author: Lowe, J.,

text:
    POTOMAC ELECTRIC POWER COMPANY v. LESTER F. LYTLE et al.
    [No. 233,
    September Term, 1974.]

      Decided November 22, 1974.

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

      ThomasF. Mudd for appellant.

      Marvin H. Schein for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Around the turn of the century William Arthur Dunkerley said that “To every man there openeth a way, and ways and a way. . . .” Over sixty years later the Potomac Electric Power Company (Pepeo) said to Lester, Paul and Margaret Lytle that the way to their property, used for more than half century, was no longer open to them. Pepco’s action left the Lytles with no access to their retreat on the Paskahansa Creek, except by water.

Appellees Lester F., Paul E. and Margaret Lytle are the owners as tenants in common of a one-half interest in a three acre point of land, known as “Jones Point,” which protrudes into Paskahansa Creek. Their interest was derived in 19-57 from Noah Lytle who was the father-in-law of Margaret and the father of Lester and Paul. Noah Lytle had acquired the property as a tenant in common with a “Mr. Menguel.”

The property is improved by a house and, with the exception of the riparian boundaries, is surrounded by a four hundred and fifty-three acre farm. Since at least 1919, ingress and egress from the nearest public way (which is now Route #301) to the dominant “Jones Point” was over a dirt or gravel road crossing the servient farm then owned by John Matthews, known as “Laidloes Ferry” (more recently renamed “Rosedale”). No difficulties ever arose regarding that use for at least fifty-five years, during which Lester and Paul Lytle remembered regularly using the road. In their youth, on nearly every weekend they were taken to “Jones Point” by their parents, and after their maturity they reciprocated by taking their parents, or they journeyed alone. Until approximately five years ago, these trips occurred every year throughout “[p]ractically the entire year, off and on, one or the other of us, either hunting, fishing or vacationing,” would traverse the right-of-way to the bucolic sanctuary. The appellees with or on behalf of their father maintained the right-of-way to the point. There occurred one incident when Mr. Matthews who then owned the Laidloes Ferry farm “. . . tore it [the right-of-way] up hauling crops in. He repaired it, apologized, and repaired the road.”

In 1957 appellant Pepeo, as an undisclosed principal, purchased the “Laidloes Ferry” farm. Sometime soon thereafter it also acquired the one-half interest in “Jones Point” from Mr. Menguel.

In 1963 Pepeo sought to barricade the right-of-way with a chain. Lester Lytle “sawed the lock off” and “continued to use it [the right-of-way] clean up to about five years ago.” The erection of a chain link fence at that time foreclosed any further use of the access road. With the exception of one entry, made through another road built by Pepeo, the Lytles have been reduced to occasional visits to their property by boat. During the interim their boats and furniture have been stolen and their home has deteriorated.

Appellees’ sought to enjoin Pepeo from obstructing their right-of-way. The case was heard by the Honorable Joseph A. Mattingly presiding as Chancellor in the Circuit Court for Charles County. Judge Mattingly found:

“. . . that this piece of land down there had a right-of-way to it and the right-of-way came out through Pepco’s property and Pepeo can’t come in here and deny a right-of-way to that property nor depress the value of this property.
Now Pepeo has had some fifteen years, as has been pointed out by counsel, has had fifteen years in which to file a petition [partition] proceeding, to file a condemnation proceeding, and has done neither.
And the Court feels that it certainly would be a grave injustice to the Plaintiffs here to deny them that they have a right to this property in there and deny them this right naturally would depress the value of the land to a great extent.”

After reviewing the record we agree with the Chancellor that appellees met their burden of proving “an adverse, exclusive and uninterrupted use of the way for twenty years.” Zehner v. Fink, 19 Md. App. 338, citing Condry v. Laurie, 184 Md. 317.

Burden of Proof

Appellant questions the specificity of description of the way in question, and argues that the appellees failed to meet their burden by omitting “center line descriptions or metes and bounds references to the boundaries thereof. . . .” Having never questioned the physical presence or location of the right-of-way at the trial below, the issue is not before us. Md. Rule 1085. Even assuming the necessary foundation, however, we find the way adequately described.

Appellees introduced three plats all of which had the way clearly marked upon them. One was the tax assessor’s record [Planimetric Manuscript T-10915], one was a survey plat of the farm prepared by a registered surveyor in 1957 (apparently pursuant to Pepco’s purchase) and the third was a plat prepared for Pepeo pursuant to a proposed “Dolphins and Barge Unloading Dock in The Potomac River.” These plats clearly indicate the existence of the way. Appellees are not required to introduce a precise metes and bounds description of the way, as long as its location is ascertainable. The way was shown with considerable precision on the plats. On one plat, a portion even showed locations and directions marked by surveyor’s stakes as well as metes and bounds descriptions. That the remainder was drawn by the surveyor without the metes and bounds set forth does not mean it lacked the specificity necessary to determine its location.

Appellant’s further argument that appellees failed to submit sufficient proof, focused upon an alleged discrepancy between the Lytle brothers’ testimony as to where each left the public road to enter upon the way which crossed the servient farm. The plat markings indicated the way was Y-shaped with the base terminating at Jones Point, and each prong of the fork intersecting Route #301. On cross-examination Paul marked a different point of ingress than had Lester; however, the record shows that the matter was clarified on redirect when Paul’s recollection was refreshed and he recalled that upon entering the premises they had:

“. . . passed ... to the, actually it would be to the north of [the cemetery].
Q. Now, do you find the cemetery on this map?
A. Yes, here is the cemetery.
Q. Does that line up the way you recall it?
The cemetery would be to the right of the —
A. To the left of the road, well, to the right of the road as you come in.”

Appellant relies on nothing else for its argument that plat references without markings made the testimony utterly incomprehensible on review.

As Judge Thompson stated in Zehner, supra, “While the testimony is not as clear as desirable, it is sufficient for us to decide the issues as presented.” Id. at 339. When we consider that memories of events occurring on land as much as fifty years ago were being tested by use of maps and plats, we find the evidence reasonably clear — certainly not “utterly incomprehensible” as described by appellant.

The Presumption of Adverse Use

Having found that appellees met their responsibility by proving all the necessary elements of prescription, we need hardly note that in doing so they proved inter alia that they had “. . . used a roadway over the land of another openly and continuously and without objection for twenty years.” By doing so, a presumption of adverse use under claim of right arose in their favor. Zehner, 19 Md. App. at 344. This presumption of adverse use is rebuttable by evidence of permission or license inconsistent with a claim of right. Wilson v. Waters, 192 Md. 221, 227. That it rebutted that presumption is projected as appellant’s second contention, a contention with which we do not agree.

Louise Matthews, daughter of John Matthews, the former owner of Laidloes Ferry, deposed before trial that she knew of no arrangements made between her father and Mr. Lytle relative to the use of the road. However, she did say that:

“They have discussed it lots of times and laughed about it, and he [John Matthews] said, ‘You can always come through my property.’ He was very fond of him, [Noah Lytle] and he never expected to pass on at that time, and I don’t imagine Mr. Lytle did, and it was a verbal understanding that he was to be able to come through the property always.”

Appellant complains that the Chancellor stated that in determining whether the reference to a “verbal understanding” meant permission or an expressed understanding of Mr. Lytle’s right to use the way, the testimony should be viewed “in light most favorable to the Plaintiff.” Though not technically correct, the result thus obtained is not dissimilar to that achieved with the proper interpretive standard. Since appellant now had the burden of proving permissive use, the Chancellor’s statement merely indicated that he would favor appellee unless persuaded contrarily by appellant’s affirmative showing. Although Miss Matthews’ statement might have allowed an inference of permissive use, the Chancellor evidently thought that mere “possibility” inadequate to overcome the presumption of adverse use. This testimony might as easily have been reflective of a prior undertaking by the owner of the farm to confer upon Mr. Lytle a perpetual right of use in the way. Although unenforceable under the Statute of Frauds, Mr. Lytle’s assumption of irrevocability and use of the way thereafter would have been indicative of a claim of right, and thus adverse to Matthews and his successors in interest. “An oral permission, believed to be irrevocable but unenforceable by reason of the Statute of Frauds, may evidence a claim of right and indicate that user was adverse and not permissive.” Lichtenberg v. Sachs, 200 Md. 145, 154. Tiffany, Real Property, § 1196, p. 562 (3d ed.). Other testimony of the same witness supports the view that there was no oral permission granted.

“Q So if, in fact, Mr. Lytle did use that road, he used it without your permission; is that correct?
A Which road?
Q The dotted line from Route 301.
A He may have. I’m quite sure father wouldn’t have objected.
Q Do you recall whether or not your father gave him explicit permission to use that road?
A No, because I don’t remember his coming through there, especially. I remember distinctly when he came from here (indicating), from the Newburg road, and his family.
Q Did you ever give him permission?
A I never felt that I had to.
Q Since 1951, when you were responsible for management of the property —
A I never felt that I had to.
Q — as far as you were concerned, it was all right for him —
A Yes.
Q You never explicitly gave him permission?
A No.
Q But you did know he used it?
A Yes.
Q As far as you know, he used it back to the time when it was originally built?
A You mean until 301 was built?
Q Until you sold the property to PEPCO.
A I’m quite sure he did.”

