author: Orth, C. J.,

text:
    IN RE APPEAL NO. 245, September Term, 1975 from the Circuit Court for Kent County, SITTING AS A JUVENILE COURT
    [No. 245,
    September Term, 1975.]

      Decided November 28, 1975.

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

      David B. Mitchell, Assigned Public Defender, for appellant.

      .Michael James Kelley, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Floyd L. Parks, State’s Attorney for Kent County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

On 6 February 1975 two petitions were filed in the Circuit Court for Kent County, sitting as a Juvenile Court, against appellant, a youth then seventeen years of age. Both alleged that he was a delinquent child. One gave as reason that on 9 July 1974 he had stolen a bike belonging to C. Daniel Saunders (Code, art. 27, § 340). The other gave as reasons that on 12 December 1974 he had (1) received a pair of binoculars belonging to George Outten, knowing them to have been stolen (Code, art. 27, § 467), and (2) stolen the binoculars (Code, art. 27, § 341). The petitioner in each petition was William T. Blackiston, Jr., Deputy Sheriff of Kent County. At an adjudicatory hearing which terminated on 3 March 1975, the court found under the petition concerning the binoculars that appellant was a delinquent child. It dismissed the petition concerning the bike. At a dispositional hearing on 20 March 1975 appellant was committed to the Secretary of Health and Mental Hygiene for placement at Maryland Training School. The Secretary was directed to provide psychiatric and psychological services. An appeal was noted.

THE CONFESSION

Background

At the adjudicatory hearing, a confession obtained by the authorities from appellant was challenged. Evidence was received on the motion to suppress it. On 11 July 1974 Saunders reported the theft of his bike to the office of the Sheriff for Kent County. On 12 December 1975 Outten reported to that office that his home had been broken and entered and that personal property had been stolen. Blackiston and Deputy Sheriff Jess Metcalfe investigated the crimes. Their investigation led them to appellant, one of a group of suspects. On 18 January 1975, about 4:00 p.m., Blackiston and Metcalfe, in uniform and wearing side-arms, went in their official car to the trailer home where appellant lived with his parents. Appellant was the first “suspect” they went to see. Blackiston said: “I wasn’t sure he was my man. I wanted to investigate to find out who was.” The deputies told the parents they wanted to see appellant. Appellant appeared from within the trailer, and Blackiston took him to the car parked nearby to interrogate him. Blackiston testified that he did this “Because it’s generally my policy to do an interrogation on my grounds.”

Appellant was born in January 1958. At age 8 years and 10 months he was in the second grade in a school in Wilmington and was given an I.Q. test known as the WISC (Western Intelligence Scale for Children). His verbal score was 74, performance was 78 and full scale I.Q. was 73. The next year he was placed in the “Special and Emotionally Maladjusted” third grade class in a Kent County school. In 1968, 1969 and 1970 he was in primary “special education” at Millington. “Special education” was “a special placement in classes for children who cannot function or get along in a regular class for various reasons.” In May 1971 he was again given the WISC test and also an achievement test known as WRAT. On the former his verbal score was 75, his performance quotient was 92 and his full scale I.Q. was 81. On the WRAT test his reading level was 3.9, spelling was 4.3 and arithmetic was 3.3. In 1971 he attended the sixth grade at Galena Middle School. He was present 66 days and absent 8 days. He withdrew and his records were sent to Chestertown Middle School on 3 January 1972, although it seems that he did not attend that school. On 14 February he was transferred to Cambridge State Hospital where he remained until 27 March 1974, when he was discharged to his parents. There were home visits, so that the actual time spent in that Institution was about one year and four months. The Institution’s final diagnoses on discharge included “adjustment reaction of adolescence, conduct disturbance” and “borderline mental retardation with other (and unspecified) condition.” The condition on release and prognosis was, “Patient’s condition on leaving was excellent from the physical and psychiatric viewpoint. However, prognosis is considered guarded if patient doesn’t have enough supervision at home and if he doesn’t have a job in the community.” Appellant did not return to school. This was the background of the youth Blackiston took to the police car to interrogate.

Circumstances Surrounding the Obtaining of the Confession

Blackiston sat in the front seat and placed appellant in the back seat. Blackiston testified that he read all the Miranda warnings to appellant and that appellant said he understood them. “And I said, ‘Do you knowingly waive these rights?’ and [appellant] didn’t know what the words ‘knowingly waive’ meant, so I explained to him that if he wanted to talk to me about Mr. Outten’s property he could stop any time and not tell me anything. And he advised me okay.” There was evidence tending to show that the confession was voluntarily in the traditional sense. Blackiston said that neither he nor Metcalfe made any threats, gave any promises or extended any inducements to appellant to get him to talk. Metcalfe, who had remained at the trailer to talk to the parents, appeared about the time Blackiston finished giving the Miranda warnings and sat in the front seat next to Blackiston. The interrogation proceeded. Appellant gave a verbal statement.

Appellant’s father gave his version of what occurred:

“He drove up to the yard and my wife went to the door and said a Trooper car was here, and I said, ‘What - Trooper,’ and she said, ‘From Maryland.’ Then they came up to the door and one had his hat on [apparently Blackiston] and the other one didn’t. Before he knocked on the door she opened the door. And he said — I can’t tell one from the other, but the one that had the hat on said, ‘Could I talk to Stanford?’, and she said, ‘Come on in.’ They came in and the short one, the one that didn’t have the hat on, wasn’t completely in the door. My wife called to [appellant], he was in the back, in the back bedroom and he came out of the trailer on thé porch part. She said to him, ‘They want to talk with you.’ Then the one that had the hat on said, ‘Boy, go to the car.’ They went on to the car. Then the one that didn’t have the hat on, he went out first. He was the last one getting in the car. I watched out the window.”

He denied that the deputies told them why they wanted to talk to appellant.

Appellant told what occurred when the deputies arrived:

“I was in the bedroom, in the back bedroom in the trailer, getting my.shirt. Then my mother called me out there on the porch because the policemen was there. Then the young one, with the hat on, asked my father could he ask me some questions. The one in the doorway didn’t say anything. Then we went out into the car and that was when he started asking me questions.”

According to appellant, he, Blackiston and Metcalfe went out to the car at the same time. Metcalfe said, addressing appellant by his first name, “_, we’ve got some trouble around here and I think you know about it.” Then Blackiston “started reading off my rights.” Appellant denied, however, that anything was said about a lawyer. He said he went with the “policemen” because he was afraid they would take him to Chestertown and lock him up. On cross-examination the State pursued the matter of the voluntariness of the statement in the traditional sense:

“Q. Now, did they ever threaten to hit you?
A. No sir.
Q. Or beat you?
A. No sir.
Q. Did they make any promises or do anything to you that was bad?
A. No sir.”

Blackiston was recalled by the State. He said that when he and appellant went to the car, Metcalfe remained at the trailer to talk to the parents. About ten or fifteen minutes elapsed before Metcalfe came to the car. Blackiston said that when he and appellant first arrived at the car “I introduced myself and advised [appellant] that I wanted to talk to him about George Outten’s home being broken into and some things being taken.” Blackiston iterated that he then gave the Miranda warnings, and that appellant said he understood them and waived them. On cross-examination, asked why he did not talk to appellant in the trailer about the Outten matter, Blackiston replied: “I do it differently at times, but I generally take the people out in the car to talk.” He said he tried “to deal with” both adults and juveniles the same way.

Admissibility of the Confession

The judge below granted the motion to suppress the confession. Upon our independent constitutional appraisal, see Davis v. North Carolina, 384 U. S. 737, 741-742 (1966), we think it was properly excluded. We reach this conclusion for alternative reasons. The confession was inadmissible both because an effective waiver of the privilege against self-incrimination and the right to retained or appointed counsel was not shown, and because it was the fruit of a poisonous tree.

