 U.S.C. § 3781(b) (1970), to mean “the unlawful activities of the members of a highly organized, disciplined association engaged in supplying illegal goods and services, including but not limited to gambling, prostitution, loan sharking, narcotics, labor racketeering, and other unlawful activities of members of such organizations,” We agree that the alleged conspiracy among Bechtel, Martin, and Shingleton might be considered to be “organized,” but their purported illegal conduct falls short of being a “highly organized, disciplined association.” The definition that the Congress employed conjures up mental images of crime syndicates presided over by a “Godfather,” “don,” “boss,” “chief,” and the like. It may or may not be a part of the Mafia, Camorra, Cosa Nostra or any of their American cousins, but it most certainly does not cause one to ideate a conspiratorial trio whose purpose is to violate successfully this State’s controlled dangerous substances laws. In our view, the Congressional definition of organized crime does not contain sufficient elasticity to allow it to be stretched to include the type of conspiracy charged in the instant case.

Because the verbal application and oral order thereon is not within the scope of the exception, 18 U.S.C. § 2518(7), to the obtaining of a written intercept order, it was absolutely worthless. It flew straight into the face of the Omnibus Crime Control and Safe Streets Act of 1968 despite the judge’s good intent. The federal act prescribes, in section 2518(1), that:

“Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application____” (Emphasis supplied.)

Except for provisions of section 2518(7) permitting verbal application and orders, which we have found to be inapplicable to the case sub judice, there are no other exigent circumstances, real or fancied, which allow an oral intercept order. The fact that the Congress mandated that such orders be “in writing upon oath or affirmation,” section 2518(1), evidences that the Congress desired, under all circumstances save section 2518(7), in which the federal act was employed, to guarantee proper, before the fact, judicial review of the affidavit, application and the proposed order. State v. Siegel, 266 Md. 256, 274, 292 A. 2d 86, 95 (1972), declares “[t]he statute [Title III 18 U.S.C. §§ 2510-2520] sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” (Original emphasis.) See also Poore v. State, 39 Md. App. 44, 47, 384 A. 2d 103, 106 (1978). In Poore, we pointed out the distinction between the strict pre-order compliance dictated by Siegel and the substantial post-order compliance, absent prejudice to the accused, sanctioned by Spease v. State, 275 Md. 88, 338 A. 2d 284 (1975). Poore v. State, 39 Md. App. at 51-61, 384 A. 2d at 108-14.

Unquestionably, the verbal order in the case subjudice was governed by the strict pre-order compliance prescribed by Siegel. The order fails to meet that requirement and is, as we have already noted, totally invalid. We look with much disfavor upon the procedure used in the instant case, both as to the application for the order and the authorization of the interception. We note that had the application and order been made subsequent to July 1,1977, there would not have been the slightest argumenta! justification for the issuance of such an order because the Maryland law does not recognize the “emergency situation” exception specified in 18 U.S.C. § 2518 (7).

The Fourth Amendment, as has been said many times over, prohibits “unreasonable government intrusions into ... legitimate expectations of privacy.” United States v. Chadwick, 433 U. S. 1, 7, 97 S. Ct. 2476, 2481, 53 L.Ed.2d 538, 546 (1977). The Congress, in its capacity as representative of the populace wrote into the Omnibus Crime Control and Safe Streets Act of 1968, what it perceived to be adequate safeguards of the right of the people to be free from governmental or private electronic interloping. It carefully spelled out the judicial function of prior approval of wire or electronic eavesdropping and interception, as well as the post-order procedure to be followed. Simultaneously, it forbade private persons to manufacture, possess and distribute devices “primarily useful for the purpose of surreptitious interception of wire or oral communications____” 18 U.S.C. § 2512(1).

When individual constitutional rights are rendered nugatory in the interest of expediency, then the Constitution, itself, may as well be thrown upon a scrap pile, and we declare that cases are to be decided on the basis of what is in the best interest of the State. Such a step would be, in actuality, a giant-sized stride away from the concept formulated by our ancestors, when they adopted the Bill of Rights, and a synchronous move toward the non-democratic principle that what is good for the State is good for everybody. We emphatically decline to take any step toward that end.

If the facts in this case ended with the illegal interception of that particular telephone call, we would quickly strike down the order and direct that the evidence derived therefrom be suppressed. The record discloses, however, that while there was an interception made as a result of the oral order, there was no transcript of that call nor was its content made known to the jury. While it might be argued that the unlawfully overheard conversation formed the base of a pyramid, there is nothing but pure conjecture to support such an hypothesis. Indeed, in the light of the admissible evidence contained in fifty-eight (58) transcriptions, many of which were made before the oral authorization under attack, the pyramid theory disintegrates. Consequently, even though the verbal order was manifestly wrong, there is no reversible error inasmuch as the appellants have sustained no demonstrated prejudice therefrom.

II.

“The evidence was insufficient to sustain ... [Martin’s and Shingleton’s] convictions for possession of various controlled dangerous substances.”

On the strength of a search and seizure warrant, the house in which Martin and Shingleton resided was searched for contraband. Quantities of lysergic acid diethylamide (LSD), marijuana, opium, and amphetamines were found in the residence.

The record shows that the keys to the house were obtained from Martin. That she and Shingleton shared the residence is beyond serious dispute. There is no evidence that anyone else lived with them. The tape recordings of intercepted conversations demonstrates Martin’s knowledge of Shingleton’s illicit activities.

The test for the sufficiency of the evidence has been stated by this Court on many occasions to be “whether the admissible evidence adduced at trial shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” James v. State, 14 Md. App. 689, 694, 288 A. 2d 644, 647 (1972). (Citations omitted.)

If the evidence in the case now before us were visualized as water being poured into a bucket, representing sufficiency, the bucket was not only filled to capacity, but it overflowed.

III.

“The trial judge erred in admitting evidence obtained from the warrantless search of Shingleton’s briefcase.”

When the van in which Martin and Shingleton were riding was halted by the Maryland State Police, a briefcase that had been carried by Shingleton when he exited the aircraft and entered the vehicle was seized along with the van. The appellants assert that under the Supreme Court’s holding in United States v. Chadwick, supra a search and seizure warrant was necessary in order for the police to open and search the briefcase. The State, on the other hand, views the search as permissible under the so-called automobile exception. Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L.Ed.2d 419 (1970).

In Chadwick, railroad officials in San Diego saw two (2) men “load a brown footlocker onto a train bound for Boston.” 433 U. S. at 3, 97 S. Ct. at 2479, 53 L.Ed.2d at 543. The trunk appeared to be very “heavy for its size,” Id., and “it was leaking talcum powder, a substance often used to mask the odor of marihuana or hashish.” Id. One (1) of the men who loaded the footlocker onto the train “matched a profile used to spot drug traffickers.” Id. The railroad official notified federal agents in San Diego and they in turn alerted “their counterparts in Boston.” Id. Two (2) days later, when the train arrived in Boston, federal agents were waiting for it. The same two (2) men who had loaded the trunk in San Diego were observed claiming “their suitcases and the footlocker, which had been transported by baggage cart from the train to the departure area.” Id. at 3-4, 97 S. Ct. at 2479, 53 L.Ed.2d at 543.

When the footlocker was lifted from the car and set upon the floor, a dog, especially trained in the detection of marijuana, apparently approached the footlocker and “signaled the presence of a controlled substance inside.” Id. at 4, 97 S. Ct. at 2479, 53 L.Ed.2d at 543. The locker was carried by the two (2) suspects to Chadwick’s waiting vehicle. The footlocker was placed in the trunk of the car. Before the trunk of the car was closed, the federal agents effected the arrest. Chadwick’s vehicle was removed to the Federal Building in Boston where a warrantless search was made of the double locked footlocker. The Court, speaking through the Chief Justice, discussed the history of the Fourth Amendment, noting that its purpose is to protect “people, not places.” Id. at 7, 97 S. Ct. at 2481, 53 L.Ed.2d at 546. Pointing out that the Government did “not contend that the footlocker’s brief contact with Chadwick’s car makes this an automobile search,” Id. at 11, 97 S. Ct. at 2483-84, 53 L.Ed.2d at 548, the Court went on to hold that:

“Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. ” (Footnote omitted.) Id. at 15, 97 S. Ct. at 2485, 53 L.Ed.2d at 551. (Emphasis supplied.)

The instant case presents us with a situation not too distantly related to Chadwick. Although the Maryland State Police possessed a warrant to search Martin’s van, the warrant had been issued in Calvert County. It could not validly be and was not served in Prince George’s County. Gattus v. State, 204 Md. 589, 105 A. 2d 661 (1954). No search warrant was obtained in Prince George’s County, and there is no reason for the non-obtention present within the record.