Appellant, having offered no more than testimony amenable to competing inferences, did not meet its burden of clearly convincing the Chancellor that the use of the way was inconsistent with a claim of right.

Laches

Appellant’s final argument is that appellees were guilty of laches and having “slept upon their rights must be remitted to the repose from which they should not have been aroused.” Ripple v. Kuehne, 100 Md. 672, 677. The short answer to this is found in uncontradicted testimony at trial.

Pepeo purchased its farm in 1957 and the tenancy in common with the Lytles soon thereafter. It has been negotiating with the Lytles “off and on” since that time, attempting to obtain their interest in “Jones Point.” Mr. Alvin Turner, “the principal real estate representative” of Pepeo testified:

“Q. You have been negotiating with them since 1957?
A. Off and on, yes. Them and their attorney, right.
Q. Is it true that you were attempting to locate similar waterfront property to try to locate a switch with them?
A. We made this offer to Messrs. Lytle, Mr. Lytle said he wanted a place back in the woods where it was quiet, similar to what he said he had now and we said if we could find something for them, so I contacted all the local real estate brokers and one day he came down and we looked at, I don’t know, four or five pieces, as recently as I guess in the last few months, that you are aware of, he has also looked at some other property that some local brokers have had, but nothing has suited him.”

Mr. Lester Lytle’s testimony also acknowledged the negotiations: '

“Q. When and how frequently did you meet with him and for what purpose?
A. I met with him one time when he wanted to borrow the property, another time on, several times he was to acquire us a comparative piece of property, which he never came up with, he wanted us to look for something and then tell him what it was and he being in the real estate line, we referred it to him, to do the bird dogging and he came up with, oh, I would say four or five pieces of what I would call junk land tip until recently, showed us a piece on Nanjemoy Cr,eek, but all he had showed us prior to that was nothing but junk.
Q. Over what period of time was that?
A. That was over the last five years, since the fence run up.”

Thus, the five year period of negotiations coincides with the five year period following Pepco’s erection of a fence foreclosing access. Prior to that time the appellees continued to assert their rights to the point of cutting the lock on the chain gate erected by Pepeo.

In any case, it is difficult to see how laches could apply to failure to assert a prescriptive right for a period less than that necessary to acquire it. The easement was perfected only after the twenty year prescriptive period and could have been “abandoned” by non-use only after an equal period, Allori v. Dinenna, 188 Md. 1, 4. The doctrine of abandonment applicable to rights-of-way, would appear a more appropriate guide to what constitutes laches in these cases than the three year limitation period appellant suggests. Using similar reasoning-by-analogy, the Court of Appeals compared an equitable lien obtained .as owelty on a purpart to a mortgage lien in determining that a lapse of twenty years was necessary to raise the presumption that such lien had been satisfied. Balto. and Ohio R.R. Co. v. Trimble, 51 Md. 99.

Finally, the Court of Appeals has held that prejudice or injury to the party asserting laches is an essential element. Simpers v. Clark, 239 Md. 395, 403. The record is barren of any attempt to show prejudice or injury as a result of the alleged delay. Stretching as far as possible to find any evidence construable as prejudice, the appellant points only to testimony elicited to provide the reasons why Pepeo sought the common interest they acquired in the 3 acre “Jones Point” and presumably why they sought appellees’ interest:

“Well, we have constructed an electric generating station on this large portion of property, and the security necessary around one of these generating stations, I think is obvious. The power generated at this station is used by the Capital of the United States and the reliability of this power to the Capital of the United States is a very significant part.
The property is fenced, and we have a guard force that controls access, even, most of our own employees are not permitted on this property without a special pass, unless they are employed at that facility or are there for a special purpose, so the purpose of acquiring this was to have the entire property that lay between Paskahansa Creek and the highway.”

In its latest attempt to congeal the mercurial doctrine of laches, the Court of Appeals, through Judge O’Donnell, specially assigned from the Supreme Bench of Baltimore in the case of Salisbury Beauty Schools v. State Board, 268 Md. 32, 63 said:

“As was held in Lipsitz v. Parr, 164 Md. 222, 164 A. 743 (1933), laches is an inexcusable delay, without necessary reference to duration, in the assertion of a right, and, unless mounting to the statutory period of limitations, mere delay is not sufficient to constitute laches, if the delay has not worked a disadvantage to another. See Bradford v. Futrell, 225 Md. 512, 525, 171 A. 2d 493, 500 (1961). ‘ The doctrine of laches is an application of the general principles of estoppel.’ Oak Lawn Cemetery v. Baltimore County, 174 Md. 280, 291, 198 A. 600, 605 (1938), citing Pomeroy’s Eq. Juris. Vol. 4, § 1440. See also Boehm v. Boehm, 182 Md. 254, 269, 34 A. 2d 447, 454 (1943). Prejudice or injury to the party raising ‘laches’ is an essential element. Simpers v. Clark, 239 Md. 395, 403, 211 A. 2d 753, 757 (1965). So long as the position of the parties is not changed and there is no prejudice from the delay laches are inapplicable. Oak Lawn Cemetery v. Baltimore County, supra.”

Appellant has provided us neither indicia of prejudice nor justification for denying appellees the access to their property which they had used for over half century.

Judgment affirmed.

Costs to be paid by appellant.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    THURMAN ALEXANDER MOORE v. STATE OF MARYLAND
    [No. 247,
    September Term, 1974.]

      Decided November 22, 1974.

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

      Richard B. Talkin for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Richard J. Kinlein, State’s Attorney for Howard County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

A jury in the Circuit Court for Anne Arundel County, presided over by. Judge Matthew S. Evans, convicted Thurman Alexander Moore of rape (Md. Ann. Code art. 27, § 461) and kidnapping of a child under the age of sixteen years (Md. Ann. Code art. 27, § 338).

Briefly stated, the factual situation out of which the appellant’s convictions arose began at approximately 5 P.M. on April 30, 1973. At that time the prosecutrix, then age eleven, was riding her bicycle in Clarksville, Howard County, en route to her girlfriend’s house. Moore stopped the automobile that he was operating and asked the young victim for directions to Ellicott City. After she had told him the route, he suggested that she get into the car and show him the way, and that he would then return her to Clarksville. When she demurred on the ground that she was not allowed to enter motor vehicles of strange persons, Moore told her to get into the car or he would “slit her throat”. The prosecutrix entered the vehicle and was driven to the vicinity of an abandoned farmhouse located off of a dirt road. The prosecutrix and Moore exited the car, and she walked in front of him toward some bushes. Michael H. Schultheis and his girlfriend, who were looking for property in Howard County, happened to be at the location where Moore parked his car. When Moore and the prosecutrix walked past Schultheis’s car, Moore “sort of waved” at Schultheis, and the prosecutrix looked “scared”. Schultheis’s attention was focused on Moore and' the girl because Moore is a six foot tall black man and the prosecutrix a small, eleven-year old white child. After Moore and the prosecutrix had disappeared into the bushes, Schultheis sent his girlfriend to seek the police, and he flagged a truck and explained what he suspected. The driver of the truck parked in such a manner as to block egress of Moore’s vehicle. The police arrived as Moore and the prosecutrix were exiting the bushes. In response to a policeman’s question to the prosecutrix as to whether everything was all right, she said “No”, and related to the officer that she had been ravished.

I.

Appellant argues that:

“The evidence produced was not sufficient to support a finding of guilt under Article 27, Section 338 of the Annotated Code of Maryland and the lower court was in error when it failed to grant appellant’s motion for a judgment of acquittal as to the charge of kidnapping and when it improperly instructed the jury as to the nature of the kidnapping charge.”

A short history of the Maryland kidnapping law is necessary to a decision on this contention. IV W. Blackstone, Commentaries, * 219 states:

“ . . . [K]id7iapping, being the forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another, was capital by the Jewish law; — ‘He that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death.’ So, likewise, in the civil law the offense of spiriting away and stealing men and children, which was called plagium and the offenders plagiarii, was punished with death. This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; therefore the common law of England has punished it with fine, imprisonment, and pillory.” (Footnotes omitted).

Article 5 of the Maryland Declaration of Rights (1867) provides that the “[inhabitants of Maryland are entitled to the Common Law of England” as it existed on July 4, 1776 whenever the common law has not been revised, amended, or repealed by the legislature.

The first alteration in the common law definition of kidnapping occurred as the result of the enactment of ch. 138, § 4 [1809] Laws of Maryland. That law provided:

“10th. Every person, his or her counsellors, aiders or abettors, who shall be duly convicted of the crime of kidnapping, and forcibly or fraudulently carrying, or causing to be carried out of this state, any free person, or any person entitled to freedom at or after a certain age, period or contingency, or of arresting and imprisoning any free person, or any person entitled to freedom at or after a certain age, period or contingency, knowing such person to be free, or entitled to their freedom, as aforesaid, with intent to have such person carried out of this state, shall be sentenced to undergo a confinement in the . . . penitentiary . . . for . . . not less than two nor more than ten years. ...”