The judge below apparently relied on the failure to show a valid waiver of the constitutional privilege against self-incrimination and right to counsel in holding that the confession was to be excluded. We are in accord. The rule of Miranda v. Arizona, 384 U. S. 436 (1966) is that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id., at 444. It is manifest that the statement here was obtained during a custodial interrogation. “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. The Court noted, at 444, n. 4: “This is what we meant in Escobedo [v. Illinois, 378 U. S. 478 (1964)] when we spoke of an investigation which had focused on an accused.” See Myers v. State, 3 Md. App. 534 (1968); Duckett v. State, 3 Md. App. 563 (1968). Effectuation of the Miranda rights may be waived “provided the waiver is made voluntarily, knowingly and intelligently.” Miranda, at 444. “After such warnings have been given, and such opportunity [to exercise the rights] afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Id., at 479. “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. .. . This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” 384 U. S., at 475. “Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Id., at 476. Although “[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver,” id., at 475, we believe that the State did not meet its heavy burden to demonstrate that appellant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. In reaching this determination, we have considered the background of appellant, his mental capacity, his education, the separation from his parents in order to interrogate him, the place of interrogation and its conduct by two armed officers. The “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights and do not presume acquiesence in their loss. Johnson v. Zerbst, supra, at 464. In short, upon the particular facts and circumstances surrounding this case, including the background, experience and conduct of appellant, we cannot say that appellant, in the constitutional sense, intelligently relinquished or abandoned his known rights or privileges.

The alternative reason why we think the confession here was inadmissible requires a look at the doctrine of the fruit of the poisonous tree as it applies in Maryland.

On 14 January 1963 the Supreme Court of the United States decided Wong Sun v. United States, 371 U. S. 471. Nearly half a century before, the Court held that evidence seized during a search unlawful under the Fourth Amendment could not constitute proof against the victim of the search. Weeks v. United States, 232 U. S. 383 (1914). The exclusionary prohibition extended as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920). The exclusionary rule had traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It followed from the Court’s holding in Silverman v. United States, 365 U. S. 505 (1961), that the Fourth Amendment may protect against the overhearing of verbal statements as well as the more traditional seizure of tangible evidence. Thus, verbal evidence which derived so immediately from an unlawful entry and an unauthorized detention may be no less the “fruit” of official illegality than the more common tangible fruits of an unwarranted intrusion. That is, the policies underlying the exclusionary rule do not invite any logical distinction between physical and verbal evidence. Wong Sun, 371 U. S., at 486. The fruit of the poisonous tree doctrine may not be applicable where the prosecution has learned of the evidence from an independent source or where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. The Court said, id., at 487-488:

“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but .for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

Although the Fourth Amendment was held to apply to the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), the Court of Appeals of Maryland promptly expressed the belief that Wong Sun was not intended to, and did not control state prosecutions. As far as this State was concerned, Wong Sun was buried. When original appellate jurisdiction in criminal causes devolved on the Court of Special Appeals, it followed the lead of the Court of Appeals. For twelve years, those accused and convicted of crimes endeavored from time to time to resurrect Wong Sun, but their attempts were firmly rejected by the appellate courts of Maryland, which steadfastly adhered to the view that Wong Sun did not apply. See cases cited in Ryon v. State, 29 Md. App. 62, n. 13 at 73-75 (1975). In Carter v. State, 274 Md. 411, n. 9 at 431-432, decided 11 April 1975, the Court of Appeals indicated some doubt as to its holdings with respect to Wong Sun, but left for another time the question of their continuing viability. That time came three days later when Everhart v. State, 274 Md. 459, was decided. Characterizing as “dicta” the prior declarations that Wong Sun “involved a federal prosecution, not a state one”, and that Wong Sun was “not intended to, and does not control prosecutions in state courts”, and noting that “such statements would now appear to have been erroneously gratuitous observations”, id., n. 4, at 478-480, the Court exhumed Wong Sun. It applied the Wong Sun rationale in holding that when information serving as a basis for probable cause was obtained or derived as a result of an illegal search and seizure, the doctrine of the “fruit of the poisonous tree” applies to preclude the use of such information as the basis for a search warrant. Id., at 478-482.

It now appears that the Supreme Court always deemed Wong Sun controlling in state prosecutions. On 26 June 1975 it decided Brown v. Illinois, 95 S. Ct. 2254, and the decision was firmly bottomed on Wong Sun. In applying the Wong Sun holdings to determine the validity of a conviction obtained in a criminal prosecution by the State of Illinois, the Court simply assumed without question that Wong Sun controlled. If this left any doubts as to the status of Wong Sun in Maryland criminal prosecutions, they were swiftly resolved. On 30 June 1975 the Supreme Court granted certiorari in the case of Ryon v. Maryland, 95 S. Ct. 2674. Minnie Sue Ryon had been tried in the Circuit Court for Harford County, convicted of murder in the first degree, and sentenced to life imprisonment. We affirmed the judgment on direct appeal, holding that Wong Sun did not apply to exclude a confession obtained from Mrs. Ryon. Ryon v. State, No. 376, September Term, 1973, filed 11 June 1974, unreported. The Court of Appeals denied certiorari, 272 Md. 747 (1974). The Supreme Court vacated the judgment of the Court of Special Appeals and remanded the cause to that Court “for further consideration in light of Brown v. Illinois." Complying with this mandate, we applied the Wong Sun teachings, reversed the judgment below because Mrs. Ryon’s confession was the fruit of the illegal arrest of her, and thus, was admitted in evidence in error, and remanded the case for a new trial. Ryon v. State, 29 Md. App. 62 (1975). It is clear that the Wong Sun doctrine is now the law of this State.* *****

We have indicated that the confession was obtained from appellant during a “custodial interrogation” of him within the contemplation of Miranda. We think also that appellant was in custody at the time within the contemplation of Wong Sun. When Blackiston took appellant to the car and placed him in the back seat in order to interrogate him, appellant was deprived of his freedom of action in a significant way and was, in fact, being detained. We do not think that a full-fledged arrest is a prerequisite of the application of the Wong Sun doctrine. Cf. Morales v. New York, 396 U. S. 102, 105-106 (1969). The question is whether the detention was illegal. We believe it was.

Courts Art. § 3-821, as in effect on 18 January 1975, provided:

“A child may be taken into custody:

(1) Pursuant to the order of the court under the provisions of this subtitle;
(2) Pursuant to the law of arrest;
(3) By a law enforcement officer or other person authorized by the court when he has reasonable grounds to believe that the child is in immediate danger from his surroundings and that his removal is necessary for his protection; or
(4) By a law enforcement officer or other person authorized by the court when he has reasonable grounds to believe that the child has run away from his parents, guardian, or legal custodian.”

It is clear that appellant wras not taken into custody under (1), (3) or (4) of the statute. Nor is there any indication that a warrant had been issued for his arrest. Further, the record does not reflect that the deputies had probable cause for a warrantless arrest. Blackiston said that after a report of the crimes had been received from the victims, an investigation was made, after which he and Metcalfe went to talk to appellant. Asked if he went to appellant’s home “for the possibility of having him confess to the crime of B & E’s around in that area”, Blackiston said, “Not at first. I went there to investigate a crime that took place and wanted to know what he knew about it. I never know whether they will confess or not.” Metcalfe said they “had reason to think” appellant was involved in the breaking of the Outten home and that they “understood” that appellant “had been riding around Golts” (the place where appellant lived), on a bike similar to the stolen one. This, absent further explanation, is obviously so insufficient to constitute probable cau.se for an arrest that discussion is unwarranted.* See Stanley v. State, 19 Md. App. 507 (1974), cert. den., 271 Md. 745; Hearsay and Probable Cause: An Aguilar and Spinelli Primer, by Judge Moylan of this Court, 25 Mercer L. Rev. 741 (1974). Nor can we find from the record before us that appellant waived his right not to be taken into custody except upon legal grounds. If he freely and voluntarily went to the car with Blackiston and effectively consented to enter and remain therein to be questioned, the burden was on the State to so establish. The record does not show, in the circumstances here, that the State met this burden. We conclude that the detention of appellant, prior to and during the interrogation of him, was unauthorized.