When the van was stopped by the police, the occupants were removed from the vehicle and placed under arrest. A quick warrantless search was conducted on the spot. The State Police discovered the briefcase and opened it. As we read Chadwick, the contents of the briefcase were protected by the cloak of the Fourth Amendment. Plainly, a briefcase is more like luggage, about which Chadwick holds that one has a right of expectation of privacy, than like a motor vehicle, a highly mobile object, usually open to view and in which one may reasonably expect less privacy. Moreover, there is no testimony of any emergency requiring the warrantless search of the briefcase. The officers did not express any fear or apprehension over weapons or explosives. The only remaining justification for the intrusion into the briefcase was the possibility that the contents would be destroyed by the two (2) appellants who were arrested at the scene. Those two (2), Martin and Shingleton, were in custody and, inferentially, unable or incapable of destroying the briefcase’s contents. The sum and substance of the facts being that, in this case, no justification existed for the warrantless search of the briefcase. Chadwick v. United States, supra; Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777 (1964).

We are mindful of a number of cases seeming to justify such a search as that present in this matter on the theorem of search incident to an arrest. Cady v. Dombrowski, 413 U. S. 433, 93 S. Ct. 2523, 37 L.Ed.2d 706 (1973); Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, supra; Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969). See also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968); Mobley v. State, 270 Md. 76, 310 A. 2d 803 (1973); aff’g King v. State, 16 Md. App. 546, 298 A. 2d 446 (1973). The rationale for upholding warrantless searches made incident to arrest is the safeguarding of the arresting officers or preventing the loss of evidence. That proposition evaporates in view of the separation of the briefcase from the arrestees. Because, in the case sub judice, the clear and present danger to the police and the likelihood of destruction of the evidence were dispelled by the separation of the appellants, Martin and Sbingleton, from the van and, obviously, from the briefcase, there was no need for a warrantless search of the briefcase. United States v. Chadwick, supra; Preston v. United States, supra.

Under the circumstances of this case, the police should have obtained a search warrant before opening and searching the briefcase, and the trial court erred in admitting the contents of the case into evidence.

Although there was ample authority, as Mr. Justice Blackmun observed in his dissent in Chadwick, for the position that a briefcase in a car may be searched as part of the “automobile exception” expounded by Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); see e.g., United States v. Tramunti, 513 F. 2d 1087 (2d Cir. 1975) (suitcase in back seat of a car); United States v. Issod, 508 F. 2d 990 (7th Cir. 1974), cert, denied, 421 U. S. 916 (1975) (trunk in railroad station); United States v. Soriano, 497 F. 2d 147 (5th Cir. 1974) {en banc) (suitcases in trunk of taxicab); United States v. Evans, 481 F. 2d 990 (9th Cir. 1973) (footlocker in trunk of automobile), nevertheless, to the extent those cases conflict with Chadwick, they are implicitly laid to rest. The law is now clear that the police, having gained “exclusive control” of the briefcase and eliminated by space and time any possibility of the arrestee’s “gain[ing] access to the property to seize a weapon or destroy evidence,” may not then conduct a warrantless search of that property under the guise of a search incident to the arrest. United States v. Chadwick, 433 U. S. at 15, 97 S. Ct. at 2485, 53 L.Ed.2d at 551; Preston v. United States, supra. Hence, the briefcase and its contents should have been suppressed and it is reversible error for the trial judge not to have excluded that illegally seized evidence.

IV.

“The trial judge abused his discretion in questioning Trooper Porter as to his interpretation of a wiretap conversation.”

Shingleton alleges that the trial judge “crossed the line of impartiality” in his questioning of the State Trooper. It is the duty of the trial judge to endeavor to see that evidence is clear to the jury. We do not believe the judge crossed the threshold of impartiality in questioning the trooper. In any event, the attack is directed to the wiretap. The wiretap is connected with the conspiracy to possess cocaine, and we have already indicated our reversal of those convictions. The impartiality threshold crossing is thus purely academic.

V.

Reversal being declared, we would ordinarily halt our discussion at that point. In this case, however, we deem it advisable to express another reason why this judgment must be reversed. Bechtel poses the following issue:

“The court erred in denying the appellant’s motion for severence, \sic\ timely filed.”

Prior to trial, Bechtel moved to sever his case from that of Martin and Shingleton. Patently, the reason for the motion was that Bechtel was concerned over the other charges that had been filed against his co-defendants. He feared that the possession of proscribed narcotics evidence against Martin and Shingleton would spill over onto him to such an extent that the jury would have difficulty separating the wheat from the chaff, thereby causing him to be subject to guilt by association. The judge’s declination to sever the cases, he asserts, denied him a fair and impartial trial. We agree with Bechtel, and we add that at oral argument, the State submitted that “there are no Maryland cases which would justify joinder in this case.” The State did, however, urge us to adopt the view of federal courts and hold the joinder to be permissible. In order to follow that course, we would have to overrule our holding in Wilson v. State, 8 Md. App. 653, 262 A. 2d 91 (1970), and ignore the decisions of the Court of Appeals in McKnight v. State, 280 Md. 604, 375 A. 2d 551 (1977), rev’g 33 Md. App. 280, 364 A. 2d 116 (1976); McChan v. State, 238 Md. 149, 207 A. 2d 632 (1965); and Lewis v. State, 235 Md. 588, 202 A. 2d 370 (1964). We possess neither the inclination to overrule Wilson nor the power to ignore, thus implicity overruling, McKnight, McChan, and Lewis.

Md. Rule 745 c provides:

“If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents or defendants, the court may, upon its own motion or the motion of any party, order separate trials of counts, charging documents or defendants, or grant any other relief justice requires.”

In McChan, the Court of Appeals pointed out that McChan “was put on trial with his codefendants in four cases in which he was charged jointly with at least two other defendants, and in three cases in which he was not charged at all____” 238 Md. at 160, 207 A. 2d at 639. The Court was of the view that joinder was prejudicial and reversed. Id.

Lewis reversed judgments of the Criminal Court of Baltimore because the trial judge refused to sever Lewis’s case from that of co-defendants. The Court reasoned that “all of the defendants ... were not 'alleged to have participated in the same act or transaction or in the same series of acts or transactions’ which constituted the offenses ... [charged in various] indictments____” 235 Md. at 590-91, 202 A. 2d at 371.

Judge Levine, for the Court of Appeals in McKnight, noted that “[a]t the very least, the joinder of multiple charges may produce a latent hostility, which by itself may cause prejudice to the defendant’s case.” 280 Md. at 609, 375 A. 2d at 554. The Court went on to opine that “a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.” 280 Md. at 612, 375 A. 2d at 556.

Certainly, the evidence concerning the possession of proscribed controlled dangerous substances, seized from the residence of Martin and Shingleton, and in no manner connected with Bechtel, would not have been admissible against Bechtel in a separate trial for the conspiracy to possess cocaine. Wilson v. State, 8 Md. App. at 665-66, 262 A. 2d at 98-99.

The non-conspiratorial offenses of Martin and Shingleton were unrelated to the offenses for which Bechtel was called to account. Directing that he stand trial along with Martin and Shingleton on the conspiracy charges was entirely proper, but compelling him to stand trial, at the same time that other substantive charges, unconnected with Bechtel, were being pressed against Martin and Shingleton served no useful purpose except to save the costs of another jury trial. That economy may not be employed to deprive Bechtel of his right to a separate trial. We think the trial judge abused his discretion in refusing the severance.

Irrespective of what the law may be elsewhere, it is clear in this State that an accused may not be required to stand trial either on a series of unrelated offenses, wherein the evidence is shown not to be mutually admissible, McKnight v. State, supra, or with co-defendants who are also being tried for other offenses not related to the accused, if the evidence relative to those “other offenses” will prejudice the accused. Wilson v. State, supra.

In view of our holding, it is not necessary to discuss the remaining potpourri of issues raised by Bechtel inasmuch as they are not likely to be presented in any subsequent trial.

From what we have said, the “bottom line” is that judgments entered on the conspiracy to possess cocaine are reversed and remanded for a new trial as to Bechtel, and Shingleton. The judgments against Martin and Shingleton for possession of LSD, marijuana, opium, and amphetamines is affirmed.

Judgments on criminal trials C-76-61 and C-76-68 reversed and cases remanded for a new trial.

Judgments on cases C-76-63 and C-76-64 affirmed.

Two-thirds (2/3) of the costs to be paid by Calvert County.

One-third (V3) of the costs to be paid by appellants Shingleton and Martin.

      . Effective July 1, 1977, Maryland adopted its own “Wiretapping and Electronic Surveillance Act” in the Courts and Judicial Proceedings Article §§ 10-401 — 10-412, inclusive. See Poore v. State, 39 Md. App. 44, 384 A. 2d 103 (1978).

      . At oral argument, the question of whether Bechtel was a fugitive from this State was disputed. Counsel for Bechtel asserted that his client was not a fugitive inasmuch as the charges which inferentially led to Bechtel’s voluntary absence from the State had been stetted.

      . The Maryland Wiretapping and Electronic Surveillance Law, Md. Cts. & Jud. Proc. Code Ann. ijij 10-401 — 10-412, contains no such exception.

      . A similar provision is contained in Md. Cts. & Jud. Proc. Code Ann. § 10-408 (a) (Cum. Supp. 1977).

      . The same rationale is applicable to the current Maryland statute.