Subsequent changes thereafter occurred. Section 337 as it appeared at the time of the offense provided:

“Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person, except in the case of a minor, by a parent thereof, with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony and shall be sentenced to death or to the penitentiary for not more than thirty years, in the discretion of the court.”

In 1819 the legislature enacted a special statute relative to children under the age of sixteen years. At that time the General Assembly passed ch. 132, entitled “An Act to punish the offense of Kidnapping White Children”. The statute provided:

“Be it, enacted, by the General Assembly of Maryland, That every person, his or her counsellors, aiders or abettors, who shall be duly convicted of kidnapping, and forcibly or fraudulently stealing, taking or carrying away, any white child or children under the age of sixteen years, shall be sentenced to undergo a confinement in the penitentiary for a period of time not less than five years, nor more than twelve years, there to be treated as the law directs.”

The racial aspect of the statute was deleted in 1888 so that the law proscribed the “taking or carrying away”, by means of force or fraud, any child.

Thereafter, the statute underwent a series of amendments which dealt with the prescribed penalty only. Laws 1935, ch. 284, added the death penalty for violation thereof.

Md. Ann. Code art. 27, § 338, the present successor to Laws 1819, ch. 132, provides:

“Every person, his counsellors, aiders or abettors, who shall be convicted of kidnapping and forcibly or fraudulently stealing, taking or carrying away any child under the age of sixteen years, except by a parent thereof, shall be guilty of a felony and shall be sentenced to death or to the penitentiary for not more than thirty years, in the discretion of the court.”

Because § 338 does not contain the language found in § 337, viz., “carrying or causing to be carried out of or within this State,” appellant postulates that the common law, as set forth above, in IV W. Blackstone, Commentaries * 219, has not been changed, and that insofar as the kidnapping of a child under the age of sixteen is concerned, it is mandatory that the prosecution show that the victim was removed to another country. Moore argues that the failure to include the language “carried out of or within the State”, in § 338, is a legislative oversight requiring reversal of the conviction. We disagree.

When the General Assembly in 18Í9 enacted ch. 132 it certainly was cognizant of its passage of the 1809 modification of common law kidnapping. The 1809 legislative modification changed the requirement that a person be shown to have been removed from the country to a showing that he was “carried out of this state”. Significantly, removal from the State was not an element of the kidnapping of a child if the prosecution was instituted under ch. 132, [1819] Laws of Maryland. A cardinal principle of statutory construction is that if the legislature has “intimated its will, however indirectly, that will should be recognized and obeyed.” Johnson v. United States, 163 F. 30, 32 (C.A.l, 1908). See also Brocker Mfg. v. Mashburn, 17 Md. App. 327, 301 A. 2d 501 (1973). We think that the legislative intent was to create a special statute for the protection of children and to proscribe the forcible or fraudulent taking or carrying away of a child from his or her parent, custodian or guardian regardless of whether the child was asported beyond the territorial confines of Maryland.

Although the legislature subsequently amended § 337 so as to embrace within the crime of kidnapping not only interstate, but intrastate forcible or fraudulent asportation of persons, it was not necessary to amend § 338 in a similar fashion. No amendment to § 338 was needed because the original enactment in 1819 of ch. 132, as we construe it, made it unlawful for anyone in this State to take by force or fraud any child under the age of sixteen years and to transport that child to any place within or without the State. Thus it is not necessary for the State to prove, under § 338, that the child was transported outside the geographical boundaries of Maryland. If the State evidences that the child was taken by force or fraud and then transported, by the accused, such a showing is sufficient to sustain the charge.

Moore further argues that the State did not demonstrate the distance that the victim was transported. The record does reveal, however, that the child was forced by threat of serious bodily harm to enter Moore’s vehicle and was then driven from Clarksville to another location. Appellant’s contention is without merit. “It is the fact of asportation and not the distance which is controlling.” R. Perkins, Criminal Law § 7 at 177 (2d ed. 1953). In State v. Ayres, 198 Kansas 467, 426 P. 2d 21 (1967), the Kansas Court held that a woman who was compelled at the point of a gun to leave her companion’s car and enter the vehicle of an abductor was kidnapped even though the actual distance travelled was eleven feet.

Appellant also declares that § 338 and its ancestors are in derogation of the common law and must be strictly construed. We have so construed it. The purpose of § 338, as set forth above, is transpicuous and “no rule of construction precludes giving a natural meaning” to this legislation. Section 338 must, in the light of its history, be interpreted to effectuate its purpose. Isbrandtsen Co. v. Johnson, 343 U. S. 779, 72 S. Ct. 1011, 96 L.Ed.2d 1294 (1952).

We hold that Judge Evans did not err in refusing to instruct the jury that in order for appellant to be convicted of violating § 338, the State was required to prove that the victim had been “carried out of the country.”

II.

Moore next claims that the kidnapping and rape charges merged. He propounds the view that his act of “transporting the girl [was] for one reason and that was the furtherance of rape or other sexual activity and not for the purpose of kidnapping.” To bolster his argument, Moore relies upon People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965). In that case the court reversed a kidnapping conviction on the ground that the charge merged with a robbery conviction. The victims had been forced at gun point into the accused’s vehicle which was driven aimlessly for twenty-seven blocks. The time consumed by the drive was twenty minutes. During that period the victims were robbed of jewelry and wallet. The Court of Appeals of New York held that the restraint on the victims was an integral part of the robbery. Similar holdings are found in People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 (1967) and People v. King, 26 A.D.2d 832, 273 N.Y.S.2d 925 (1966). This Court, speaking through Judge Thompson in Rice v. State, 9 Md. App. 552, 267 A. 2d 261 (1970), rejected the New York rule on the basis of its conflict with “a majority of the courts, 17 A.L.R.2d 1003 and . . . with the Maryland doctrine of merger . . . ” as set forth in Stewart v. State, 4 Md. App. 565, 569, 244 A. 2d 452 (1968), wherein we said:

“The true test of merger under the modern doctrine is whether one crime necessarily involves the other, viz., when the facts necessary to prove the lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense.”

We decline to depart from our holding in Rice, and we again specifically reject the New York rule.

In the instant case the asportation of the victim, after appellant’s having forced her into the vehicle, established the crime of kidnapping. It was a separate and distinct offense from the rape. The facts necessary to show the kidnapping were not “essential ingredients” of the rape. There was no merger, and the trial judge was correct in denying a requested instruction relative thereto. Hunt v. State, 12 Md. App. 286, 278 A. 2d 637 (1971).

III.

Next, Moore perceives error because Judge Evans “refused to instruct the jury that their function was not that of seeking retribution.”

This alleged error arises as a result of the rebuttal argument to the jury by the State’s Attorney. He said:

“The State of Maryland is everybody . . . you, is everybody . . . [the prosecutrix], and the purpose of the Criminal Law you requested . . . don’t confuse this case with exact retribution, but don’t consider it the protection of the victim, that’s exactly the purpose that we’re here. We live in a civilized society and one of the things that we give up is our right to take personal retribution, and we pass it on to the State, the State being all of us. When the State fails to exact sufficient restitution or retribution and the State fails to protect the victim of a crime, then we all lose faith and confidence in the system of administration of criminal justice.”

No objection was interposed at that time, but after the trial judge had completed his advisory instruction, appellant’s counsel, at the bench, stated:

“ . . . Mr. Kinlein [the State’s Attorney] said in his final argument and I didn’t object because I thought I’d ask the Court for an additional instruction about retribution. I think that the purpose of the jury ought to be explained. It’s not retribution, it’s to find facts.”

The trial judge declined to give an additional instruction on the ground that he had advised the jury that argument of counsel was just that, argument and not evidence. As we read the transcript of the State’s Attorney’s rebuttal argument, we are led to the conclusion that he was articulating the growth of criminal law. He was endeavoring to explain to the jury that when men organized into society they gave up certain things that they had previously reserved for themselves. One of the things that they surrendered to society was the seeking of personal retribution for an act done to the person or his relatives. While we think the argument of the State’s Attorney to be an inarticulate explanation of the historical background of criminal law, and we further think that it would have been better had the trial judge granted the appellant’s request for a clarifying instruction, we, nevertheless, do not perceive in this case reversible error because the judge refused to give that instruction. See Wilhelm v. State, 212 Md. 404, 326 A. 2d 707 (1974) wherein the Court of Appeals declined to upset a conviction on the basis of a prosecutor’s argument that the jury had an opportunity to do something to stop crime. The Court said that it must give due deference to the conclusion reached by the trial judge who “heard the actual remarks — in the context in which they were made, in the trial arena — and who found no prejudice. The alleged improper remark — at best an introduction to a possible invocation of ‘law and order,’ or the commencement of an exhortation unto the jury ‘to do their duty,’ or the inception of an appeal for law enforcement — was but one sentence in the extensive proceedings, singularly made and unrepeated.” We note that Judge Evans advised the jury, “It is your function to decide upon the truth of the testimony as given by the various witnesses .... That is your sole responsibility. . . . ” (Emphasis supplied).