Having found that the detention of appellant was illegal, we consider next the effect of this illegal conduct by the authorities on the admissibility of the confession. In Ryon secundus we found from Wong Sun and the cases related thereto, that statements obtained following an illegal detention were not rendered inadmissible simply because of that illegality, nor were they rendered admissible simply because the Miranda warnings were fully given. 29 Md. App. 62 at 71. Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of:

(a) the voluntariness of the statement, which is a threshold requirement;
(b) compliance with the Miranda safeguards, which is as important in determining whether the statements were obtained by exploitation of the illegal conduct;
(c) other relevant factors, such as
(i) the temporal proximity of the detention and the confession;
(ii) the presence of intervening circumstances;
(iii) the purpose and flagrancy of the official misconduct.

In the context of this second reason why the confession was inadmissible, that it was the fruit of a poisonous tree, we assume, for the purpose of decision that the statement was voluntary, and that there was full compliance with the Miranda safeguards. We, therefore, look to the other relevant factors. The confession followed close upon the heels of the illegal detention; there was no significant time lapse. There were no circumstances intervening between detention and the confession. The admitted purpose of the detention was to interrogate and the taking of appellant to the car from his home and the presence of his parents was patently flagrant, the admitted purpose being so the interrogation of appellant could be on Blackiston’s own grounds. Thus, the confession was come at by exploitation of the illegality of the detention and not by means sufficiently distinguishable to be purged of the primary taint. Therefore, the confession was inadmissible.

THE TANGIBLE EVIDENCE

Immediately after obtaining a statement from appellant in the car, the deputies and appellant returned to the trailer. Blackiston asked the parents whether they had seen appellant with a pair of binoculars. The father replied that he had seen binoculars in appellant’s possession “the other day” and said to appellant, “Boy, ya tell the man where ya have them if you got it around here.” Blackiston’s version of what happened next was that appellant fetched the binoculars from somewhere in the trailer. The father’s version as given at the hearing was that appellant’s mother found the binoculars and gave them to the police. On the record before us, it appeared that the inquiry about the binoculars stemmed from appellant’s statement to the deputies. That is, from the record, we can only conclude that the deputies were led to the binoculars by what appellant told them. There was no evidence sufficient to establish that the deputies learned of the binoculars from a source independent of the confession. Blackiston testified that Outten made a complaint but the records regarding it were not produced. He also said that Outten told them what had been stolen, and that Metcalfe made a list of the articles as described by Outten, but the record is completely silent as to what articles were listed. The record just does not disclose that the authorities knew that binoculars had been stolen from Outten or that they had reason to believe that they were in the possession of the appellant, one of a number of suspects, until they obtained the confession. The deputies did not inquire about or seek the binoculars until they interrogated appellant but they did make inquiry and seek them immediately thereafter. The short of it is that, on the evidence, the binoculars were obtained through the confession and were a fruit of it. There was a causal connection between the confession and the tangible evidence which was not broken.

QUESTION FOR DECISION

The question for decision on this appeal is whether, upon proper identification, the binoculars were admissible in evidence at the adjudicatory state of the delinquency hearing.

DECISION

The court below, not having the benefit of Brown, Everhart or our second Ryon opinion, admitted the binoculars in evidence over objection, stating, “It seems to me that based on the testimony thus far that these have come into the hands of the police without any violations of anybody’s constitutional rights.” Wong Sun and its progeny teach us to the contrary.

I

We look first at the admissibility of the binoculars in the frame of reference of the primary illegality being an unauthorized detention. When official misconduct resulting in the primary taint is an unreasonable search and seizure or an illegal arrest or an unauthorized detention, the Fourth Amendment is invoked. Violation of the Fourth Amendment right brings into play the exclusionary rule. The exclusionary rule applies to render inadmissible both tangible evidence and testimonial evidence derived from the official misconduct and tainted thereby.

In the case sub judice, granting the primary illegality, namely, that the detention of appellant was unauthorized, it followed that not only the subsequent confession was illegal, as we have indicated, but also that the binoculars improperly came into the possession of the deputies. The testimonial evidence derived from the detention, and the tangible evidence derived from the testimonial evidence. In other words, the detention led to the confession and the confession led to the binoculars. Each was the immediate, direct and proximate cause of the other with no break in the causal connection by time or circumstances. The primary taint flowed down to the confession and from it to the binoculars. The State did not establish that the binoculars were come at by means sufficiently distinguishable to be purged of the primary taint. Under the Wong Sun doctrine, the binoculars were inadmissible in the hearing on the delinquency of appellant, and we so hold.

II

We next look at the admissibility of the binoculars in the frame of reference of the primary illegality being the obtaining of the confession from appellant. As we have indicated, an alternative reason why the confession was inadmissible was that it was obtained without an effective waiver of the Miranda rights. This official misconduct invoked the Fifth Amendment. The question is whether the Wong Sun doctrine applies when the primary illegality is a violation of the Fifth Amendment privilege against self-incrimination. The State argues- strongly that it does not. It points out: “In Carter and Everhart, the Court of Appeals had adopted the ‘fruit of the poisonous tree’ analogy in the context of illegal searches and seizures.” It asserts: “No decision in this State, however, has mandated the application of that doctrine where the poisonous tree has Fifth Amendment roots.” It cites and'quotes from George, The Fruits of Miranda: Scope of the Exclusionary Rule, 39 Colo.L.Rev. 478 (1967). Professor George, who believed that “to exclude derivative evidence on the strength of Miranda is to push the decision to its outer limits.” Id., at 489-491. He would not exclude any evidence discovered as the result of a coerced confession. The State quotes in J. Cook, Constitutional Rights of the Accused Trial Rights, § 97 at 362 (1974), entitled “Fruits of an illegal confession”:

“Once it is determined that a statement was improperly obtained from an accused, it follows that any other evidence obtained as a result of the illegality is equally inadmissible. Thus, a confession ostensibly valid may be inadmissible by virtue of the taint of a previously improperly obtained confession.”

It answers this assertion by observing that “[n]early all the cases cited by Cook to support his position, however, involve subsequent confessions tainted by previous improperly obtained confessions. Only a few involve the exclusion of tangible evidence the existence of which was uncovered through an illegal interrogation.” We are not persuaded to adopt the State’s view.

Miranda, at 479, declared flatly that until its required warnings and waiver are demonstrated by the prosecution at trial, “no evidence obtained as a result of interrogation can be used against him.” It warned, id., n. 48, at 479: “In accordance with our holdings today and in Escobedo v. State of Illinois, 378 U. S. 478, 492, 84 S. Ct. 1758, 1765; Crooker v. State of California, 357 U. S. 433, 78 S. Ct. 1287, 2 L.Ed.2d 1448 (1958) and Cicenia v. LaGay, 357 U. S. 504, 78 S. Ct. 1297, 2 L.Ed.2d 1523 (1958) are not to be followed.” In Harris v. Neto York, 401 U. S. 222 (1971), the Court retreated somewhat from this position. Concluding that statements of the accused, taken without informing him of his right of access to appointed counsel, could be used to impeach the direct testimony of the accused at trial, the Court observed, at 224:

“Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. ... It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.”