      . Although Chadwickwas handed down subsequent to the trial of the case sub judice, we believe its decision, reaffirming established standards of search and seizure, may be viewed retroactively in accordance with the considerations set forth in Stovall v. Denno, 388 U. S. 293, 297, 87 S. Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203 (1967):
      “The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”

        See Rassmussen v. State, 18 Md. App. 443, 448-50, 306 A. 2d 577, 580 (1973); Scott v. State, 7 Md. App. 505, 516-18, 256 A. 2d 384, 391-92 (1969).

      . Gattus holds that a “search must be made within the limits of the jurisdiction of the judge ... issuing the same. A search warrant cannot have extra territorial effect.” 204 Md. at 595, 105 A. 2d at 664.

      . No attempt was made by the State to justify the search of the van on the basis of an “inventory search” for the purpose of protecting both the police and the property owner. See Waine v. State, 37 Md. App. 222, 377 A. 2d 509 (1977).

      . Prior to Chadwick, the Court, in Preston v. United States, supra, considered a factual situation where three (3) men were charged with vagrancy and “were under arrest at the police station and the car was in police custody at a garage, ... [so that there was no danger] that the car would be moved out of the locality or jurisdiction.” 376 U. S. at 368, 84 S. Ct. at 884, 11 L.Ed.2d at 781. Thus, the subsequent search of the vehicle was too remote in time and place to the arrest to be a search incident to that arrest. See J. Cook, Constitutional Rights of the Accused Pre-Trial Rights § 61 (1972).

      . See United States v. Laca, 499 F. 2d 922 (5th Cir. 1974); United States v. Isaacs, 493 F. 2d 1124 (7th Cir. 1974); United States v. Leach, 429 F. 2d 956 (8th Cir. 1970); Haggard v. United States, 369 F. 2d 968 (8th Cir. 1966); Wiley v. United States, 277 F. 2d 820 (4th Cir. 1960); Scheve v. United States, 184 F. 2d 695 (D.C. Cir. 1950).

      . At time of trial, joinder and severance were controlled by then Md. Rules 734 and 735. By Chapter 700, effective July 1,1977, those two (2) rules were consolidated into Md. Rule 745.


source: Caselaw Access Project

license: Public Domain

text:
    THE OHIO CASUALTY INSURANCE COMPANY v. INSURANCE COMMISSIONER OF THE STATE OF MARYLAND
    [No. 1145,
    September Term, 1977.]

      Decided June 9, 1978.

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

      William M. Nickerson, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellant.

      Thomas E. Plank, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Carl E. Eastwick, Assistant Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

“Once the decision to appeal has been made, the first, obvious and cardinal duty of the appellate advocate is to read with care and attention the rules of the Court of Appeals.” A. Scanlan, Effective Appellate Advocacy in the Court of Appeals of Maryland, 29 Md. L. Rev. 126, 127 (1969). The case now before us must fall casualty to appellant’s failure to comply with Md. Rules ch. 1100, “Subtitle B. Administrative Agencies — Appeal From.”

This appeal arises directly from a complaint filed by Myles Farley, the principal of Stansbury Joppatowne, Inc., trading as Stansbury Photo & Stereo (Stansbury) with the Insurance Commissioner, Maryland Department of Licensing and Regulation (Commissioner) against Ohio Casualty Insurance Company (Ohio). The focal point of the dispute is a disagreement as to which of two (2) endorsements, one providing coverage of up to one thousand dollars ($1,000) and the other setting a monetary ceiling of fifteen thousand dollars ($15,000) applies to Stansbury’s claim for recompense for losses incurred in an armed robbery. Ohio would agree to reimburse Stansbury to the extent of the lower limit coverage only. Stansbury, however, contended that the higher limit endorsement applied to his claim, and, as we have indicated, he filed charges with the Commissioner under Md. Ann. Code art. 48A, § 55 (2) (iv), alleging that Ohio “unreasonably refused or delayed payment to the Complainant of the amount due----”

The Commissioner, pursuant to Md. Ann. Code art. 48A, § 27, convened a hearing on December 11, 1975. Approximately two (2) months later, the Commissioner issued an order in which he found that Ohio was liable under the endorsement that set the higher limits. Ohio was held to be in violation of Md. Ann. Code art. 48A, § 55, as a result of unreasonably refusing or delaying payment to Stansbury. The Commissioner directed Ohio “to ... pay unto the Complainant [Stansbury] restitution for the loss which occurred on or about April 26, 1975----”

Ohio, on February 26, 1976, filed a notice of appeal in the Baltimore City Court, in accordance with Md. Ann. Code art. 48A, § 40 (1). Although the appeal was timely taken, Ohio overlooked the requirement of Md. Rule B2 e that a petition “setting forth the action appealed from, the error committed by the agency in taking such action, and the relief sought...” must be filed with the clerk of the court not later than ten (10) days after the filing of the order of appeal.

Within the time allowed for an answer, Md. Rule B9, but well after the ten (10) day period in which to file the petition had expired, the Commissioner moved pursuant to Md. Rule B5 to dismiss Ohio’s appeal for non-compliance with Md. Rule B2 e.

On the seventh day following the Commissioner’s motion to dismiss, Ohio responded by dual pleadings in the City court. It belatedly complied with Md. Rule B2 e by filing the required “petition” alleging that the Commissioner’s findings were not in accord with the factual evidence adduced at the administrative hearing. Ohio also answered the Commissioner’s motion to dismiss. In its response, Ohio sought to excuse its failure to obey Md. Rule B2 e by stating that “if found to be in error as to procedure, [it] was misled by the statutory provision of Art. 48A, § 40, which appears to provide complete separate and distinct procedural guidelines for appeals from Orders of the Insurance Commissioner.”

Md. Ann. Code art. 48A, § 40 (1) provides in pertinent part:

“An appeal from the Commissioner shall be taken only from an order on hearing or with respect to a matter as to which the Commissioner has refused a hearing. Any person who was a party to such hearing, or whose pecuniary interests are directly and immediately affected by any such order or refusal and who is aggrieved thereby may, within thirty (30) days after (i) the order has been mailed or delivered to the persons entitled to receive... [it] appeal from such order____The appeal shall be taken to the Baltimore City court, by filing written notice of appeal in such court and by filing a copy of such notice with the Commissioner____”

The motion by the Commissioner to dismiss Ohio’s appeal from the Commissioner’s order was denied by a judge of the Supreme Bench. Subsequently, the matter was heard on its merits before Judge David Ross who affirmed the Commissioner’s order. Ohio has now carried its “great bundle of grief” to this Court, where it urges us to banish its sorrow by reversing Judge Ross’s order. The Commissioner, either not satisfied with having prevailed in the City court on the merits, or not to be outdone by Ohio, has also appealed. The Commissioner asserts that the hearing court erred in denying the motion to dismiss Ohio’s appeal from the Commissioner’s order.

We shall consider the counter-appeal first in view of the fact that if the motion to dismiss was improperly denied, the City court lacked jurisdiction to hear the merits and Ohio’s appeal, in its present posture, is not properly before us. The hearing judge ruled that Ohio had “complied with [the] statutory requirements” relative to appeals from the Commissioner, and, accordingly, he denied the motion to dismiss. By so doing, the judge implicitly held that Md. Rules, Ch. 1100, Subtitle B, were not controlling.

Md. Rule B1 a provides that Subtitle B “shall apply to the review of any final action of an administrative agency by a court where such review is specially authorized by statute____” An administrative agency is defined by Md. Rule B1 b to mean, inter alia, “any ... commissioner ... whose action or decision is specifically subject to court review----”

If Ohio's appeal falls within the ambit of the B rules, it is subject to the clear mandate of Rule B2 e, which states:

“The appellant shall join with his order for appeal, or shall file with the clerk of the court, within ten days after filing the order, a petition setting forth the action appealed from, the error committed by the agency in taking such action, and the relief sought, and shall serve a copy thereof on the agency.”

Failure to comply with Rule B2 e may result in dismissal of the appeal under Rule B5.

“If the appellant shall fail to file his order for appeal within the time prescribed by Rule B4 (Time for Filing) or any order issued pursuant thereto, or shall fail to file his petition within the time prescribed by section e of Rule B2 (How Appeal Taken), the court shall dismiss the appeal unless cause to the contrary be shown." Md. Rule B5. (Emphasis supplied.)

See Renehan v. Public Service Comm. 231 Md. 59, 188 A. 2d 566 (1963); Aberle v. Mayor & City Council of Baltimore, 228 Md. 542, 180 A. 2d 836 (1962); Merrimack Park v. County Board of Appeals, 228 Md. 184, 179 A. 2d 345 (1962).

Ohio contends that it successfully proved “cause” for not complying with Md. Rule B2 e. “Cause,” as used in Md. Rule B5, refers to “good cause.” Merrimack Park v. County Board of Appeals, supra; Madore v. Baltimore County, 34 Md. App. 340, 367 A. 2d 54 (1976). In Madore, this Court quoted approvingly from Lee v. Houston Fire & Cas. Ins. Co., 530 S.W.2d 294, 296 (Tex. 1975) where it was stated:

“ ‘The test for ... [finding good cause] is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.’ ” 34 Md. App. at 345, 367 A. 2d at 57.