The judge further instructed the jury that its function was that of judge of the fact and law. We observe that the judge’s instructions occurred posteriorly to the argument of counsel, and they elucidated the role of the jury. The instruction made clear to the jury their role in the case. We have no reason to believe that the jury did not heed the trial judge’s instructions, nor that the talesmen disobeyed their oath to “well and truly try and a true deliverance make . . . and a true verdict give according to the evidence.” An accused is entitled to a fair trial, not a perfect one. State v. Babb, 258 Md. 547, 552, 267 A. 2d 190 (1970); Boblits v. State, 7 Md. App. 391, 400, 256 A. 2d 187 (1969).

In the light of the overwhelming testimony of the culpability of the accused as presented in this case, the trial judge’s declination to further instruct the jury, if error, was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967); Folk v. State, 11 Md. App. 508, 275 A. 2d 184 (1971).

IV.

Appellant next contends that the evidence was insufficient to support the conviction of rape.

The victim testified that appellant had lowered her jeans and undergarments below her knees, and that he put his penis in her vagina; she felt it in her. The appellant here, and in the trial court, seems to rely heavily upon the fact that the victim testified that she did not see the penetration occur. We know of no rule of law that requires a rape victim to observe the entry of the male organ into her body. There was also testimony in this case that the young victim’s undergarments exhibited a “dark, reddish color stain on the underpants ... in the vicinity of the crotch region.” Moreover, the victim’s testimony, standing alone, if believed, is sufficient to sustain the conviction. Estep v. State, 14 Md. App. 53, 286 A. 2d 187 (1972); Crenshaw v. State, 13 Md. App. 361, 283 A. 2d 423 (1971); Williams v. State, 11 Md. App. 350, 274 A. 2d 403 (1971); Gunn v. State, 4 Md. App. 379, 243 A. 2d 15 (1968); Lucas v. State, 2 Md. App. 590, 235 A. 2d 780 (1967).

V.

Lastly, appellant argues that the trial court erred when it admitted into evidence, over objection, a knife seized from the appellant’s car.

At the time the appellant was apprehended he was approximately ninety yards from his parked motor vehicle. The vehicle was searched and a knife was found in the glove compartment. The knife, as we have noted, was admitted into evidence over objection. Appellant asserts that the admission of the knife was improper because it was the fruit of an illegal search. Furthermore, appellant says, it cannot be argued that the search was incident to an arrest. Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969); Howell v. State, 271 Md. 378, 318 A. 2d 189 (1974). Officer Freund, of the Howard County Police Department, testified that he discovered the knife in the course of an “inventory” of the contents of the appellant’s motor vehicle, but, on cross-examination, he said that he found the knife while he was “searching” the car. No matter how the officer classified his actions, he was processing the seized vehicle. It is indubitable that the motor vehicle was an instrumentality of the crime of kidnapping. Patently, the vehicle had been used for the asportation of the youthful victim. It was parked near an abandoned house, and it was visible to anyone in the area. There was no contention that the police had trespassed upon real property of appellant. In fact, there is a clear inference that appellant was a trespasser upon property of another, although the identity of that person is not revealed by the record. Knowing that the vehicle had been used in the kidnapping, the police had not only the right to seize it, but the duty to do so on the ground that it was evidence of the kidnapping. Nasiriddin v. State, 16 Md. App. 479, 298 A. 2d 490 (1973).

Once the vehicle was “legally in the hands of the police they had the right to process it to establish the corpus delecti.” Nasiriddin v. State, supra. Just as the Nasiriddin automobile was the “striking vehicle” in a “hit and run” case, so the car in the instant case was the “asporting vehicle”. The police could have examined the car for latent fingerprints of the victim. Although a search of a vehicle under certain circumstances may be constitutionally proscribed, see e.g., Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971) and Howell v. State, supra, such prohibition does not exist where, as here, the vehicle itself is itself an integral part of the crime, viz., the element of “carrying away”.

W. Ringel, Searches & Seizures, Arrests and Confessions § 291.02 at 380 (1972) states:

“Although in Harris v. U.S., 390 US 234 [88 S.Ct. 992, 19 L.Ed.2d 1067 (1968)] the Supreme Court did not reach the issue as to whether a vehicle seized as evidence of or as an instrumentality of a crime may be searched without a warrant, there is authority for such a warrantless search. And this is true even though there is no applicable forfeiture statute. Abrams v. State, 223 Ga. 216, 154 SE2d 443 [(1967)]; State v. McCoy, [249 Or. 160], 437 P.2d 734 [(1968)]; People v. Chapman, 67 Cal. Rptr. 601 [(1968)]. Logic commends such authority.”

J. Cook, Constitutional Rights of the Accused: Pre-Trial Rights, § 61 at 379 (1972) declares that Harris indicates that:

“. . . [I)t is not essential that there be an explicit statutory authorization for the seizure of the vehicle, by virtue of the particular crime for which the suspect is arrested. Where the car itself is evidence of crime, courts are more likely to permit a warrantless search.”

See also cases cited by Cook at 379 n. 18.

The Court of Appeals in Johnson v. State, 238 Md. 528, 209 A. 2d 765 (1965), a rape and kidnapping case, upheld the search of a Cadillac in which the victim was transported. The Court said at 539-40:

“. . . [T]he automobile, according to the information previously given by [the victim] which the officers had reasonable cause to believe was true, had been used as an instrument in the perpetration of the alleged crime; . . . Where there has been a valid arrest, property found in connection with the arrest which tends to establish the commission of the crime charged may be held by the officers for evidence. If the arrest is lawful, the seizure is lawful, if the property is of an evidentiary nature. . . . The automobile itself could have been offered in evidence at the trial. Having lawfully seized it, the police had a right to examine it after the seizure for evidence in connection with the crime.” (Citations omitted). (Emphasis supplied).

The trial court did not err in its ruling relative to the admission of the knife into evidence.

Judgments affirmed.

      . This case originated in Howard County. Following indictment by the grand jury for that county, the case was removed at appellant’s request to Anne Arundel County.

      . See, Md. Ann. Code, 1888, § 154; 1904, § 259; 1912, § 283; 1924, § 316; 1939, § 385; 1951, § 403; and Laws of Maryland, 1809, ch. 138, § 4; 1867, ch. 179; 1910, ch. 46, p. 92; 1933, ch. 589, § 316; 1935, ch. 283, § 316; 1949, ch. 4, § 385.

      . By Laws 1973, ch. 651, § 13, the word “minor” was deleted, and the phrase “person under eighteen years of age” was substituted therefor.

      . Laws of Maryland, art. 27, § 155.

      . See, Md. Ann. Code, 1888, § 155; 1904, § 260; 1912, § 284; 1924, $ 317; 1939, § 386; 1951, § 404; Laws of Maryland, 1819, ch. 132; 1910, ch. 46, p. 92; 1933, ch. 589, § 317; 1935, ch. 283, § 317; 1949, ch. 4, § 386.

      . It would appear that the death penalty was added as a reaction to the Lindberg kidnap-murder case of 1932.

      . Insofar as we have been able to determine, no Maryland ease has construed § 338 because prosecutions are generally brought under § 337. It is difficult to fathom why the State did not charge a violation of § 337 in the instant case.

      . Md. Const, art. 15, § 5.

      . Petit juror’s oath as administered in a criminal cause in the Circuit Court for Anne Arundel County.

      . The victim testified that she had menstruated neither before nor subsequent to the rape. Nor had she injured herself in alighting from her bicycle.

      . Coolidge v. New Hampshire, supra, is distinguishable on its facts. In that case “the police had known for some time of the probable role of the . . . car in the crime. Coolidge was aware that he was a suspect in the . . . murder, but he had been extremely cooperative . . . and there was no indication that he meant to flee. He had already had ample opportunity to destroy any evidence he thought incriminating.” 403 U. S., at 460.

      . In Howell v. State, supra, the search was made on the theory that it was incident to a lawful arrest, Chimel v. California, supra, but the Court of Appeals held that the search was without the ambit of Chimel. Although the Howell vehicle seems to have been the “getaway car”, the arrest did not occur until three days after the crime. Hence, the reasoning of Coolidge would appear to be dispositive.


author: Orth, C. J.,

text:
    CAROL SUSAN SHIPP v. AUTOVILLE LIMITED et al.
    [No. 253,
    September Term, 1974.]

      Decided November 22, 1974.

      The cause was argued before Orth, C. J., and Powers and Davidson, JJ.

      Charles W. Foster for appellant.

      Charles C. Bowie, with whom were Brault, Scott & Brault on the brief, for appellees.
   Orth, C. J.,

delivered the opinion of the Court.