Then in Michigan v. Tucker, 94 S. Ct. 2357 (1974), the Court held admissible the testimony of a witness whom the police discovered as a result of the defendant’s statements which were excluded because in giving the Miranda warnings the police omitted the one that the defendant had the right to free counsel if he could not afford to hire counsel. In both Harris and Tucker, the misconduct of the police violated only the prophylactic rules developed by Miranda to protect the right against self-incrimination. Tucker at 2361 and 2367. Thus, the exclusionary rule did not apply because its deterrent purpose necessarily assumes that the police have engaged in wilful, or at the very least, negligent conduct which has deprived the defendant of some right. “Where the official action was pursued in complete good faith, however [as it was in Tucker], the deterrence rationale loses much of its force.” Id., at 2365. In the instant case, we do not have official action pursued in compete good faith, with the confession rendered inadmissible by the mere inadvertent omission of one of the prophylactic Miranda warnings. We have the confession being obtained in the absence of an effective waiver of the constitutional rights relating to self-incrimination and assistance of counsel to which appellant was entitled. The rationale of the holdings in Harris and Tucker does not apply to make admissible the tangible evidence obtained here, any more than it would apply to make admissible evidence derived from a confession not voluntary in the traditional sense.

Far from limiting the Wong Sun doctrine to Fourth Amendment violations, Tucker expressly invited the application of that doctrine to Fifth Amendment violations in a proper case. The Court, 94 S. Ct. at 2365, quoted what it said in United States v. Calandra, 414 U. S. 338 (1974) about the exclusionary rule. Its prime purpose, said Calandra, at 347, “is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” It continued:

“ ‘The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’ Elkins v. United States, 364 U. S. 206, 217, 80 S. Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).”

Then the Court in Tucker declared, at 2365:

“In a proper case this rationale would seem applicable to the Fifth Amendment context as well.”

We think the case before us is such a proper case.

The weight of authority in other jurisdictions considering the admissibility of tangible evidence derived from statements unlawfully obtained is that such evidence is not admissible. People v. Paulin, 306 N.Y.S.2d 929, 934 (Ct. App. N.Y. 1969), held that tangible evidence seized as a result of suppressed statements to the police was properly excluded. The court in People v. Peacock, 287 N.Y.S.2d 166 (S.Ct. A.D. 1968), said, at 168: “If, indeed, defendant’s admissions were the source of the proof against him, we would hold, consistent with the rationale in the cases relating to the use of evidence proceeding from an illegal search and seizure, that the fruits of the unlawful conduct in eliciting the admissions without the mandated warnings were equally excluded.” State v. Mitchell, 155 S.E.2d 96, 99 (N. C. 1967) held that the trial court should have excluded evidence relating to where the police found a pocketbook “because they found it in consequence of the incompetent statement,” citing Wong Sun, Silverthorne, and Walder v. United States, 347 U. S. 62 (1954). In Commonwealth v. Leaming, 247 A. 2d 590 (Pa. 1968), in a homicide prosecution, the location of the victim’s body was a direct result of an admission given by the accused to the police. The admission was found to be inadmissible at the trial. The court said, at 594: “Thus, . . . the evidence concerning the finding of the victim’s remains and all evidence pertaining to the body itself was constitutionally inadmissible against him at trial.” Noble v. State, 478 S.W.2d 83 (Texas, 1972) found that tangible evidence was the result of a custodial interrogation at a time when the accused had not been properly warned. It held that the evidence was inadmissible as the fruit of the poisonous tree, there being no showing that “these items would have been obtained regardless by means sufficiently distinguishable from the underlying illegality to be purged of the primary taint.” Id., at 84. The court in United States v. Cassell, 452 F. 2d 533, 541, (7th Cir. 1971), holding that a statement was inadmissible, held “also that the handwriting exemplar obtained by the agents following the admission also was inadmissible as ‘fruit of the poisonous tree.’ ”

In United States v. Castellana, 488 F. 2d 65, 67, (5th Cir. 1974), the court determined that the accused’s statements were illegally elicited. The question then was. whether tangible evidence should be excluded as derivatives of the accused’s unlawfully elicited responses. It held, at 68: “Since we have found that [the F.B.I. Agent’s] questions constituted unlawful custodial interrogation, and the handguns were the products of those questions, [the accused’s] statements and guns must be excluded from evidence. Parker v. Estelle, 498 F. 2d 625 (1974), was decided by the United States Court of Appeals for the Fifth Circuit between the time of the original Castellana opinion and the rehearing. The court said, at 629, “There can be no doubt that the Silverthorne principle, announced in a search and seizure context, is applicable to a suppressed confession case. . . .” It noted, at 629, n. 11, what Silverthome said was the policy behind the rule: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. 251 U. S. at 392, 40 S. Ct. at 183, 64 L.Ed. at 321.”

We hold that, on the record before us, the admission of the binoculars in evidence at the adjudicatory hearing was error requiring reversal of the judgment. We reverse it, and grant a new trial.

In view of our holding, we do not reach appellant’s second question concerning the sufficiency of the evidence.

Judgment reversed; case remanded for a new trial.

      . See Maryland Rule 1097 concerning confidentiality with respect to appeals from courts exercising juvenile jurisdiction.

      . “ ‘Delinquent child’ means a child who commits a delinquent act and who requires supervision, treatment, or rehabilitation.” Courts Art. § 3-801 (k).
      “ ‘Delinquent Act’ means ... an act which would be a crime if done by a person who is not a child.” Courts Art. § 3-801 (j). See ch. 554, Acts 1975, effective 1 July 1975.

      . We note that in a delinquency hearing, pursuant to the Maryland Rules of Procedure in effect at the time of the hearing here, the State’s attorney shall prepare and present the testimony in behalf of tbe petitioner unless excused by the court. Rule 912 b. The rules of evidence applicable to criminal cases shall apply. Rule 912 c. The alleged delinquent may remain silent as of right and shall be so advised. Rule 917. The allegations must be proved beyond a reasonable doubt, and an uncorroborated confession made by a child out of court is not sufficient proof of delinquency. Courts Art. § 3-830 (a). The Court of Appeals, by order dated 18 June 1975, approved and adopted, effective 1 July 1975, a revision of chapter 900, made necessary by an enactment of a new statewide Juvenile Code by ch. 554, Acts 1975, §§ 3-801 to 3-833 of the Courts Article, effective 1 July 1975.

      . The court observed: “[T]he Court knows the circumstances of [appellant’s] stay at the hospital. He was sent for evaluation and due to his getting lost by the Courts or by Juvenile Services, or by someone, and due to the staff at the hospital feeling that he needed treatment, they didn’t submit a report to the Court, and continued to just keep him, that’s all. What’s the date? That’s February of ’72 I believe, and they didn’t submit a report until July 26th, ’72. And it refers to a conversation, and I am sure was the result of my conversation with Dr. English or Dr. Culloda, and I can’t recall which now, it was agreed we let him stay there. So I say all of this for record purposes and so that things won’t appear in a different light than the true light of this case. That’s all.”

      . There were two other diagnoses: “hypochromic anemia, treated”, and “adolescent gynecomastia, etiology unknown.”

      . The judge inquired about this statement. The transcript reads:
      “Judge Rasin: Why do you think they were going to do that? Do you think a policeman, every time you see one, is going to lock you up?
      A. They seem to aways have some reason.
      Judge Rasin: Do you mean whenever a policeman sees you he seems to have some reason to lock you up?
      A. Around here.”

      . The Court said in Wong Sun, at 486: “Either in terms of deterring lawless conduct by federal officers, ... or of closing the doors of the federal courts to any úse of evidence unconstitutionally obtained,... the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction.”