Ohio maintains that Md. Ann. Code art. 48A, § 40’s “procedural mandates are presented in such language and detail as to lead to the conclusion that the following of the procedural requirements set down by the statute is altogether sufficient to perfect an appeal to the Baltimore City Court. The reason why a petition for appeal was not joined to the order of appeal... is that counsel for Ohio believed that the procedures outlined in Art. 48A, Sec. 40 were complete and accomplished what they purport to accomplish on their face, i.e., how to take an appeal.”

Ohio relies heavily upon the wording of what it terms a “particularly descriptive ... subtitle: ‘(1) Decisions Appealable; how, and by whom appeal taken____’ ” What Ohio ignores is that the “particularly descriptive... subtitle” is not part of the law as enacted. See 1976 Md. Laws Ch. 472, § 11; 1975 Md. Laws Ch. 221, § 1; 1974 Md. Laws Ch. 748; 1966 Md. Laws Ch. 412; 1963 Md. Laws Ch. 553; 1962 Md. Laws Ch. 36, § 32; 1945 Md. Laws Ch. 564, § 1. The “subtitle” quoted by Ohio is but the Editor’s catchwords to indicate the content of the section and “unless expressly provided,” it is not part of the law. Md. Ann. Code art. 1, § 18 declares:

“The captions or headlines of the several sections of this Code which are printed in bold type, and the captions or headlines of the several subsections of this Code which are printed in italics or otherwise, are intended as mere catchwords to indicate the contents of the sections and subsections. They are not to be deemed or taken as titles of the sections and subsections, or as any part thereof; and, unless expressly so provided, they shall not be so deemed or taken when any of such sections and subsections, including the captions or headlines, are amended or reenacted.”

See Montgomery County v. Eli, 20 Md. App. 269, 315 A. 2d 136 (1974).

That Ohio was misled, as it avers, by the “particularly descriptive ... subtitle” is no excuse. The law is crystalline that section titles and subtitles are not part of the section or subsection unless expressly stated to be a part thereof. Md. Ann. Code art. 1, § 18. Thus, Ohio’s reliance upon the descriptive subtitle is completely misplaced. Comparison of Md. Ann. Code art. 48A, § 40, and the B rules reveals that the provisions not only do not conflict, but are, in fact, harmonious. Absent section 40’s authorization of appeal, the B rules would not apply because Md. Rule B1 a mandates that an appeal be “specifically authorized” by statute. Maryland-National Capital Park and Planning v. City of Rockville, 269 Md. 240, 305 A. 2d 122 (1973).

Ohio emphasizes a 1973 determination by the Attorney General that section 40 “provides procedural safeguards against unreasonable, arbitrary or capricious exercise of power by the Commissioner.” 58 Attorney General’s Opinions 92, 99 (1973). We agree that is precisely what section 40 in fact does. It authorizes an avenue of appeal. Section 40, however, is not autonomous and must be read in conjunction with Md. Rules B1 to B12. See County Federal Savings and Loan Assoc, v. Equitable Savings and Loan Assoc., Inc., 261 Md. 246, 274 A. 2d 363 (1971).

Ohio further points out that the Rules Committee set forth a cross-reference annotation, following Md. Rule B1 a, listing certain statutes subject to the dictates of Md. Rules B1 to B12. Md. Ann. Code art. 48A, § 40 is conspicuously absent therefrom. The Committee note makes clear, however, there exists a “substantial volume of statutory provisions dealing with the procedural aspects of appeals from State and local administrative agencies to the nisi prius courts. The Code of Public General Laws was examined page by page in an effort to discover all of these statutory provisions.” The Committee’s note makes manifest that while an effort was made to record as many applicable sections of the Code as possible, the “cross-reference” is by no means all-inclusive. The note acknowledges possible errors or omissions in compiling the affected provisions. The mere absence of Md. Ann. Code art. 48A, § 40 is no indication that it is exempt from the requirements of Rules B1 to B12.

Ohio’s argument that “[w]hether this court agrees or disagrees that Md. Ann. Code Article 48A, § 40 purports to provide the appeals procedure from the Insurance Commissioner, is not, necessarily, dispositive of this case,” is only accurate if “good cause” for nonadherence to Md. Rule B2 e is shown. Md. Rule B5. In our view, Ohio’s mistaken belief that Article 48A, § 40 established procedures independent of the Maryland Rules of Procedure is not good cause. Ignorance of the law cannot serve as an excuse for failure to file a petition of appeal. A reason or explanation of why a particular event occurred is not necessarily an acceptable excuse for the happening. That a lawyer was misled by the caption to a statute explains why he erred, but does not excuse the error any more than the captain who drives his ship upon the shoals is excused because he misread the chart.

Rule B5 mandates dismissal of an appeal where the appellant “shall fail to file” either the order or petition of appeal “within the time prescribed” by the Rules, “unless cause to the contrary be shown.” “Cause,” we have already seen, means “good cause.” Merrimack Park v. County Board of Appeals, supra. The cases relied on by Ohio to support its failure to file are inapposite to the ease sub judice. In Merrimack Park v. County Board of Appeals, supra, good cause was found excusing appellant’s omission of a petition of appeal because the appellant was informed by the Board’s counsel that the Board would not require a petition so long as it was filed a few days before the date of hearing. The Court held that the action of the Board’s counsel constituted cause within the meaning of the rule in that the Board’s counsel “lulled” appellant into the position where its appeal was dismissed. Merrimack differs markedly from Ohio’s situation.

We do not quarrel with the proposition that:

“[W]here there has been compliance with the substance of the requirements of statutes or rules by one party and the other party has not been prejudiced, technical irregularities cannot be made the basis for depriving persons of an opportunity to assert their legal rights____” McLay v. Maryland Assemblies, Inc., 269 Md. 465, 476-77, 306 A. 2d 524, 530 (1973) (Citations omitted.)

The above rule has served to save appeals from dismissal in cases such as Border v. Grooms, 267 Md. 100, 297 A. 2d 81 (1972), where a good faith attempt to comply with Md. Rule B2 e was made. In Grooms, a petition of appeal was served on counsel for the Zoning Board instead of on the Board itself. Because the Zoning Board’s attorney was found to be acting on the Board’s behalf, the purpose of Md. Rule B2 e was deemed to be satisfied. See Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 225 A. 2d 294 (1966), in which a motion to dismiss was denied where a petition was timely filed but failed to allege that appellants were the persons aggrieved. See also Board of County Comm’rs v. Kines, 239 Md. 119, 210 A. 2d 367 (1965); Irvine v. Montgomery County, 239 Md. 113, 210 A. 2d 359 (1965).

Chief Judge Murphy was careful in Grooms to distinguish those cases in which no proper petition of appeal was ever timely filed. The Court, in Volk v. Pugatch, 262 Md. 80, 277 A. 2d 17 (1971), upheld the granting of a motion to dismiss where appellant neglected to file a petition of appeal or to transmit the record and testimony in accordance with Md. Rules B2 e and B7 a. Similarly, in Salisbury Board of Zoning Appeals v. Bounds, 240 Md. 547, 214 A. 2d 810 (1965), the Court reversed the trial court’s denial of a motion to dismiss where a petition of appeal was not filed until thirty (30) days past the deadline prescribed for such filing by Md. Rule B2 e. An appeal was also dismissed in Warmack v. Bradley Club, Inc., 242 Md. 394, 219 A. 2d 12 (1966). There, the Court said that appellee’s shopping for counsel did not justify a ten (10) day delay in filing.

The fact that the Commissioner, in the instant case, suffered no prejudice as a result of the delay is irrelevant. Rule B5 does not require a showing of prejudice to the adverse party as a prerequisite of the trial court’s dismissing a late appeal. Border v. Grooms, supra; Volk v. Pugatch, supra; Warmack v. Bradley Club, Inc., supra; Salisbury Board of Zoning Appeals v. Bounds, supra.

Md. Rule B2 e and Md. Ann. Code art. 48A, § 40 are to each other as flour is to bread. Without using flour you cannot make bread; without using the B Rules you cannot perfect an appeal from an administrative agency.

The trial court is vested with far less discretion in applying Rule B5 than Ohio suggests. The rule plainly states that the trial court, in the absence of cause to the contrary, “shall” dismiss the appeal for non-compliance with Md. Rule B2 e. The use of the word “shall” indicates that very little elasticity is allowed. Nevertheless, Ohio asks us to read the rule as discretionary rather than as a command. The appellate courts of this State have consistently refused to construe the rule in such a fashion. Cf. Jacober v. High Hill Realty, Inc., 22 Md. App. 115, 321 A. 2d 838 (1974), cert. denied, 272 Md. 743 (1974), failure to file timely under Rule B7; Goldman v. Tauber, 258 Md. 174, 176, 265 A. 2d 225, 226 (1970), failure to file timely under Md. Rule 825 b. But see Toomey v. Gomeringer, 235 Md. 456, 201 A. 2d 842 (1964), which alluded to a certain degree of flexibility inherent in Md. Rule B2 e. Toomey, however, has not been followed in later cases.