CASE SUMMARY

This is an appeal from a judgment for costs in favor of the defendants in an ex delicto action before a jury in the Circuit Court for Prince George’s County in which Carol Susan Shipp, appellant, sued Autoville Limited and John A. B. Fenwick, appellees, seeking damages for malicious prosecution and false arrest and imprisonment. The judgment was entered upon a directed verdict granted by the court at the close of all the evidence. Maryland Rule 552. We reverse.

PRELIMINARY ISSUE

A preliminary issue for decision is whether the appeal is properly before us. The case was tried on 21 and 22 January 1974. The court reserved a ruling on a motion for a directed verdict made by appellees at the close of evidence offered by appellant. The course of events thereafter is shown by the docket entries'.

“1/22/74 ... At the conclusion of the entire case, Motion for Directed Verdict renewed. Motion granted.
1/22/74 Judgment nisi entered in favor of the Defendant for costs.
1/28/74 Final Judgment entered in favor-of the Defendant for costs.”

On 20 February 1974 appellant filed an order of appeal. She requested the Clerk to enter an appeal to the Court “. . . from the judgment entered in this action on January 22, 1974.” This was not a final judgment. The general rule is that an appeal may be taken only from a final judgment. Courts Art., § 12-301. See Courts Art., §§ 12-302 and 12-303.

It once was that the practice followed in a law case in entering a final judgment upon a jury trial was different from the practice followed in entering a final judgment upon a bench trial. Uniformity was obtained by rule. Maryland Rule 564 b 1 providés: “Where an action at law is tried upon the facts by the court, the court shall direct judgment nisi to be entered upon the law and the evidence.” Rule 567 a prescribes: “A motion for a new trial as to all or part of the matters in controversy shall be filed within three days after .the reception of a verdict, or, in case of a special verdict or a trial by the court within three days after the entry of a judgment nisi.” Rule 567 f declares: “If a motion for a new trial is not made, within the time prescribed by section a of this Rule, the clerk shall enter a final judgment as of course.” The Court of Appeals explained it all in Merlands Club v. Messall, 238 Md. 359, 362:

“This portion [§ b 1] of Rule 564 was amended to its present form in 1957, to make the practice of law in regard to the entry of judgment by the court sitting without a jury the same as the practice of entering judgment upon a verdict of a jury. See Baltimore Luggage Company v. Ligon, 208 Md. 406, 118 A. 2d 665 (1955). Prior to the amendment of Rule 564, an absolute judgment was entered immediately upon the announcement of the court’s ‘verdict’ when sitting without a jury and upon the rendition of special verdicts by a jury, Baltimore Luggage Company v. Ligon, supra. After the amendment, when the facts of the case are tried by the court sitting without a jury, the clerk enters up a judgment nisi, which act is analogous to the entry of a verdict when the facts of the case are tried by a jury. The principal purpose of the entry of a judgment nisi is to enable an aggrieved party to file a motion for a new trial within three days from the rendition of the verdict or judgment nisi.”

So with respect to actions at law it is now well settled that a) when no motion for a new trial has been filed, the judgment absolute is entered at the expiration of 3 days from the entry of the judgment nisi in a court trial and from the rendition of the verdict in a jury trial, and b) when a motion for a new trial has been filed, the judgment absolute is entered upon denial of the motion, whether the trial be by court or jury. It is the “final judgment” from which an appeal may be taken. An appeal lies only from a judgment absolute and not from a judgment nisi. Hawkins v. GMAC, 250 Md. 146, 148. Of course, the time in which the appeal must be filed runs from the entry of the final judgment. Rule 1012.

The Court of Appeals has stated, iterated and reiterated that jurisdiction may not be conferred upon an appellate court in this jurisdiction by consent of the parties. Lang v. Catterton, 267 Md. 268, 275. It has been steadfast in dismissing appeals not taken from a final judgment. It has found its Rule 812, Section a of which is substantially the same as Rule 1012 applicable to this Court, to be mandatory, giving it no alternative but to dismiss the appeal for non-compliance, in the absence of proof of extenuating circumstances. Hawkins v. GMAC, supra, at 148. See Rules 835 and 1035. It has dismissed the appeal where the order was filed after the judgment nisi but before the judgment absolute, Merlands Club v. Messall, supra, Hawkins v. GMAC, supra; after the verdict of the jury but before judgment absolute, even though the clerk should have entered judgment, Aronstamn v. Coffey, 259 Md. 47, Page-Loten v. Howard, et ux., 260 Md. 1; in the absence of both a judgment nisi and absolute, A. & A. Masonry v. Polinger, 259 Md. 199; when there was no final judgment under Rule 605 (Multiple Claims — Judgment Upon) Arteno v. Arteno, 257 Md. 227, Lang v. Catterton, supra. The rationale of the action of the Court of Appeals in dismissing the appeals was that there was no order of appeal entered within 30 days after the entry of a judgment absolute. It is this rationale which saves the appeal in the case before us. Appellant’s order for appeal was filed after the judgment absolute was entered and within 30 days thereof. Although she designated the appeal to be from the judgment nisi, the designation was superfluous. The order of appeal would have been effective had it merely directed the clerk to note an appeal; it would necessarily follow that it be from the final judgment. As the order of appeal here was filed within 30 days of the entry of the judgment absolute, we conclude the appeal is properly before us.

ISSUE

The sole issue on the merits of the appeal is whether the court below erred in directing a verdict for appellees.

Appellant claims that the evidence adduced was sufficient to compel submission of the case to the jury. Appellees argue that it was not, and that they were properly entitled to judgment in their favor as a matter of law.

FACTS

The bare facts are that appellant issued a check payable to Autoville Limited in the amount of $30.20 drawn on her account at the Suburban Trust Company for repairs Autoville had made to her automobile. She later stopped payment on the check, which was returned to Autoville uncollected for that reason. John A. B. Fenwick, Vice President of Autoville, swore out a warrant for her arrest, charging the crime proscribed by Code, Art. 27, § 144 — obtaining something of value by check with intent to stop payment. She was arrested under authority of the warrant. When the case came on for trial, the prosecutor entered a nolle prosequi with the notation “No evidence of criminal intent.” Appellant instituted an action against Autoville and Fenwick for damages arising from the malicious prosecution and false arrest and imprisonment of her. The case terminated at the close of all the evidence in the grant of a motion for a directed verdict in favor of the defendants.

We flesh out this apothegm with an account of the circumstances leading to appellant’s order to stop payment and appellees’ prosecution of her. The prevailing rule of law is that where the court directs in favor of one of the parties, we must assume the truth of all credible evidence in the case tending to sustain the contention of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom. Trionfo v. R. J. Hellman, Inc., 250 Md. 12, 15; Buchanan v. Galliher, 11 Md. App. 83, 87-88. We narrate the evidence adduced accordingly.

In 1971 appellant, then single and known as Carol Susan Pike, was a student at the University of Maryland, residing in an apartment at 3588 Powder Mill Rd., Apt. 302, Beltsville, Maryland. On 31 August of that year she and her father, William Patrick Pike, purchased a new 1971 Volkswagen Super Beetle from Silver Spring Auto City, Inc. Among the accessories with which the car was to be delivered equipped as listed on the purchase order was an air conditioner at $379. On 31 May 1972 when the car had been driven about 7,300 miles, appellant took it to Autoville, an authorized service dealer, for repairs to the air conditioning and heater systems. She spoke to William Roberson, a “service adviser". lie told her the heater was covered by warranty. His recollection was that “She asked me about the air conditioner and, of course, she said it should be warranty. Now I wasn’t too sure because warranty on the air conditioner is kind of tricky, so I said, well, I will check on it. I said, T am not sure. I won’t guarantee you it is warranty.’ I believe she said she would check back with me later during the day. ... I told her at that time that it was not warranty. Well, she said, ‘Go ahead and fix it. It had to be fixed anyhow.’ ”

When she bought the car she received a Warranty Voucher, issued by Volkswagen of America, Inc. and authenticated by the selling dealer. It specified: “The warranty commences at the date the VW automobile is delivered to the original purchaser, viz. on 9-1-71 and covers a period of 24 months or the period before the vehicle has been driven 24,000 miles, whichever event shall first occur. Should any warranty claim arise, you are requested to submit this voucher to your VW dealer.” The warranty voucher was contained in a Volkswagen Maintenance Record Book which discussed the warranty terms. It stated: “If any part of the vehicle becomes defective during this period under normal use and service and the vehicle is brought to the workshop of any authorized Volkswagen dealer in the continental United States, Hawaii or Canada, the dealer will, without charge, either repair the defective part or replace it with a new or factory reconditioned part.” It designated items not covered by warranty. An air conditioner was not listed as one of them. The warranty was further explained in the book. There was no indication that the air conditioner was not covered. The explanation declared: “Volkswagen of America, Inc. is proud of the quality of the automobiles it imports. It warrants new vehicles for a period of 2 years or 24,000 miles from the date of purchase, whichever comes first. In general the complete vehicle including battery and tires is covered under the provisions of the Volkswagen New Vehicle Warranty. It will be honored by any Authorized Volkswagen Dealer in all 50 States, the District of Columbia and Canada.”