      . The Court said, 274 Md. at 481-482: “The doctrine of the ‘fruit of the poisonous tree’ extends the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search; in its broadest sense it prohibits the prosecution from using in any manner, prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of law enforcement agents.”

      . Neither Brown v. Illinois, supra, nor Everhart v. State, supra mentioned the question of retroactive application of their respective decisions. It is manifest, however, from the mandate of the Supreme Court to us in Ryon, that Brown is to apply, at the least, to cases not finally litigated at the time of the Brown decision. We said in Greene v. State, 11 Md. App. 106, n. 1, at 111 (1971), that a case is finally litigated when the time for direct appeal expires without an appeal having been taken, or if an appeal has been made, the date on which certiorari was denied by the Supreme Court of the United States, or the time to apply for certiorari has expired without application having been made.

      . In Brown v. Illinois, supra, at 2262, the Court noted the impropriety of an arrest “for investigation” or for “questioning.”

      . Mere suspicion is not the equivalent of sufficient probable cause. Henry v. United States, 361 U. S. 98, 101 (1959).

      . The court admitted the binoculars “subject to exception. . . . We will see what the defense has to say about them.” The binoculars remained in evidence.

      . Of course, as we have indicated, it has been only a few months since it was recognized in this jurisdiction that Wong Sun applies in state prosecutions.

      . The defendant’s interrogation took place prior to Miranda but his trial was afterwards. Therefore, Miranda applied. Johnson v. New Jersey, 384 U. S. 719 (1966).

      . The Supreme Court rejected a suggestion “that courts should exclude evidence derived from ‘lawless invasions of the constitutional rights of citizens’ ”, Terry v. Ohio, 392 U. S. 1, 13 (1968), in recognition of “the imperative of judicial integrity.” Elkins v. United States, 364 U. S. 206, 222. It said, Tucker, at 2367, n. 25: “This rationale, however, is really an assimilation of the more specific rationales discussed in the text of this opinion, and does not in their absence provide an independent basis for excluding challenged evidence.”

      . It would be absurd to suggest that the authorities could obtain a confession by torture and have evidence derived therefrom admissible at trial. The Court noted in Tucker, n. 23, at 2366: “Although completely voluntary confessions may, in many cases, advance the cause of justice and rehabilitation, coerced confessions, by their nature, cannot serve the same ends.”

      . The court observed that it was unlikely that the body would have been found without the aid of the accused. It was in a deeply wooded area removed from civilization and the police had no other evidence to connect the accused with the body other than his statements.

      . Upon rehearing en banc, the opinion was modified. A majority of the court opined that the Agent had a right to ask about guns as a “minimally offensive security measure in the line of Terry v. Ohio, 392 U. S. 1 (1968)” but that the inquiry about the source of the guns fell outside the rationale of the inquiry, “and that inquiry, as well as [the accused’s] answer to it were properly suppressed.” United States v. Castellana, 500 F. 2d 325, 326-327 (5th Cir. 1974).

      . The court in People v. Robinson, 210 N.W.2d 372 (Mich. 1974), excluded tangible evidence secured as a result of the accused’s involuntary statements but not on the ground that there is a Fifth Amendment branch of the fruit of the poisonous tree doctrine. It believed that such a branch was “always present as an essential element of the Fifth Amendment guarantee." Id., at 376. “While the exclusionary rule grew and developed as a necessary, but nevertheless extrinsic, adjunct to the Fourth Amendment, it has always been an intrinsic part of the Fifth Amendment.” Id., at 374. It construed the Supreme Court as holding, in its first opportunity to rule on the issue, “that evidence, primary or derivative, obtained in violation of the Fifth Amendment was inadmissible at a subsequent prosecution ” 210 N.W.2d at 375. Robinson relied also on Kastigar v. United States, 406 U. S. 441, 444-445 (1972), emphasizing the statement that the privilege against self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Robinson concluded, at 376: “Upon [the accused’s] trial, the prosecution will have the affirmative burden of demonstrating that all evidence which it seeks to introduce was in fact developed from a source wholly independent of defendant’s involuntary statements. Any other holding would be contrary to the clear meaning given to the Fifth Amendment by the United States Supreme Court.” Robinson observed that the defendant was erroneous in his reasoning that there was a Fifth Amendment branch to the fruit of the poisonous tree doctrine and noted that he was “in good company,” referring to People v. Tucker, 19 Mich. App. 320, aff’d, 385 Mich. 594 (1971), writ of habeas corpus granted, Tucker v. Johnson, 352 F. Supp. 266 (E.D., Mich 1972). 210 N.W.2d at 376, n. 1. When Tucker reached the Supreme Court, Michigan v. Tucker, supra, it would seem that the Court had an opportunity to adopt the Robinson view. Robinson was not discussed.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    PETER NAILS v. MARKET TIRE COMPANY, INC. ET AL.
    [No. 875,
    September Term, 1974.]

      Decided December 1, 1975.

    The cause was argued before Moylan, Moore and Mason, JJ.

      Leonard J. Ralston, Jr., with whom were Ashcraft, Gerel & Koonz on the brief, for appellant.

      William D. Foote, Jr., with whom was Francis J. Ford on the brief, for appellees.
   Mason, J.,

delivered the opinion of the Court.

This is an appeal from the judgment of the Circuit Court for Montgomery County denying the Appellant, Peter Nails, compensation for an injury alleged to have been sustained in the course of his employment.

The evidence adduced at trial disclosed that Nails was employed by the Market Tire Co. for approximately ten years. At the time of separation he was the head mechanic and worked on a commission basis. On Thursday, April 22, 1972, Nails was discharged because he recommended certain repairs for a customer’s car which the company believed were not needed. On Saturday, April 24th, Nails returned to the company to pick up his tools, which he had been required to furnish as a condition of his employment. While lifting the tools, which weighed about 800 pounds, with the assistance of another employee, he claimed he injured his back. Nails testified further that it was customary to allow employees two or three days to remove their tools.

After a hearing, the trial court ruled, in effect, that Nails was not an employee at the time of the alleged injury and, therefore, the injury did not arise out of and in the course of his employment. No determination was made as to whether Nails’ alleged injury resulted from an accident. As framed by the proceedings below, the narrow issue presented on this appeal is whether the alleged injury sustained by Nails after returning to the company to pick up his tools arose out of and in the course of his employment.

We have been unable to find any Maryland case on this point and none has been called to our attention. We believe, however, that the case of Consol. Engineering Co. v. Feikin, 188 Md. 420, 52 A. 2d 913 (1947) is instructive and has precedential value as a guide.

In Feikin, the claimant was a day laborer, who was only paid for the hours actually worked. After an extended illness, the claimant returned to the job on Monday, July 16th and was assigned to a labor-gang in the hot strip mill. He worked that one day and did not return again until 10:00 a.m. Friday, July 20th, to pick up his one day’s pay. It was the custom of the company to distribute pay slips on Friday morning, but require the workmen to pick up their wages at the office between 3:00 p.m. and 4:00 p.m. After receipt of his pay slip, the claimant told the superintendent he would return to work Monday if he felt the same. The claimant then went to the hot strip mill and asked one of the gang leaders where Blair’s gang was. He was told they were still working where they were on Monday. At 12:30 p.m. the claimant was found in the strip finishing department severely burned.

The trial court directed a verdict for the claimant, which the Court of Appeals reversed and remanded for a new trial. The Court held that the evidence did not warrant the trial judge ruling as a matter of law that the claimant’s disability was the result of an accidental injury arising out of and in the course of his employment. The Court indicated further the jury might have inferred that the claimant, having five hours to idle away before receiving his pay, visited the mill to talk about some personal matter.