The courts have very little leverage in permitting untimely appeals. The most persuasive appeal, “if filed late, may prove to be an expensive and professionally embarrassing exercise in futility____Thus, if... [the petition] for appeal is not filed within the allotted time, the appeal must be dismissed, since courts lack the power or discretion to allow an appeal which is not filed within the prescribed time.” A. Scanlan, Effective Appellate Advocacy in the Court of Appeals of Maryland, 29 Md. L. Rev. 126, 127-28 (1969).

We think that Ohio’s attempted appeal from the Insurance Commissioner should have been dismissed by the hearing judge. Contrary to the hearing judge’s view, Ohio did not comply “with statutory requirements.” It was not properly in court, and the case should not have been permitted to go forward on its merits as the court, by Ohio’s mistake, had been ousted of jurisdiction.

For whatever solace it may be to Ohio, if the trial court had jurisdiction, and if the case were properly before us on its merits, we could not find that Judge Ross erred in affirming the Commissioner’s decision.

Under Md. Ann. Code art. 48A, §§ 55 (2) (iv) and 55A, the Commissioner may require that restitution be paid to a claimant where an insurer “unreasonably refuses or delays payment to claimants of the amount due them.” Implicitly, Judge Ross found that Ohio had, in fact, “unreasonably ... [refused] payment to Stansbury.”

The fact finding by Judge Ross is subject to the clearly erroneous test. Md. Rule 1086. The facts are susceptible of two (2) different findings, i.e., Myles Farley, the owner of Stansbury, was acting at the time of the loss as a watchman for his wholly-owned corporation or that he was not. If Farley was found to be acting as a watchman, the higher policy limits apply. If he was acting in another capacity, the lower limits were applicable. In either event, we are not at liberty to substitute our judgment thereon for that of the trial judge, Md. Rule 1086, nor are we prepared to declare, in the face of those two (2) possible distinct findings that as a matter of law the lesser limitations of the policy are applicable.

Appeal is dismissed and case remanded to the Baltimore City Court with instructions to dismiss the appeal from the Insurance Commissioner.

Costs to be paid by appellant.

      . Mr. Scanlan was an Associate Judge of this Court from November 9, 1972 to August 31, 1973.

      . See Mr. Scanlan’s comments revised and updated specifically for MICPEL, I The Maryland Appellate Practice Handbook B-143, B-144 (1977).

      . Prom Carl Sandburg (1878-1967), The People Live On [1936].

      . As we have previously indicated, Judge Ross decided the case on the merits after another judge had denied the motion to dismiss.

      . Decisions of administrative agencies are not irreviewable, and the courts have the inherent power to review such decisions on common law or constitutional grounds, even absent statutory provision, if the action taken by the agency is “shown to be arbitrary, illegal or capricious, and to impair personal or property rights____” Heaps v. Cobb, 185 Md. 872, 379, 45 A. 2d 73, 76 (1945). See also Hoffman v. Mayor and City Council of Baltimore, 187 Md. 593, 51 A. 2d 269 (1947); Hecht v. Crook, 184 Md. 271, 40 A. 2d 673 (1945); Dal Maso v. Board of County Comm’rs of Prince George’s County, 182 Md. 200, 34 A. 2d 464 (1943).

      . We set forth below, with corrections, the “list” prepared by the Rules Committee wherein Code provisions authorize appeals to the courts from other administrative agencies: Art. 1A, §§ 5-502, 8-801 to 8-803 (Aviation); Art. 2B, S§ 42, 175, 176 (Alcoholic beverages); Art. 11, §§40 (f), 175, 184 (Banks & Trust Companies); Art. 25, SS 46-48, 67, 199 (County Commissioners); Art. 25A, § 5 (U) (Chartered Counties of Maryland-County Board of Appeals); Art. 32, § 13 (Dentistry); Art. 33, §§ 3-21, 17-7, 19-2 (Election Code-Supervisor of Election); Art. 43, §§ 130, 169, 193 (f), 207, 222, 268 (d), 269, 277, 280, 325, 355, 480 (g), 490 (h), 553, 563, 574, 636 (e) (Health); Art. 48A, §§ 40, 215, 216, 245 (2) (Insurance Code); Art. 56, §§ 72, 91, 95, 98, 142, 204 (e) (2), 207, 225 (c) (Licenses); Art. 58A, § 7 (Loans-Consumer-Administrator of Loans); Art. 59, §§ 35, 54A (Mental Hygiene); Art. 661/2, §§ 6-211, 6-408 (Vehicle Laws); Art. 66A, § 19 (Moving Pictures-Motidn Picture Board of Censors); Art. 66B, §§ 2.09, 4.08, 6.03 (Zoning and Planning) (significantly, § 4.08 is the only provision that refers to the “B Rules” of Procedure); Art. 73B, § 39 (e) (Pensions); Art. 75%, § 17 (g) (Professional Engineers and Land Surveyors); Art. 77, §§12 (b), 149 (Public Education); Art. 78, §§ 42, 89-98 (Public Service Commission Law); Art. 78B, § 10 (Racing Commission); Art. 83, § 160 (Sales and Notices); Art. 85A, § 14 (Sedition and Subversive Activities-Commissioner of Personnel); Art. 88A, § 26 (State Department of Social Services-Child Care Institution Licensing); Art. 89, § 38 (Department of Labor and Industry); Art. 95A, §§ 7 (h) , 15 (c) (Unemployment Insurance Law); Md. Agrie. Code Ann. §§ 2-311, 3-107, 7-209 (e) (1974); Md. Corp. & Ass’ns Code Ann. § 11-704 (1975); Md. Nat. Res. Code Ann. §§ 1-107, 6-111, 7-307 (1974). This may not be complete. The careful practitioner will refer to the statute controlling the agency from which he desires to note an appeal; he will read the statute along with the B Rules of Procedure.

      . “Ignorance of the law excuses no man; not that all men know the law, but because ‘tis an excuse every man will plead, and no man can tell how to confute him.” John Seldon, The Table Talk of John Seldon (edited by Samuel Harney Reynolds 1892) p. 99.


author: Moylan, J.,

text:
    JOHN ALAN LANGWORTHY v. STATE OF MARYLAND
    [No. 848,
    September Term, 1977.]

      Decided June 12, 1978.

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

      MichaelS. Elder, Assigned Public Defender, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Richard Arnold, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Notwithstanding a plethora of at least nine sub-issues raised by the appellant, John Alan Langworthy, in a 40-page brief, answered upon the merits by the State in some 14 pages and reargued by the appellant in a reply brief of 17 pages, we feel compelled to decide this case on a ground not remotely alluded to by either appellant or appellee. We hold that a defendant, except under rare circumstances not here apposite, has no right to take an appeal from an acquittal. Judge William H. McCullough, sitting without a jury in the Circuit Court for Prince George’s County, tried the appellant and found him not guilty by reason of insanity.

Chapter 399 of the Acts of 1957 repealed all prior statutes regulating the right of appeal in criminal cases and enacted in lieu thereof a number of new provisions relating thereto. State v. Mather, 7 Md. App. 549, 551, 256 A. 2d 532. As Judge Levine pointed out for the Court of Appeals in Lohss and Sprenkle v. State, 272 Md. 113, 116, 321 A. 2d 534:

“Our consideration of the question presented here necessarily commences with a recognition of the principle that in Maryland, appellate jurisdiction is dependent upon a statutory grant of power____this is no less true, of course, in criminal cases____” (Citations omitted)

See also State v. Adams, 196 Md. 341, 351, 76 A. 2d 575; State v. Denisio, 21 Md. App. 159, 318 A. 2d 559.

In terms of the statutory grant, the Annotated Code of Maryland, Courts and Judicial Proceedings Article, § 12-301, provides in pertinent part:

“Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court____In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended.”

It is axiomatic that a party in whose favor judgment was rendered cannot appeal. Coates v. Mackey, 56 Md. 416; Mugford v. Baltimore, 185 Md. 266, 44 A. 2d 745; Wright v. Baker, 197 Md. 315, 79 A. 2d 159; Administrator, Motor Vehicle Administration v. Vogt, 267 Md. 660, 299 A. 2d 1. As the Court of Appeals said in Mugford, at 185 Md. 269:

“It needs no authorities to support the proposition that one cannot appeal from a decree wherein the relief he prays for has been granted.”

To be sure, a verdict of not guilty by reason of insanity differs in some respects in character from some verdicts of simply not guilty. A consummated crime requires the coming together of a guilty mind and a guilty act. Many verdicts of not guilty result from the failure of the State to prove the guilty act -- the actus reus. In many others, however, by no means limited to cases involving a successful insanity defense, the verdict results from the failure of the State to prove the guilty mind — the mens rea. In the eyes of the law, both results are the same. There is no crime. The negation of the mens rea may take myriad forms —- a justifiable homicide in self-defense or an excusable homicide by accident, notwithstanding clear homicidal agency; duress, entrapment, mistake of fact, insanity, even voluntary intoxication with respect to certain specific intent crimes. Whether a defendant wins because of the failure of the State to prove the actus reus, the criminal agency or the mens rea, he has won an acquittal in the eyes of the criminal law.