Later in the day on 31 May 1972 when she went to Autoville to pick up the repaired car, she questioned the bill, telling the cashier that she understood that at least the heater was under the warranty. The cashier called Roberson over. He simply said that it was not covered — “Well, I made a mistake.” She paid the bill by check. She did not press the warranty issue further at the time because “. .. well, he had convinced me — I don’t know anything about mechanical process or anything and he talked to me in mechanical language and I figured of the two of us he certainly knew more about cars than I did and I at that point had no reason to distrust him.” When she went home she talked to her future husband, Gary Shipp, and her father. Both thought the repairs should be under the warranty. Her father said, “We got you a new car so there wouldn’t be any problems.” He suggested she stop payment on the check. She decided to call Autoville “. . . and talk not just to a service adviser but to a service manager and I asked — I called them and I asked for such a person, I didn’t have any name, and I was going to explain how I felt and what I had learned since I got home, and you know, find out if there was something that could be done about it, and if I didn’t get any satisfaction from that phone call that I would stop payment on the check, because I didn’t think I was going to get any better satisfaction, and they also had my money.” She made the phone call the next morning and spoke to a Mr. Hunt who identified himself as a Service Manager. She told him about the transaction, that she felt it was work covered by the warranty and that an error had been made in charging her $30.20. She testified that she told him “That I had on good authority, that other Volkswagen dealerships in the area would have called that work warranty work and would not have charged me and ... his answer was that I had to bring him notarized affidavits from service managers that this was true, and I said that was ridiculous. Why should the burden of proof be on me, that he should know what the warranty was without everybody else telling him, and he was not really very cooperative.. He said, ‘Well, I really don’t know anything about the case and I will have to look into it and see the invoice and I will call you back.’ And because I didn’t get any satisfaction and he had not been the most cooperative person I decided it was best if I did stop payment on the check, so I called my father and I told him what had happened and then I called the bank”. She stopped payment on her check.

The early part of June 1972 Sharon Greer, appellant’s roommate, took a telephone message for appellant from Hunt. According to Ms. Greer, Hunt said, “First of all she does have to pay the check; she should not stop payment on the check. She has to, you know, pay the check.” He went on to explain about the air conditioning. “There was a problem, warranty problem. He said that some parts of the air conditioning, he used all the technical terms, but the gist of it was that some parts of the air conditioner were put in by the manufacturer and other parts were put in by the dealer. The dealer parts that air conditioner was put under wasn’t covered by the warranty and he said, ‘But if Miss Pike feels that she still is entitled to this money she should go back to the original dealer where she purchased the car and they will in turn reimburse her for the payment, I think it was $30, but they will pay her’, but she still had to pay them.”

Appellant testified that Fenwick called her about the middle of June. “He informed me that he had a cancelled check and that if I didn’t make good on the check he was going to have me arrested and he read out the code and everything that I had violated and after he had gone on for a bit and I hadn’t really gotten a chance to say anything I broke in and I said ‘Well, I did have a reason for stopping payment on that check.’ And I explained to him what it was, and that I felt it needed more of an explanation as to why this was not warranty work and then he told me that he really did not know any details about the case and these are his own words, he said the only thing he knew was he had my cancelled check in his hand. I use his words because I remember them. And he said that he would have to look into it and that he would get back to me in the mail and either he would send me the check or he would send me information as to that he would proceed with prosecuting me for stopping payment.”

Fenwick told about his telephone call to appellant. “It took a while to contact her, but I finally did through her mother. Her mother gave me a phone number where I could reach her and I got her at a number other than the one on this check, I think. . . . She said, well, she told me something about a warranty dispute that she didn’t believe that she should be responsible for paying for some repairs. All I had at that time was the check and I believe that I said that ‘Well, I will have to look into it’ or something like that Well, I believe that I told her that I would be back to her, one way or another and I think that because I had a hard time getting her on the telephone that I said that I would send her something in the mail.” He “probably” asked her that the check be made good. Fenwick decided that the work that was performed was not covered by the Volkswagen warranty as he interpreted it. He sent a letter, signed by him as Vice President, to the address that was on the check and the invoice. The letter was dated 9 June 1972. It read:

“The Suburban Trust Company has returned your check #312 written to Autoville, Ltd. for $30.20 marked ‘Payment Stopped’. Unless we have received this sum in cash within ten days of receipt of this letter, we shall use the avenues of legal recourse left open to us.
If you have any questions on this matter, please contact us.”

The letter was mailed on 9 June 1972 by certified mail, return receipt requested, with instruction to deliver to addressee only. It was returned “Unclaimed”. Fenwick had no contact with appellant between the time he talked to her on the telephone and the sending of the letter. When the letter was returned he went to Detective Schachner and complained. Schachner said, “We are not a collection agency.” Fenwick replied, “Well, I don’t particularly care about [the money] at this point.” No civil suit had been instituted. During his testimony he was asked why he went to the police. He explained: “Well, because I just, I couldn’t understand why someone could just arbitrarily decide to — well, I considered it stealing. They had gotten something and not given anything back for it, and I just — I didn’t feel it was right.” He could not remember whether he was told that appellant had discussed the warranty problem with Roberson and Hunt. He admitted that in the telephone conversation with appellant he told her when she inquired about the warranty that he would be in touch with her concerning the warranty matter. But he made clear he did not do so. “The only time I believed I talked to her was the one time on the telephone. I had never seen her. Never met her. Never seen her car at all.” There was no mention of the warranty dispute in his letter of 9 June.

In Fenwick’s application for a warrant for appellant’s arrest the reason as set out therein was that appellant “paid for services received with a worthless check, number 312, dated 5-31-72, in the amount of $30.20 drawn on the Suburban Trust Co., Hyattsville, Md., returned Payment Stopped. Said check was given to an employee, Florence V. Webb, who can identify the accused. No restitution has been made to date. The accused did not claim the registered letter sent to notify her of the banks refusal to honor said check.” The warrant was issued upon the sworn application of “John A. B. Fenwick agent for Autoville Ltd.” The defendant was named as Carol S. Pike, 620 University Blvd., West, Silver Spring, Maryland, who was described as “W/F/20/5'3/140 lbs/heavy bld/bleached blond”. It charged her with violation of Code, Art. 27, § 144 and gave a “Concise statement of essential facts constituting offense charged”:

“did unlawfully with intent to cheat and defraud the said Florence V. Webb, agent for Autoville, Ltd., 9330 Baltimore Blvd., College Park, Maryland, of Thirty dollars and twenty cents ($30.20), current money of the United States by means of a check drawn on Suburban Trust Company, Hyattsville, Maryland, which said bank was not indebted to the drawer, and said drawer did not provide for payment of same, said check was not paid on presentation and returned marked payment stopped and said check was not made good within ten (10) days.”

During his testimony, Fenwick expressly conceded that other than the fact that he had a check on which payment had been stopped, he had no other evidence that appellant intended to stop payment on the check when she delivered it to Autoville. Appellant asserted emphatically in testifying that when she gave the check to Autoville she had no intention of stopping payment on it. It is clear that when she made the check there were sufficient funds in her account to cover it. She had deposited $75.34 in her checking account before she wrote the check. The deposit slip so showing and a ledger sheet of her account were received in evidence. The ledger sheet showed that when the check was charged to her account on 5 June (it was credited the same day as not paid) there was a balance on deposit of $263.12. The balance on 31 May was $82.44. At no time between the time the check was made and the time it was presented for payment were there insufficient funds to cover it. Around the 4th of July 1972 appellant went to Ocean City with her parents. When she returned home on 7 July there was a message to call Detective Schachner. He told her a warrant had been issued for her arrest and that it would be better for her to come in on her own than for him to send a squad car after her. She went to the Forestville Police Station with her mother and was arrested. She was transported to the Hyattsville Police Station. She was given a copy of the warrant, informed of her rights, fingerprinted and photographed. After being in custody over two hours she was released on her own recognizance.