Even though the Court of Appeals reversed Feikin on the grounds noted above, it adopted the English Rule which holds that where a workman remains on the premises or returns thereto to obtain his pay after work ceases, he is still acting in the course of his employment. As evidence of the adoption of the English Rule, the Court of Appeals said:

“It is acknowledged that a contract of employment is not necessarily terminated when the actual work ceases, but may continue until the workman’s wages are paid. This view was announced in England in 1907 in Lowry v. Sheffield Coal Co., 24 Times L. R. 142, 1 B.W.C.C. 1, where a collier quit work on Saturday at 5 a.m., and expected to resume work on Sunday night, but at noon Saturday w'hile walking along a footpath on the employer’s premises on the way to the office to get his wages, he was knocked down by an engine moving along a railway line which ran into the employer’s premises. The rule was reaffirmed in 1911 in Riley v. Holland & Sons, 1 K. B. 1029, 4 B.W.C.C. 155, where a female mill worker, who quit work on Wednesday, went to the mill on Friday, the regular pay day, to get her wages, and was injured when she slipped on her way down the steps from the pay office. In both cases it was held that the injuries arose out of and in the course of employment. . . .
“. . . The established custom, under which the workmen are required to appear at the employer’s pay office for their wages on or after the regular pay day fixed by the employer, becomes a part of the contract of employment. Parrott v. Industrial Comm. of Ohio . ..”. 188 Md. at 425, 426.

In Lowry v. Sheffield Coal Co., supra, at 2, the English Court stated:

“In my view it was just as much part of his employment to go to the pay office on that day at that hour as it was to go down the pit the following Sunday night.”

In Riley v. Holland & Sons, supra, at 157, the English Court observed:

“The contractual obligations of the employers were not terminated or satisfied until the wages due on Wednesday were paid on Friday. . . . Though her employment was at an end on Wednesday night, in the sense that she had ceased to work under the contract, yet the employment continued because of the obligation of the employers to her arising out of the employment and continuing until Friday afternoon.”

Arthur Larson in his treatise on The Law of Workmen’s Compensation, (vol. 1, 1972), supports the English Rule that “the contract of employment is not fully terminated until the employee is paid”. Sec. 26.30. He further supports the point that “collecting one’s personal effects on leaving employment is logically no different from collecting one’s pay, since both are necessary incidents of an orderly termination of the employment relation.” Sec. 26.40. We agree and find no rational basis for not applying the principle laid down in Feikin, supra, and the cases cited therein, to the circumstances here.

In Parrott v. Industrial Commission, 145 Ohio St. 66, 60 N.E.2d 660 (1945), cited with approval in Feikin, supra, the employee quit his job on October 23, and commenced working for another company on October 26. He returned to his former employer on October 29, to pick up one week’s pay due him. The bookkeeper was at lunch and the employee went to the boiler room to get his work clothes he had left behind. In returning from the boiler room to the timekeeper’s office, he fell and sustained an injury to his pelvic bone and hip. The Ohio Supreme Court, in addition to affirming the English Rule regarding an employee returning to pick up wages, said:

“Clearly he was not a trespasser in going to the boiler room for his clothing which he had worn while at work there. He had a right to pick up his own personal property which he was unable to take away with him when he quit work . . . Acts of an employee done within a reasonable period of time after actual working hours in making the necessary preparations to terminate his employment, are incidents of and within the course of his employment within the meaning and operation of the workmen’s compensation Laws.” 60 N.E.2d at 662.

In Molloy v. South Wales Anthracite Colliery, 4 B.W.C.C. 65 (1910), a miner left his job on April 28, 1910, after refusing to do certain work he was ordered to perform. He returned on Monday, May 2, 1910, and was told by the manager he had dismissed himself. The miner obtained leave to pick up his tools, and while down in the mine for that purpose, he was injured by a falling stone. The lower court found that the foreman ordered the miner to fetch his tools and that the accident arose out of and in the course of his employment. The Court of Appeals, England, affirmed. Larson, in commenting on this case, said:

“When a man has been fired, it could indeed be properly said that he is impliedly ordered to clear his personal possessions out of the way to make a place where his successor can hang his hat.”

I The Law of Workmen’s Compensation, Sec. 26.40, at 5-212. Of like import, see Cowler v. The Moresby Coal Co. (Company tools), 1 Times Law Reports 575 (Q.B. 1885). See also Marra Bros. v. Cardillo, (Clothes) 59 F. S. 368 (E.D. Pa. 1945), aff'd. 154 F. 2d 357 (3rd Cir. 1946); Bardes v. East River Housing Corp., (Clothes) 14 App.Div.2d 939, 221 N.Y.S.2d 51 (1961); Mitchell v. Consolidated Coal, (Tools) 195 Iowa 415, 192 N. W. 145 (1923).

There is responsible authority to the contrary. In Pederson v. Kromery, 201 Wis. 599, 231 N. W. 267 (1930), the employee was terminated, apparently on a weekend, and returned to the premises of the employer around 10:00 a.m. Monday to pick up his pay. After receiving his pay, he went to the warehouse to pick up his work clothes and tools. While going downstairs to where the articles were, he slipped and broke a bone in his foot. The Supreme Court of Wisconsin, although conceding that an employee, even after discharge, is covered by the Workmen’s Compensation Act, provided he is injured on the employer’s premises while present for the purpose of collecting his pay, held that Kromery’s return to the warehouse after discharge to pick up his tools and clothes was not referable to his employment contract and was not covered by the Act. See Parten v. State Industrial Commission, 496 P. 2d 114 (Okla. 1972) and Johnson v. City of Albia, 203 Iowa 1171, 212 N. W. 419 (1927). Three judges dissented and their opinion is more persuasive and convincing than that of the majority. The dissenting opinion held that:

“The appellant was subjected to the hazard that caused his injury solely because of his status as an employee. It was the fact that he was an employee that led him to take his tools and working clothes to the premises of his employer. It was the fact that he was an employee that made it necessary for him to return to- his employer’s premises in order to secure his property. The removal of his working clothes and tools from the premises was just as essential to end his status as an employee as was the payment of his wages. In either case I believe it should be held that the status continues until he had been paid his wages and has had a reasonable opportunity to remove his personal belongings, taken to his employer’s premises in order that he' might there use them for the purpose of promoting the business of his employer. . . .
“. . . To hold that the status created by the employment is terminated before the employee has a reasonable opportunity after notice of discharge to get his personal belongings seems to me to be a reversal of the policy of the law as it has been interpreted heretofore by this Court and by other courts under similar acts.” 231 N. W. at 270, 271.

Whether an accident causing an injury to an employee results from some obligation, condition or incident of the employment, depends .upon the circumstances of each particular case. Feikin, supra, at 424.

In the present case, the employee returned to the job two days after being discharged to pick up his tools, which he was required to furnish as a condition of his employment. The tools, together with the tool box, weighed approximately 800 pounds and, obviously, required a reasonable time to remove. Moreover, the tools were used for the benefit of the employer’s business, and it was customary to allow employees two or three days to remove their tools.

Under the circumstances of this case and the fact that “The Workmen’s Compensation Act should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes”, Beth. Sp. Pt. Shipy’d v. Hemp field, 206 Md. 589, 594, 112 A. 2d 488 (1955), we hold that if the employee sustained an accidental injury as alleged, it arose out of and in the course of his employment.

Judgment reversed, case remanded for a new trial, costs to be paid by appellee.

      . Although the employer moved to strike the latter testimony, he continued his cross-examination of the witness without obtaining a ruling on the motion. In the absence of showing a ruling was made or sought, the motion is treated as waived and not preserved for appellate review. Maryland Rules 522 d, 1085.