We are not unmindful of Morris v. State, 11 Md. App. 18, 272 A. 2d 668, but find that case readily distinguishable. Its peculiar facts virtually reduce it to a case suigeneris. In that case, to be sure, this Court, speaking through Judge Orth, permitted an appeal from a final judgment of not guilty by reason of insanity. The critical point on which that opinion turned, however, was the absolute failure to give the defendant there the trial upon the merits which he sought. Although he had entered a general plea of not guilty and a plea of not guilty by reason of insanity, he strenuously maintained his innocence and sought an opportunity to prove it. The State in that case absolutely foreclosed a trial upon the merits by confessing to a verdict of not guilty by reason of insanity. His adamant opposition to this foreclosing procedure was pointed out in our opinion, at 11 Md. App. 21:

“[H]e opposed, in a writing duly filed, ‘any action by the court in entering a judgment of not guilty by reason of insanity until such time as it should appear, beyond a reasonable doubt that there was, in fact, a crime committed.’ He asserted, ‘the plea as suggested by the State, presupposes guilt on the Defendant and such is properly not the case.’ He stated that he was, ‘in fact, not guilty of the offenses charged and until such time as the State should prove beyond a reasonable doubt that he is guilty of the charge of the offense of rape, the State could not, nor could the Defendant, properly seek to enter a finding of not guilty by reason of insanity without a trial.’ He pointed out, ‘While it is apparent that the Defendant was mentally ill, at the time in question, nowhere does it appear that this claim of rape took place and the evidence may indicate to the contrary.’ ”

In reaching our decision that the defendant there had been denied due process, we stressed the critical nature of having denied him an opportunity to show his innocence, saying at 11 Md. App. 25-26:

“To submit an accused to such commitment stemming upon a charge that he committed a crime and authorized upon a finding that he was not guilty thereof by reason of insanity without a trial at which the State produces evidence sufficient in law to show that the crime charged was committed and the accused, if sane, committed it, Williams v. State, 5 Md. App. 450, violates the presumption that he is innocent until proved guilty which is the heart of our judicial process and denies him due process of law----[HJere it is clear that appellant did not waive a trial. He demanded it below and challenged the action of the court in accepting the State’s confession of not guilty by reason of insanity. We believe, in the circumstances, that appellant was entitled to have the indictment returned against him tried on the pleas he made.”

In stark contrast with the situation in the Morris case, in the present case Judge McCullough heard a full presentation of evidence on both sides upon both the merits of the case generally and the issue of insanity specifically. His verdict was clear that the appellant “was guilty of the crime of rape, but was insane at the time of the commission of the crime.” Under the circumstances, we do not find Morris to be controlling.

Appeal dismissed; costs to be paid by appellant.


text:
    MABLE DARCEL LOVELESS v. STATE OF MARYLAND
    [No. 992,
    September Term, 1977.]

      Decided June 12, 1978.

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

      William A. Franch and Ronald H Jarashow, with whom were Joseph P. Manck and Goldsborough, Franch & Collett on the brief, for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Warren B. Duckett, Jr., State's Attorney for Anne Arundel County, and David Guttler, Assistant State's Attorney for Anne Arundel County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This case should not be here. It illustrates for the ten thousandth time what happens when everyone overreacts. It typifies the painful procedural hangover that follows initial excess as even the law must ask in the cold light of the morning after, “What do we do now?” In the most basic of terms, a criminal trial was prematurely aborted when everyone pressed the panic button because somebody said a bad word in a courtroom. Upon this grist, the appellate mills may now grind for a season or two.

The appellant, Mable Darcel Loveless, now claims that her impending trial in the Circuit Court for Anne Arundel County for murder and related offenses will place her for a second time in jeopardy in violation of her constitutional rights guaranteed by the Fifth and Fourteenth Amendments. Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969). This particular procedural history will flow more clearly if we begin in the present and move backward.

This appeal is from the ruling of Judge E. Mackall Childs in the Circuit Court for Anne Arundel County denying the appellant’s Motion to Dismiss the indictment against her on the grounds of double jeopardy. That motion was made when the State scheduled a retrial in this case for September, 1977. The scheduling of the retrial had followed an earlier mistrial. The appellant first went to trial on these charges on March 8, 1977. Following two days of testimony before a jury, a police officer, in response to a question on cross-examination put by appellant’s counsel, mentioned that a State’s witness had spent a period of time with “the polygraph operator.” Although the jury was carefully screened from observing the scene, legal pandemonium ensued. The appellant moved for a mistrial. The trial judge ultimately granted the motion.

Subject to the narrow limitation yet to be discussed, it is axiomatic that a defendant who has moved for a mistrial waives, by that very motion, all objection to a subsequent retrial. United States v. Tateo, 377 U. S. 463, 467, 84 S. Ct. 1587, 12 L.Ed.2d 448, 452 (1964); United States v. Jorn, 400 U. S. 470, 91 S. Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Dinitz, 424 U. S. 600, 607-608, 96 S. Ct. 1075, 47 L.Ed.2d 267, 273-274 (1976); Cornish v. State, 272 Md. 312, 318, 322 A. 2d 880; Jourdan v. State, 275 Md. 495, 508, 341 A. 2d 388; Baker v. State, 15 Md. App. 73, 289 A. 2d 348; Bartley and Hill v. State, 32 Md. App. 283, 289, 362 A. 2d 101.

There is one limitation on the foreclosing effect of a defense request for a mistrial. If the defense is placed in an untenable situation where it has no choice but to request a mistrial because of prosecutorial or judicial “overreaching,” then the mere fact that the defense requested the mistrial will not operate as a waiver of later double jeopardy claims. A critical distinction is made, however, between deliberate “prosecutorial or judicial overreaching,” on the one hand, and “prosecutorial or judicial error,” on the other hand. Mere error, judicial or prosecutorial, even where it is grievous enough 1) to cause a mistrial or 2) to cause an appellate reversal, will not bar a subsequent retrial.

Except in those rare instances where the prosecution or the court has deliberately sabotaged a trial that was going badly, the available redress where an irremediable error is; recognized in mid-trial is the declaration of a mistrial followed by a retrial; the available redress where a reversible error has occurred in a trial which runs its full course and results in a conviction is a reversal followed by a retrial. For double jeopardy purposes, it makes no difference whether the former jeopardy runs its full course or is aborted before the verdict. The broad reasoning undergirding this policy decision was cogently set forth by Justice Harlan in United States v. Tateo, supra, at 377 U. S. 466, 12 L.Ed.2d 451:

“While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the. reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.”

The only time that retrial is barred under double jeopardy principles is when there has been such prosecutorial or judicial overreaching as to have mounted to a deliberate and intentional sabotaging of the earlier trial. United States v. Jorn, supra, 400 U. S. at 485, 27 L.Ed.2d at 556; United States v. Dinitz, supra, 424 U. S. at 611, 47 L.Ed.2d at 276; Thompson v. State, 38 Md. App. 499, 502, 381 A. 2d 704. See also City of Tucson v. Valencia, 21 Ariz. App. 148, 517 P. 2d 106 (1973); State v. Marquez, 113 Ariz. 540, 558 P. 2d 692, 694-695 (1976); People v. Hathcock, 105 Cal. Rptr. 540, 504 P. 2d 476 (1973).

In the case now before us, we do not perceive prosecutorial error, if any, sufficient even to have caused a mistrial, let alone of such “overreaching” proportions as to bar retrial. The misadventure that brought about the mistrial in this case is regrettable, but at most venial. Indeed, the exaggerated reaction is as difficult to appreciate as is the occurrence of the event reacted to. On the morning of trial, March 8,1977, a chambers conference was called by the judge to take up a number of matters. The first item discussed was the questions to be asked on voir dire. A defense request for a change of venue was then discussed and denied. A defense request for a continuance — intertwined with discovery issues — was discussed and denied. The last item on the agenda was a defense request that the judge order the prosecutor to tell his witnesses not to mention that George Hendricks, a State’s witness, had taken a polygraph test. The judge so ordered. The conference adjourned and everyone moved into the courtroom where the jury selection process began. At the first break, the Deputy State’s Attorney called together his witnesses then present and passed on the admonition about the polygraph test. The State had summoned sixteen witnesses in all. The Deputy State’s Attorney could not later recall whether Detective Staley, who was scheduled to appear on the second day of trial, was present or not. Detective Staley indicated that he had not been present and had not heard the admonition.

On the second day of trial, Detective Staley testified for the State. Nothing untoward happened. Then the cross-examination began. In the course thereof, the following transpired:

“Q. Alright. Now, how long did you have Mr. Hendricks in custody or were you with him?
A. We were with him with the exception of the time he was allowed with his father and the time that he was with our polygraph operator... we were with him from one o’clock in the afternoon, well, we had a problem in the afternoon. After we had interviewed Mr. Hendricks, it was____”

With the uttering of the ineffable word “polygraph,” it was as if a rattlesnake had been tossed into a tea party. A bench conference, a defense motion for mistrial opposed by the State, a recess to consider the circumstances, and the final declaration of a mistrial followed in short order. At the later hearing, now before us for review, Judge Childs acutely observed:

“Frankly, I do not believe that the mere mention of a polygraph could not have been cured by appropriate instructions by the court at that time and the case was permitted to proceed.”