DECISION

The Torts of False Arrest and False Imprisonment

The Court of Appeals in Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 654-657, neatly summed up the status of the law in this jurisdiction with respect to false arrest and false imprisonment:

“False imprisonment and false arrest are common law torts that apparently differ only in terminology. 32 Am.Jur.2d, False Imprisonment, Sec. 1 (1967). The necessary elements of a case for false imprisonment are a deprivation of the liberty of another without his consent and without legal justification. Safeway Stores Inc. v. Barrack, 210 Md. 168, 122 A. 2d 457 (1956).
The term legal justification has created some confusion in other courts. See Roberts v. Hecht Company, 280 F. Supp. 639 (D. Md. 1968). This confusion arises because of the frequent statement that probable cause is not a defense to an action for false imprisonment but legal justification is. Probable cause, however, may be shown in mitigation of punitive damages. Clark’s Park v. Hranicka, 246 Md. 178, 227, A. 2d 726 (1967); Fleisher v. Ensminger, 140 Md. 604, 118 A. 153 (1922).
We think the law in Maryland is settled on this point.!! When the cases speak of legal justification we read this as equivalent to legal authority. In Dorsey v. Winters, 143 Md. 399, 122A. 257 (1923) the jury was instructed that if they found ‘that defendant deprived the plaintiff of his liberty without probable cause, then the verdict must be for the plaintiff.’ We held this instruction defective for failure to distinguish between the torts of false imprisonment and malicious prosecution, saying at page 411, ‘If the prayer was based upon the theory that the detention of the plaintiff was unlawful, it is defective in failing to require the jury to find as a fact essential to recovery that the arrest and imprisonment were without color of legal authority.’
Whatever technical distinction there may be between an ‘arrest’ and a ‘detention’ the test whether legal justification existed in a particular case has been judged by the principles applicable to the law of arrest. . . .
As it now stands in this state arrest or detention without legal authority, with or without probable cause, will render the arresting person liable for such damages ‘as the jury may consider actual compensation for the unlawful invasion of his [the plaintiff’s] rights and the injury to his person and feelings.’ In addition, if the act was ‘inflicted maliciously or wantonly, the jury are not restricted to an award of compensatory damages, but [in its discretion] may award . . . such punitive damages as the circumstances of the case may warrant as a punishment for the wrong done and as an example to others.’ Dennis v. Baltimore Transit Co., 189 Md. 610, 616, 56 A. 2d 813 (1948). If punitive damages are allowable, probable cause for the detention may be shown in mitigation of this stripe of damage as having a bearing on the quality of any malice or wantonness found to exist. Clark’s Park v. Hranicka, supra at 187; Safeway Stores Inc. v. Barrack, supra at 173-174; Fleisher v. Ensminger, supra at 620; Lewin v. Uzuber, 65 Md. 341, 348-49, 4 A. 285 (1886).” (footnote omitted)

This was in full accord with Safeway Stores Inc. v. Barrack, supra, cited therein, in which it was stated at 173-174, that for false imprisonment “. . . there must be a deprivation of the liberty of another without his consent and without legal justification. Although intent is necessary, ‘malice’ is not, nor is probable cause a defense.” It is fundamental, therefore, that when an arrest has been effected by valid legal process, an action for false arrest and false imprisonment arising from the legal arrest, will not lie. Brewer v. Mele, 267 Md. 437, 440; Lewin v. Uzuber, 65 Md. 341.

The Tort of Malicious Prosecution

The necessary elements of a case for malicious prosecution of a criminal charge are well established. A summary of the requisites for such an action was set out in Banks v. Montgomery Ward & Co., 212 Md. 31, 38 and applied in Gladding Chevrolet v. Fowler, 264 Md. 499, 505:

“To prevail in a suit for malicious prosecution the plaintiff must show: (1) that the criminal proceeding instituted or abetted by the defendant has terminated in his favor, apart from whether any inference as to probable cause for the proceeding arises from the termination; (2) a want of probable cause for the proceeding which may, or may not, be inferred from the termination of the proceeding, depending upon the manner of the termination; (3) malice, which is a primary purpose for the institution of the proceeding, other than that of bringing an offender to justice. Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173, supra, and authorities cited.”

See Durante v. Braun, 263 Md. 685, 688; Jannenga v. Libernini, 222 Md. 469, 472. False arrest, false imprisonment, and malicious prosecution are kindred actions. The Court pointed out in Safeway Stores, Inc. v. Barrack, supra, at 174, “The chief distinction between the two actions [false imprisonment and malicious prosecution] lies in the existence of valid legal authority for the restraint imposed.” Prosser, Torts, 4th ed. (1971) § 12, p. 49, puts it thus:

“The distinction between the two lies in the existence of valid legal authority for the restraint imposed. If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of the law and the state, and not to be imputed to him. He is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose. The action must be for malicious prosecution, upon proof of malice and want of probable cause, as well as termination of the proceeding in favor of the plaintiff.” (footnotes omitted)

The Instant Case — False Arrest and False Imprisonment

Appellant presents no argument in her brief going to the propriety of the direction of the verdict in regard to false arrest and false imprisonment. We deem, therefore, that she has abandoned any contention regarding them. Maryland Rule 1046 f. In any event, it is clear that appellant’s arrest and the restraint imposed were under valid legal authority — a duly issued arrest warrant sworn out by Fenwick as Vice President of Autoville. Autoville and Fenwick complied with the formal requirements of the law in swearing out the warrant and while it may be that they could be liable for misuse of legal process to effect a legal arrest for an improper purpose, the actions of false arrest and false imprisonment will not lie against them. We conclude that the trial court did not err in directing a verdict in favor of appellees with respect to false arrest and false imprisonment, that is as to counts one and three of the Declaration.

The Instant Case Malicious Prosecution

The crime of which appellant was accused is proscribed by Code, Art. 27, § 144, as amended effective 1 July 1972 with no change in the substantive offense:

“Every person who shall obtain money, credit, goods, wares or anything of value, of the value of one hundred dollars or more, from another by means of a check, draft or any other negotiable instrument of any kind, with intent at the time of giving such instrument without the consent of such other to stop or countermand the payment of the same or otherwise to cause the drawee thereof to disregard or dishonor or refuse to recognize such instrument, shall be deemed to have obtained such money, credit, goods, wares, or other thing of value with intent to cheat and defraud another and upon conviction, shall be fined or imprisoned or both, as provided in § 140 of this article, at the discretion of the court. Where the value of such money, credit, goods, wares or anything of value is less than one hundred dollars, such person, upon conviction, shall be deemed guilty of a misdemeanor and fined not more than fifty dollars or imprisoned for not more than eighteen months in the house of correction or jail, or both fined and imprisoned in the discretion of the court. And upon the trial of any person accused of violation of this section, the fact that such person without the consent of such other to stop or countermand the countermanded payment of such instrument, or otherwise caused the drawee to disregard or dishonor the same without returning or tendering the return of the thing so obtained shall be presumptive evidence of such intent to cheat and defraud.”

The criminal proceeding under this statute which was instituted or abetted by appellees terminated in appellant’s favor. The question is whether the court properly refused to permit the elements of (a) want of probable cause for the criminal proceeding, and (b) malice as the primary purpose for the institution of the proceeding, to be submitted to the jury.

(a)

Gladding Chevrolet v. Fowler, supra, at 505-506, reaffirms the definition of probable cause set out in Banks v. Montgomery Ward & Co., supra, at 39:

“Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty.... Mere belief, however sincere, is not sufficient. There must be such grounds of belief founded upon actual knowledge of facts as would influence the mind of a reasonable person.” (citations omitted)

It is well settled that the existence of probable cause is a question to be determined as a matter of law by the court upon a given set of facts, but when the facts are disputed, the question shall be submitted to the jury under adequate instructions. Montgomery Ward & Co. v. Cliser, supra, at 416. and cases cited. Kennedy v. Crouch, 191 Md. 580, 590-591, said it a little differently but to like effect:

“What facts are sufficient to show want of probable cause in any case is, of course, a question of law for the court; but whether such facts are proved by the evidence is a question for the jury. * * * If the facts relied on to constitute probable cause, or the inferences to be drawn therefrom, are clear and undisputed, the question is one of law for the court; but if the evidence or inferences to be drawn therefrom are disputed, it becomes a mixed question of law and fact.” (citations omitted)

The trial judge explained to the jury why he directed a verdict in favor of appellees. Referring to the intent required by § 144, he recognized that “it is always difficult to prove what goes on in the mind of a person charged with such an offense.” But the intent here gave him no difficulty, even though he was satisfied that appellant had no intention to defraud when she gave the check. “Mrs. Shipp deposited money in the Suburban Trust Company to cover payment of this, came back, got her car, paid for it, no intention to defraud. I go along with that.” He made clear that the reason “intent” gave him no difficulty was because of the presumption declared in the statute of an intent to cheat and defraud when the person giving the check causes the drawee to dishonor it without returning or tendering the return of the thing obtained. He said, “Now we won’t in my discussion belabor this particular section too much. It is obvious that when you receive services you cannot return the services. They are spent. But, it is also obvious from the statute that if you don’t get the consent to stop payment there is a presumption under the law of such intent to cheat and defraud.” He felt the advice given appellant to stop payment on the check “was not the best that could have been given, that because of the fact there is a presumption under the law where the stop payment was not consented to that that in and of itself would be enough to defeat the Plaintiff’s action because of want of probable cause.” We are constrained to conclude that the trial judge considered the statutory presumption to be a conclusive rather than a rebuttable presumption. We do not find this to have been the legislative intent. The statute speaks in terms of “presumptive evidence” upon the trial and we think that “presumptive evidence” of intent to defraud may be rebutted by evidence tending to show that there was no such intent. The presumption was simply legislative recognition of the inherent difficulty in proving intent to cheat and defraud, and may establish such intent prima facie at trial. But it was surely not meant by the Legislature to be legally sufficient to establish conclusively such intent beyond a reasonable doubt.