      . The employee in the instant case did not receive his final wages until after the accident.


author: Powers, J.,

text:
    HELEN ADAMS SAMI v. MOHAMMAD SAMI
    [Nos. 918, 1006 and 1099,
    September Term, 1974.]

      Decided December 1, 1975.

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

      Jackson Brodsky for appellant.

      Allen J. Kruger for appellee.
   Powers, J.,

delivered the opinion of the Court.

We deal here with three separate appeals, consolidated in this Court for briefs and argument, all arising from decrees or orders entered in a single equity case in the Circuit Court for Montgomery County. The case there was initiated by Helen Adams Sami, the appellant here, against her husband, Mohammad Sami, the appellee.

The contentions on appeal involve principally the divorce and child custody granted to Mr. Sami on his counter complaint, but relate as well to other orders entered before and after the decree.

A review of the voluminous record in this case reveals an almost incredible history of marital warfare, with skirmishes occurring up and down the eastern seaboard of this country, as well as abroad. The parties have engaged in litigation in the courts of Maryland and Florida. A comprehensive recital of facts is not necessary, but we shall refer to such of the facts as are relevant to the conclusions we reach on the issues we find it necessary to decide.

Mr. Sami, a citizen of Afghanistan, was employed by an international organization. The parties were married in Philadelphia in 1965, and lived, with their two children, in Montgomery County. A complaint for divorce and other relief, filed by Mr. Sami in September 1973, was dropped by agreement in November, with' a recital that the parties had become reconciled.

In early December 1973 Mr. Sami told his wife that he wished to take the children to New York for a few days for Christmas shopping.' About a week later Mrs. Sami learned that her husband had departed from New York with the children, headed for Afghanistan. She and her brother intercepted the party at Beirut, Lebanon. The children were taken to Florida, and it appears from the record that they have lived there with their mother ever since that time.

The present case began with a bill of complaint filed by Mrs. Sami in the Circuit Court for Montgomery County on 4 January 1974. She prayed for a limited divorce, custody of the children, child support, alimony, and counsel fees and costs. By an amendment, she alleged that there were disputes over the ownership of personal property, and prayed that the court make a proper disposition of the personal property. Mr. Sami countered with a complaint asking for a divorce, custody of the children, and other relief.

Among the numerous pleadings, amended pleadings, motions, petitions, orders, and other preliminaries to trial was an assertion by Mrs. Sami of a decree of a Florida court granting custody of the children to her. Also in the record is an order finding Mrs. Sami in contempt of the Circuit Court for Montgomery County for failing to obey an order that she have the children present in that court for a hearing on custody pendente lite.

Before the trial on the merits began, on 24 September 1974, Mrs. Sami withdrew, with leave of court, all of her prayers except those relating to child custody, and for general relief. The entire record of the Florida custody proceeding, which we shall descrihe in more detail later, was received in evidence. In his subsequent opinion the chancellor referred to the issue thus raised, as follows:

“It developed at the hearing that Mr. Sami had instituted habeas corpus proceedings in Florida in an effort to enforce this Court’s pendente lite order of February 8, 1974, awarding him custody of the children. He was unsuccessful, however, and the children’s custody under the order of the Circuit Court for Broward County, Florida, remains in Mrs. Sami.
“Plaintiff argued that this settled the question of custody and that this Court in effect had no jurisdiction to rule thereon but we disagreed. It was pointed out that Mrs. Sami had invoked the jurisdiction of this Court by filing her Bill of Complaint for divorce and child custody. The fact that she thereafter removed herself and the children to Florida did not divest this Court of jurisdiction to determine the issue of child custody. Article 16, Section 66 (f).”

Mr. Sami testified at the trial, and offered evidence through numerous other witnesses. We need say only that the evidence abundantly supported the chancellor’s findings that Mrs. Sami had committed adultery, and, with one exception which we shall discuss later, that the best interest and welfare of the children would be served by having their custody placed with their father.

At the close of the testimony counsel for Mrs. Sami represented to the court that a witness who had worked as a maid for Mr. Sami, and had lived in the home, was available to give testimony which would show that on several occasions in 1974 Mr. Sami had committed adultery. At the request of counsel the chancellor called the witness, Flor Easterlin, as the court’s witness. She was examined preliminarily by the chancellor, and was cross examined by counsel for each of the parties.

In his memorandum the chancellor referred to some of the testimony of Mrs. Easterlin. With respect to its place in the case, and its effect upon his conclusions, the chancellor said:

“The plaintiff did not plead recrimination. The Court consented to hear the testimony of Mrs. Easterlin pursuant to Rule 521 on the ground there is manifest duty to deny a divorce where it appears to the Court, the plaintiff or moving party is guilty of a recriminatory offense. Abare v. Abare, 221 Md. 445.
“It has often been said that where adultery is charged the evidence must establish affirmatively that the offense was committed. It has also been said that when a charge involving moral turpitude is imputed in a civil case something more than preponderance of evidence must be produced so that the proof is clear and satisfactory. Stenger v. Stenger, 14 Md. App. 232; German v. German, 137 Md. 424. It has also been noted that the defense of recrimination must be established as firmly as when alleged by a complaining party. Stenger v. Stenger, supra, at page 240. The Court stated also in the Stenger case at page 240:
‘For the purposes of our decision we will assume, without deciding, that corroboration is necessary to establish adultery as a recriminatory bar to an absolute divorce.’
“On the sketchy and uncorroborated testimony of Mrs. Easterlin, we cannot say that adultery has been established as a recriminatory bar to Mr. Sami’s prayer for an absolute divorce. Consequently, we will award an a vinculo divorce to Mr. Sami on the ground of his wife’s proven adultery.”

The Defense of Recrimination in Divorce Cases

The doctrine of recrimination is well established in the law governing divorce in Maryland. An incisive discussion of the doctrine as construed and applied in this jurisdiction is reported in Courson v. Courson, 208 Md. 171, 117 A. 2d 850 (1955). There, at 174, the Court of Appeals said:

“Recrimination is generally defined as a rule or doctrine which precludes one spouse from obtaining a divorce from the other, where the spouse seeking a divorce has himself or herself been guilty of conduct which would entitle the opposite spouse to a divorce. If both spouses were guilty of uncondoned adultery, the ecclesiastical courts, following the Mosaic law, would not grant relief by way of divorce to either of them. Almost all of the states follow this view and some, indeed most, go further.”

At 175, the Court noted that the provisions and policies of the law as announced in its own cases forbid divorce “to either of two spouses, both of whom have committed acts which constitute grounds for divorce under the statute, even though the acts are different . . . .” The Court further observed:

“In this State, too, recrimination need not be specially pleaded nor relied on, but if it appears to the chancellor that the complainant is guilty of recrimination, it is not only his right but his duty to refuse the divorce.”

Over a decade after its decision in Courson, the Court of Appeals again reviewed the viability of the doctrine of recrimination in this State, and found it to be alive and well. In Matakieff v. Matakieff, 246 Md. 23, 226 A. 2d 887 (1967), the wife sued for divorce alleging desertion by the husband. He in turn filed a cross bill charging the wife with adultery. The chancellor granted the wife a divorce a vinculo. The Court of Appeals reversed.

The Court concluded that the evidence justified the chancellor’s finding the husband guilty of desertion. But the Court found itself constrained by the doctrine of recrimination from affirming the decree. At 35, the Court said:

“However, we must hold that the chancellor erred in granting a decree of divorce a vinculo matrimonii in favor of the appellee against the appellant for the reason that the case at bar presents the matter of recrimination working to the disfavor of the adversaries. Both the husband and wife are guilty of marital offenses of equal magnitude which precludes either spouse from obtaining a divorce from the other. Each has proven the other party guilty of marital offenses which would have warranted a decree a vinculo matrimonii being granted in their favor, if it had not been for their own dereliction.
“The issue of recrimination in the case at bar is controlled by Courson v. Courson, 208 Md. 171, 117 A. 2d 850 (1955), a case wherein Judge Hammond (now Chief Judge), writing the opinion for the Court, included a comprehensive analysis of the legal effect of recrimination in divorce proceedings in Maryland.”