We agree with that assessment by Judge Childs. In both Lusby v. State, 217 Md. 191, 141 A. 2d 893, and Kelly v. State, 16 Md. App. 533, 298 A. 2d 470, key prosecuting witnesses had gone further. They brought out that they had actually taken “lie detector” tests, whereas in this case the reference was simply to the prosecuting witness’s having been with a “polygraph operator.” Moreover, the testimony had been elicited by the State’s Attorney (in Lusby) and by the judge (in Kelly), whereas in this case the testimony was elicited in cross-examination by defense counsel. In both Lusby and Kelly, it was the holding of the Court that the trial judge had not abused his discretion in refusing to declare a mistrial. The damage in each case was assessed as being capable of ready repair by an appropriate admonition to the jury.

In assessing the nature of the mistake which precipitated the declaration of a mistrial in this case, Judge Childs characterized the testimonial breach as, at most, a slip of the tongue. If the Deputy State’s Attorney was in error at all in failing to notify this particular witness of the court’s admonition, the failing was one of simple inadvertence or negligence. Indeed, the defense cross-examination elicited the reference to the tabooed subject. Judge Childs pointed out that the examination dealt with “an area which the court feels that the defense had reason to know [was one where] this sensitive testimony may have come to light.” If we may analogize to the tort field, if the Deputy State’s Attorney here was negligent, the defense was also guilty of contributory negligence (or, perhaps, an assumption of risk). Even assuming such negligence as would necessitate a mistrial, it would still not be an instance of such prosecutorial overreaching as to bar a retrial. Lee v. United States, 432 U. S. 23, 97 S. Ct. 2141, 53 L,Ed.2d 80 (1977); Muller v. State, 478 P. 2d 822, 827 (Alaska, 1971).

In this case, there was a profligate rush to mistrial. The defense overreacted and, in turn, persuaded the trial judge to overreact. In this regard, the defense got more than it deserved. We perceive no prosecutorial error serious enough to have necessitated the mistrial; a fortiori, we see nothing remotely approaching the prosecutorial “overreaching” that would be necessary to engage the gears of the double jeopardy clause and to bar a retrial of this appellant.

Judgment affirmed; costs to be paid by appellant.

      . The mere mention of the word “polygraph” — or, worse yet, “lie detector” — seems to have a more leprous quality in the popular mythology of the trial bar than would be indicated by the tone of the few reported decisions dealing with the subject. There, a greater sense of equanimity prevails, recognizing that a relatively new ana still experimental scientific technicjue has not yet received a sufficient level of “general acceptance” in the scientific community to warrant present admissibility, but that work is being done and the possibility of future utility is not forever foreclosed. It is but a specific instance of the broader evidentiary phenomenon of “Relevance and Its Counterweights.” In Rawlings v. State, 7 Md. App. 611, 256 A. 2d 704, we affirmed the discretionary decision of a trial judge not to admit the results of a polygraph test but nonetheless noted “the assertion of some authorities that advances in the science or art of lie detecting are such as to make the results of lie detector tests, when given under proper conditions, acceptable as evidence. See McCormick, Evidence, § 174; Kaplan, The Lie Detector: An Analysis of Its Place in the Law of Evidence, 10 Wayne Law Review 381; and Pfaff, The Polygraph: An Invaluable Judicial Aid, 50 A.B.A.J. 1130 (1964).”


author: Lowe, J.,

text:
    STATE FARM FIRE AND CASUALTY COMPANY v. BRETHREN MUTUAL INSURANCE CO.
    [No. 1164,
    September Term, 1977.]

      Decided June 12, 1978.

    The cause was argued before Moylan, Lowe and Wilner, JJ.

      Boland C. Kent, with whom were Kent, Ogletree & Thornton on the brief, for appellant.

      V. Timothy Bambrick, with whom were George M.

      Radcliffe and Niles, Barton & Wilmer on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

This case involves the interests in insurance proceeds of two disinterested parties of interest. The interested parties of interest, as well as the disinterested parties of interest, agree on whose ultimate interest must be protected, but all are interested in the source from which that interest must be satisfied. Paraphrasing Dorothy Parker, it is not always the tragedies that come to court, it is the messes as well.

On June 27, 1975, Harry E. and Barbara Anne Conrad purchased a home from William D. Perryman and Dennis R. Conner, who in turn took back a mortgage containing a covenant by the mortgagors (Conrads) to insure the property and cause the policy to be endorsed so as to protect the interests of the mortgagees (Perryman and Conner).

The stipulated facts show no insurance was obtained by anyone until one of the mortgagees was bound by a $30,000 fire insurance binder on January 1, 1976, issued by State Farm Fire and Casualty Company who is the appellant here.

On March 11, 1976, Brethren Mutual Insurance Co. (the appellee here) issued a $50,000 fire policy containing an apportionment clause to the owners-mortgagors (Conrads). On July 24, 1976, the property was damaged by fire.

Two days later, July 26, 1976, Brethren Mutual added an endorsement to its policy adding the mortgagees as insureds retroactively to the policy date of issuance.

Declaratory judgment was sought by Brethren to determine whether each insuror was liable only for a portion of the loss under their respective pro rata liability clauses, and who was entitled to the proceeds. A plethora of pleadings ensued, among which was the defense of State Farm in the form of a motion for summary judgment contending, among other things, that: it had no insurance in effect covering anyone since the policy had been cancelled in May of 1976; and, if State Farm was obligated at all, it was to the co-mortgagee Perryman only, since he was the only named insured on the binder.

“What Brethren may be obligated to pay to its insureds, the Conrads, is a matter which does not involve State Farm. What State Farm may become obligated to pay to Perryman does not involve Brethren. There is no legal basis for any claim by Brethren against State Farm, and there does not even appear to be an allegation to that effect by Brethren. Accordingly, State Farm should not be a party to this suit by Brethren.”

At some point, however, State Farm reevaluated its position and, for purposes of this case, stipulated, among other things, that apparently it had not effectively cancelled this binder; and, since the insured Perryman contended that he had intended to have Conner covered also, State Farm agreed not only to honor that intention, but to back-date its binder to December 18, 1975. State Farm also stipulated to the contents of the policy it would have issued — which policy also contained an apportionment clause.

In spite of such stipulated concessions necessarily placing itself in the posture of a party in interest, State Farm contradictorily contends that:

“THE TRIAL COURT ERRED WHEN IT UNDERTOOK TO DECIDE THE OBLIGATIONS OF STATE FARM, ALTHOUGH THE PETITION SET FORTH NO CLAIM BY THE PLAINTIFF AGAINST THE DEFENDANT STATE FARM.”

Contrary to appellant's assertions, this argument does not question that the controversy is justiciable in a declaratory judgment proceeding, as defined in Patuxent Co. v. Commissioners, 212 Md. 543, 548; Lucas v. Merc.-Safe Dep. & Tr. Co., 29 Md. App. 633, 644, cert. denied, 277 Md. 738; rather, it carries the same thread as that undergirding appellant’s second contention:

“AN INSUROR CANNOT LIMIT ITS LIABILITY AND INCREASE THE ULTIMATE LIABILITY OF ANOTHER INSUROR BY AMENDING ITS POLICY AFTER THE OCCURRENCE OF THE LOSS FROM WHICH THE LIABILITY ARISES.”

At the root of the entire controversy, of course, are the apportionment clauses of the two insurance companies. Brethren concedes that the pro rata clauses are inapplicable if there is no identity of interest, Newark Fire Ins. Co. v. Twohy, 6 F. 2d 533, and see 44 Am. Jur. 2d Insurance §§ 1807-1809, but argues that such an identity of insureds arises from State Farm’s stipulated concession that it insured the mortgagees, in conjunction with Brethren’s obligation directly to the mortgagees by its “nunc pro tunc” endorsement, as well as its less direct, but related, duty incurred by virtue of its equitably imposed obligation arising from the covenant to insure contained in the mortgage. Recognizing that the Court of Appeals has given the mortgagee as

“... the intended beneficiary of the insurance contract a right to enforce the same,” Farmers’ Fire Ins. Co. v. Baker, 94 Md. 545, 563;

see also Giddings v. Seevers, 24 Md. 363, the latter obligation is said to have arisen by virtue of the fact that the owner-mortgagor policy should have been endorsed to cover the mortgagees’ interest pursuant to the covenant.

Because of its assumed obligation to the mortgagees, Brethren views its post factum endorsement as “merely formalizing the legal relationship which existed” between it and the mortgagees. Since both State Farm and Brethren insured the mortgagees, and both companies were obligated to pay both mortgagees, appellee argues, the requisite identity of interest existed and the pro rata clauses in both policies became operative making each insurer liable for its proportionate amount.