Even if the remarks of the trial judge may be fairly interpreted as considering the presumption rebuttable, when we take the whole of his comments as finding that the evidence adduced was not sufficient to raise a dispute as to want of probable cause, we think he was wrong. In the first place, we note that a want of probable cause may be inferred from the termination of the proceeding, depending upon the manner of the termination. It is generally held that a nolle pros is a sufficient termination of the proceeding. Norvell v. Safeway Stores, Inc., 212 Md. 14, 22. See Greathouse v. State, 5 Md. App. 675. Norvell observes that whether such a determination is evidence of a want of probable cause is a question on which the authorities are divided. “Prosser inclines to the view that it is not. See also Western Union Telegraph Co. v. Thomasson, [251 F. 833], p. 838, and Shoemaker v. Shoemaker, 78 A. 2d 605, 608 (N.J. App. Div.). The Restatement, Torts, § 665, takes the position that a dismissal by a public prosecutor is not evidence of a want of probable cause, but contra, as to dismissal by a private prosecutor. In the latter situation it has been held here that the dismissal by an instigator is not in itself sufficient evidence. Flickinger v. Wagner, 46 Md. 580, 603.” Id., at 22-23. The question has not been settled in this jurisdiction. But here we have on the record not merely the fact of the entry of a nolle prosequi, which may be entered by the State’s Attorney only in open court, Rule 711, but also the reason for the entry. The prosecutor ascribed the nolle pros to “No evidence of criminal intent.” It may well be that the termination here may be properly considered, at least to the extent of tending to show that the facts or inferences drawable from the “probable cause” that motivated the criminal charge were not clear and undisputed. See Carl M. Freeman Assoc. v. Murray, 18 Md. App. 419. But we need not decide the point. Even apart from any inference as to want of probable cause for the criminal proceeding arising from the termination, we are of the opinion that the trial court erred in ruling as a matter of law that appellant did not produce legally sufficient evidence to warrant submission to the jury of the issue of lack of probable cause on the part of appellees. As we have indicated, in rendering a directed verdict against appellant, the court was bound to assume the truth of all credible evidence supporting appellant’s contention and the reasonable inferences to be drawn from them. Viewed in this light, the evidence was patently not clear and undisputed that appellant obtained the repairs to her car by means of a check with intent at the time of giving it to stop the payment of it. She deposited money in her checking account sufficient to cover the amount of the check before she drew it. She stopped payment of it in the light of the v/arranty provisions, the meaning of which was uncertain to Autoville’s agents. Three of them had promised to look into the question. Fenwick, before he swore out the warrant, knew directly from appellant that she was seriously questioning the propriety of the charge for repairs and he could have ascertained by reasonable inquiry of other employees that she had raised the issue with them. He swore out the warrant without contacting her about the warranty even though he told her he would look into the warranty question. The return of the letter unclaimed apparently triggered his visit to the police. The letter was sent to the address on the check, the residence of her parents, but it was mailed with direction to deliver to addressee only. Fenwick, however, was on notice when he sent the letter that she may not be at that address. He testified that he had trouble contacting her and reached her through her mother who lived at the address he had. Her mother gave him a number “other than the one on this check”, and he reached appellant there. He could have asked her for her current address or inquired further of her mother when the letter was returned. Appellant testified that when she gave the check she had no intention of stopping the payment of it. Fenwick expressly stated he had no evidence of any unlawful intent other than that payment had been stopped. Fenwick had appellant’s explanation why payment had been stopped before he instituted the criminal prosecution. He could not with impunity ignore it. A failure to investigate may destroy probable cause. Montgomery Ward & Company, Inc. v. Keulemans, 23 Md. App. 81. See Durante v. Braun, supra. We find that the question of probable cause to initiate the prosecution was for the jury.

(b)

The rule of law with respect to malice was succinctly put by the Court of Appeals in Banks v. Montgomery Ward & Co., supra, at 42:

“Where there is lack of probable cause, malice may be inferred, although the inference may be rebutted by the defendant. The question of malice, that is, the question of whether the defendant acted from other than proper motives, unlike probable cause, is a question for the jury. Torsch v. Dell, 88 Md. 459.”

In Safeway Stores, Inc. v. Barrack, supra, the Court said, at 175.

“We have held that malice may be inferred from a lack of probable cause, although want of probable cause cannot be inferred from any degree of malice. . . . Probable cause is a good defense, although the instigator may have been actuated by malice and the accused was acquitted. . . . The presumption of malice resulting from the want of probable cause is only prima facie and may be rebutted by the circumstances under which the defendant acted.” (citations omitted)

We find that the question of malice was for the jury.

We conclude that the trial court erred in directing a verdict in favor of appellees with respect to malicious prosecution, that is counts two and four of the Declaration. To hold otherwise, in our opinion, would deprive appellant of the benefit of the assumptions and inferences to which she was lawfully entitled as the party against whom the motion for a directed verdict was made.

The judgment is reversed. Appellant is entitled to a new trial under counts two and four of her Declaration, seeking damages for malicious prosecution.

Judgment reversed; case remanded for a new trial in accordance with this opinion; costs to be paid by appellees.

      . Rule 552 e provides: “Upon the granting by the court of an instruction directing a verdict, the court shall instruct the clerk to enter such a verdict, and to note that it has been entered by the court’s instruction. It shall not be necessary for the jury, by its foreman, or otherwise, to render such a verdict.” See Rule 563 as to judgment n.o.v. and Rule 560 as to special verdict.

      . “Extenuating circumstances” were present in Keystone Engineering v. Sutter, 196 Md. 620 (appellant appealed, but upon realizing that there was no final judgment, applied to judge who granted judgment nunc pro tunc; appellee made no motion for dismissal) and in Kendall v. State, 132 Md. 93 (where both appellant and appellee considered the appeal valid and so treated it, held, motion to dismiss denied). See 26 Md.L.Rev. 94 (1966).

      . The entry of the judgment nisi was also superfluous. The verdict directed by the court was the equivalent of a judgment nisi.

      . We note a caveat. We think that if there are two or more appealable judgments in a cause, an appellant designating one would be bound by the designation.

      . Carol Susan Pike and Gary Edward Shipp intermarried on 16 February 1973. In January 1974, at the time of the trial of the case before us, she resided in Gaithersburg and was employed by the Board of Education in Montgomery County. “I work at Montgomery Hills Junior High School and I run a remedial reading center for students in junior high who do not read grade level.”

      . Volkswagen owner’s manual also mentioned a warranty; It said: “Genuine Volkswagen Parts, new and rebuilt and Approved Volkswagen Accessories are covered by a warranty guaranteeing them to be free of defects in material and workmanship for a period of 6 months or 6,000 miles, whichever comes first.”

      . The bill showed a charge of $20 to check out and evacuate the air conditioner system, $5 to “free up heater box”, $5 for freon and 20 cents sales tax for a total of $30.20.

      . The check was imprinted with appellant’s name and address, “Carol Susan Pike, 620 University Blvd., West, Silver Spring, Md. 20901.” This was also the name and address on the repair bill. The address, that of her parents, was apparently her permanent address as distinguished from the apartment in which she lived as a college student.

      . The mug shots taken of appellant showed vividly the substantial inaccuracy of this description. Appellant appeared to have dark hair, and her build was not “heavy”. She testified she had never had bleached blond hair and that she was 5 feet 9 inches tall.

      . She described her reaction:
      “Well, I was extremely upset at first because I was just scared and terrified and couldn’t believe that this had happened over $30.20 when no one had ever talked to me, and afterward I think the best word would be I was humiliated. Nobody knew when I was in that police station being booked and fingerprinted why I was there. Detective Schachner on more than one occasion referred to me as ‘the white female 1015’ or some number and at the time I was being fingerprinted and photographed it was not a private room. Policemen and other people were walking in and out and saw me standing there having my picture taken and at no time did anyone say why I was there and, you know, I didn’t — nobody knew why. I was just a criminal like anybody else being processed in there and I think it was probably one of the most upsetting things that has ever happened to me.”

      . Appellant sought damages in the first and second counts of her Declaration from Autoville — in the first count for false arrest and false imprisonment and in the second count for malicious prosecution. She sought damages in the third and fourth counts from Fenwick — in the third count for false arrest and false imprisonment and in the fourth count for malicious prosecution.

      . The Court expressly rejected Restatement of Torts (Second), Sec. 120A, providing that the detention of a suspected shoplifter may be justified by probable cause.

      . But see Montgomery Ward & Co. v. Cliser, 267 Md. 406, 415-416, where the Court seems to speak in terms of probable cause for the arrest with respect to a directed verdict. There was, however, an award of punitive damages.

      . Although Fenwick discussed the matter with his attorney the trial judge correctly determined that “His advice in this particular case, the attorney’s advice cannot be used as a method of defeating the action of the Plaintiff because there is no testimony as to the specifics which is necessary for a person to be relieved of the responsibility of the act fully upon the advice of the attorney.” Fenwick never testified that his lawyer advised him to prosecute and the lawyer had no independent recollection of the conversation. See Gladding Chevrolet v. Fowler, supra, at 506-510.