“Since each policy has a pro rata clause, which is permitted by the law, and since Phillips was covered by each policy, and the contract which each insurance company made was to pay its proportionate part of any loss which was suffered, it is difficult to see why the usual rule should not be applied and each company be required to pay its proportionate part of the judgments. That is the rule adopted by this court in fire insurance cases, based not upon the nature of the insurance, but upon the contract which the companies made.” Celina Mutual v. Citizens Casualty, 194 Md. 236, 243.

State Farm, on the other hand, concedes (despite Brethren's resistance) that it is obligated to the mortgagees for the entire loss. It further implicitly concedes that as between Brethren and its initial insureds, the owners-mortgagors, Brethren may amend its contract after the fact if its insureds agree. Indeed, State Farm concedes implicitly, Brethren may very well be legally obligated to pay the mortgagees by virtue of the covenant in the mortgage as pointed out by the trial judge, quoting from Farmers' Fire Ins. Co. v. Baker, supra, 94 Md. at 563:

“But here it is made perfectly manifest from the proofs in the cause that the policy in this case was procured to be issued by the assured and to be entered as payable to ‘the mortgagee’ in pursuance of his covenant to that effect in the mortgage which he executed to the appellee, and set out in the proceedings; and that ‘the mortgagee’ intended was the appellee. And with such proof the fact that the entry in question was made a few days after the date of the policy, in connection with the fact, also in proof, that it had the sanction of the appellant company, and that the mortgagee was not specifically named must be regarded in a Court of equity as no sufficient ground for denying to the intended beneficiary of the insurance contract a right to enforce the same.”

However, that legal obligation does not provide an identity of insureds which would bring into play the proportionate liability clauses; nor can Brethren retroactively effect State Farm’s rights by its post factum amendment on a contract with parties unrelated to State Farm.

The hassle evolves from the fact that the contracts for insurance against fire are indemnity contracts and the insureds are entitled to receive only the sum necessary to indemnify them, but no more, Glens Falls Ins. Co. v. Sterling, 219 Md. 217. If Brethren’s policy to the mortgagors was not endorsed payable to the mortgagees, the mortgagors could recover the entire amount of the loss, which loss was less than the policy limits. The mortgagees, in turn, had the right to insure their debt and were contractually entitled to recover that debt which did not exceed its policy limits. The mortgagees’ insurance carrier (here State Farm) would then be subrogated to the rights of the mortgagees, and could recover the debt from the mortgagors, who had contractually agreed to assume the burden of insuring against the risk. Frontier Mtge. Corp. v. Heft, 146 Md. 1, 13. In the case before us, that would mean that Brethren would shoulder the entire loss.

If, however, Brethren is considered a coinsurer of the mortgagees, either by their belated amendment so stating, or by virtue of the mortgagees’ derivative right to the proceeds (to the extent of their debt), Farmers’ Fire Ins. Co. v. Baker, supra, State Farm will have to share proportionately the loss to the extent of its coverage.

It is apparent to this Court that at the time of the fire there was no identity of interest that caused the apportionment clauses to come into effect, let alone there having been any similarity of insured parties. The mortgagors’ insurance contract admittedly does not name the mortgagees as beneficiaries, and the mere assertions of appellees as to what was intended is insufficient to overcome the presumption, to which this Court is bound, that a contract means what it says, and no more. Frontier Mtge. Corp. v. Heft, supra, at 13. Brethren appears to have assumed that the mortgagees could prove mistake were they to institute an action against Brethren and, on the basis of this unproved assumption, Brethren rests its argument. However, the evidence actually in the record indicates simply that the mortgagors-owners had insured the property and that the mortgagees had insured their debt. Frontier Mtge. Corp. v. Heft, supra, 146 Md. at 13. Thus, whatever rights the mortgagees had to the mortgagors’ insurance proceeds (from Brethren) were derivative, and they were entitled only to receive what may be found to be due the mortgagors. Rent-A-Car Co. v. Fire Ins. Co., 158 Md. 169, 175-176. The mortgagees, however, are contractually entitled to recover from their own insurer since the contracts are entirely separate and independent of each other. Cf. Hanover Fire Ins. Co. v. Brown, 77 Md. 64, 73.

Nor can Brethren and its insured contractually agree after the fire, to amend their contract so as to impose a liability upon a third party who was neither directly nor indirectly privy to that contract. It matters not whether the post factum amendment was avariciously added by Brethren to limit its liability or whether, as the trial judge determined:

“this amendment was [nothing] more than a commendable and honest effort on the part of a good little insurance company to correct its agent’s mistake including coverage to the mortgagees as intended.”

Brethren may indeed voluntarily bestow additional benefits to its insureds, or, with their insureds’ consent, share their benefits with another or perform their insureds’ covenanted obligations. But Brethren is not entitled to do so with State Farm’s funds, with or without the Conrads’ consent. Normally a person cannot be made liable under a contract to which he is not a party, cf. Snider Bros., Inc. v. Heft, 271 Md. 409, 414, and though he may subsequently bind himself by accepting or adopting it, the facts here do not indicate such acceptance. That appellant finally chose to hold its protective umbrella over both mortgagees when the storm broke, does not entitle the mortgagors’ insurer to employ that same sheltering device. It was Brethren who agreed to shield the mortgagors, and because Brethren is obliged to protect them, that same shield is derivatively available to the mortgagees by covenant.

Recognizing that repairs may have been effected during the pendency of this appeal, we will remand this case for the trial judge to fashion a decree in conformity with this opinion. Before doing so, he is free to hear additional evidence or receive stipulations of fact bearing upon the outcome as he may, in his discretion, deem justified. See Cottman Co. v. Trust Co., supra.

Judgment reversed.

Case remanded for revision of decree in conformity with this opinion.

Costs to be paid by the appellee.

      . “Pro rata liability. This company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.”

      . “G. APPORTIONMENT: This company shall not be liable for a greater proportion of any loss less the amount of deductible, if any, from any peril or perils insured against in this form than (1) the amount of insurance under this policy bears to the whole amount of fire insurance covering the property or which would have covered the property except for the existence of this insurance, whether collectible or not, and whether or not such other fire insurance insures against the additional peril or perils insured hereunder, nor (2) for a greater proportion of any loss less the amount of deductible, if any, than the amount insured bears to all insurance whether collectible or not, covering in any manner such loss, or which would have covered such loss except for the existence of this insurance;____The liability of this company (under this form) for such joint loss shall be limited to its proportionate part of the same aggregate limit of this and all other insurance of the same type.”

      . The post act Brethren amendment was considered by the trial judge as having a “nunc pro tunc” effect:
      “(a) Brethren Mutual’s original policy to the Conrads (the owners and mortgagors of the dwelling house) was amended by Brethren Mutual two days after the fire to correct the mistake of its agent in omitting the mortgagee clause from the original policy. It was specifically made retroactive to the date when the original policy was issued ‘effective March 11, 1976’, which was prior to the fire. In our view this had the same effect as a ‘nunc pro tunc’ order of a Court. There is nothing in the case to suggest that this amendment was anything more than a commendable and honest effort on the part of a good little insurance company to correct its agent’s mistake in not originally including coverage to the mortgagees as intended. We believe this amendment had the legal effect of insuring the mortgagees from the inception of the policy.”

      . We do not here decide whether the mortgagees, if they had in fact been the intended beneficiaries of the mortgagors’ contract with Brethren, would have had any vested rights to the insurance proceeds. Although the precise issue has not been addressed in Maryland, the weight of authority seems to be that there must be some evidence of the creditor-beneficiary's acceptance or affirmance of the contract before it is enforceable by him. See 17A CJS Contracts § 519.

      . If the damage is repaired by the mortgagors, however, the mortgagees’ interest in maintaining equilibrium of their debt and security is again in balance. Since the mortgagees would not be entitled to recover from the mortgagors, Cottman Co. v. Trust Co., 169 Md. 595, it would seem to follow that the mortgagees’ debt need not be paid by the insurer since their security is intact, and consequently no subrogees’ rights would arise. Because of the limited factual stipulations we know not the status of the damage or its state of repair.

      . It was stipulated that Brethren’s coverage was for $50,000 and State Farm’s $30,000. The total loss was $8,818.14 and the trial court decided:
      “3. That under the pro-rata or apportionment clauses in said policies of fire insurance on the subject dwelling house, the Brethren Mutual Insurance Company shall pay 5/8ths of the total loss of $8,818.14, and State Farm Fire & Casualty Company shall pay 3/8ths of the total loss of $8,818.14, to the mortgagees ana defendants herein, William O. Perryman and Dennis R. Conner.”

      . Appellant points out in its brief that the stipulated facts do not justify the court’s conclusion:
      “Not only was there no evidence that Brethren is ‘good’ or ‘little’, but, more importantly, there was no evidence that Brethren’s agent had erred or that there was an original intent to insure the mortgagees. On the contrary, the Affidavit of Brethren’s agent Hogans, filed by Brethren, sets forth that ‘it was not known until July 26, 1976, two days after a fire caused by lightning that a Mortgage on the above-mentioned property was held by William D. Perryman and Dennis R. O’Connor [sic].”