More recently the continued applicability of the doctrine of recrimination in culpatory divorce cases was affirmed by this Court. In Zell v. Zell, 12 Md. App. 563, 280 A. 2d 22 (1971), the husband filed for divorce on the ground of voluntary separation, Art. 16, § 24, then amended his bill to include an allegation of the wife’s adultery. The chancellor granted the husband a divorce a vinculo and the wife appealed. She argued that the decree was barred by proof of the husband’s adultery. At 566, this Court said:

“It is entirely possible, as argued by appellant, that the Chancellor did base his decree upon the wife’s adultery and if there were no other evidence in the case than the wife’s adultery as a ground for divorce, we would be compelled to set aside the decree under the doctrine of recrimination because of the proof of the husband’s adultery, technical or otherwise. See Nelson, Divorce and Annulments (2d ed.) Sec. 5.02. The doctrine of recrimination is still alive in this State and under it either spouse is precluded from obtaining a divorce from the other where each is guilty of a culpatory marital offense which would entitle the other to a divorce a vinculo matrimonii. See Matakieff v. Matakieff, 246 Md. 23, 35; Courson v. Courson, 208 Md. 171.”

But we went on to observe that recrimination is not available as a defense to a suit based on the statute permitting divorce founded on voluntary separation. See also Flanagan v. Flanagan, 14 Md. App. 648, 655, 288 A. 2d 225 (1972).

Nor is the defense of recrimination based on the commission of adultery by the party seeking the divorce any less effective because his adultery occurred later. The Court of Appeals said in Dougherty v. Dougherty, 187 Md. 21, 48 A. 2d 451 (1946), at 31:

“The law is established that a husband who has committed adultery is absolutely barred from a divorce on the ground of adultery or any other matrimonial offense committed by his wife, even though he may have committed the adultery after he left his wife on discovering her offense.”

The nature of evidence required to prove adultery in divorce cases was discussed at length in Dougherty v. Dougherty, supra, where the Court of Appeals said, at 27-28:

“It is an established rule that the burden of proof in a suit for divorce is upon the complainant, and where adultery is charged the evidence must establish affirmatively that the alleged offense was committed. It is not necessary, however, to establish the charge of adultery by direct evidence of the commission of the act, for because of the clandestine nature of the offense it is rarely possible to obtain evidence of the commission of the act by the testimony of eyewitnesses. The offense may be inferred from the circumstances if the inference is the only natural and logical deduction to be drawn therefrom. To prove adultery, the circumstantial evidence must clearly establish (1) a disposition on the part of the defendant and the paramour to commit adultery, and (2) an opportunity to commit the offense.”

More recently, and perhaps more succinctly, the Court said, in Breault v. Breault, 250 Md. 173, 242 A. 2d 116 (1968), at 178:

“It is the established law of this state that where divorce is sought on the ground of adultery that the adultery may be shown by circumstantial evidence and that an actual act of adultery need not be witnessed. [Citations omitted.] However, to establish adultery the circumstantial evidence must clearly establish (1) a disposition on the part of the defendant and the paramour to commit adultery, and (2) an opportunity to commit the offense. [Citations omitted.]”

Whether asserted as a defense or as a ground for relief, when adultery is the issue in a civil case the elements to be proved and the standards of proof are the same. Abare v. Abare, 221 Md. 445, 157 A. 2d 427 (1960); Burger v. Burger, 204 Md. 495, 104 A. 2d 923 (1954); Dougherty v. Dougherty, supra.

The present rule relating to corroboration in divorce cases is found in Code, Courts Art., § 10-901. It applies only to the testimony of the plaintiff (or the counter plaintiff). Testimony of a defendant or of any non-party stands the same in divorce cases as in any other case.

The chancellor characterized the testimony of Mrs. Easterlin as “sketchy and uncorroborated”. He cited and quoted from Stenger v. Stenger, 14 Md. App. 232, 286 A. 2d 552 (1972) where we said, at 240:

“For the purposes of our decision we will assume, without deciding, that corroboration is necessary to establish adultery as a recriminatory bar to an absolute divorce.”

Although adultery was not the question involved, we said in Binder v. Binder, 16 Md. App. 404, 297 A. 2d 293 (1972), at 410:

“We should point out that a party who asserts an affirmative defense, but does not become a cross plaintiff seeking affirmative relief, is not subject to the statute requiring corroboration.”

To the extent that he construed the law as requiring corroboration of Mrs. Easterlin’s testimony, we hold that the chancellor erred. To the extent that he rejected her testimony because he considered it sketchy or otherwise insufficient, we hold that he was clearly erroneous. We note too that there was no intimation in the opinion that the testimony was untruthful or biased.

Mrs. Easterlin, a 47 year old housekeeper, was a native of Chile, and had worked for some years for her embassy. If her testimony was sometimes less than clear, the reason may well have been her limited capacity to express herself in the English language. If her testimony exhibited any bias, it was in favor of Mr. Sami. She worked for Mr. Sami for a month in the Fall of 1973, when the children were there, and for four months, April to July, in 1974, when the children were not there.

Under questioning by the court Mrs. Easterlin related numerous occasions when Mr. Sami had a guest or guests in the house. Many of them appeared to be perfectly proper social occasions. For example:

“Q What can you remember about any dates when he brought home ladies for dinner or a lady for dinner?
“A Yes. He brought some lady called Ann. I call her Ann from French because she is from French.
“Q What happened, what did you observe happening between Mr. Sami and the French lady named Ann?
“A They eat dinner and do some drinking and until I finish the dinner, I finish my job, they went to the living room to talk. I left to my room. I don’t know what happened.
“Q This lady came more than once?
“A Yes, three or four times. One time she played tennis with him and she took shower in his room.
“Q She took a shower?
“A Yes, in his room.
“Q Well was he in the room when she took the shower?
“A No, sir. He was in the garden.”

She described a young lady named Judy, and her visits to the house. The transcript then reads:

“Q Now were there any other ladies who came to his house?
“A I saw the one lady there. Mr. Sami called me and said, ‘Flor, do not cook nothing for me. Don’t worry for my dinner because I will come in later.’ Next morning he say, ‘Good morning, Flor.’ ‘Good morning, Mr. Sami.’ He say, ‘Make a breakfast for two because I have a friend.’ I surprised. The first time somebody sleep there. I believe some lady, very tall lady, blond hair, very corpulent. She is very embarrassed when I am too embarrassed because this is the first time I see Mr. Sami sleeping with lady there. She drink her coffee and he drink coffee too and they left. He did not talk nothing about her. He did not mention.
“Q Were you introduced to her?
“A Yes.
“Q What is her name?
“A I do not remember, sir. I am very embarrassed. The lady was too.
“Q Well you said she slept there. Where did she sleep, if you know, in what room?
“A I suppose in his room because Sophia —
“MR. KUDER: I object to her supposing.
BY THE COURT:
“Q Did you see where she slept?
“A Only the bed of Mr. Sami was messed. I made the bed. The room — everything was also straightened and I cleaned the children’s room. Nobody sleep there. Then in the bathroom that Mr. Sami use there was only one towel to dry his body. That day there were two. There were two bed pillows, two pillows in the bed. I have experience. His bed sleep two persons. Two persons sleep in his bed.
“Q You say one bed was used and the other was not?
“A He only use one bed.
“Q Just one bed had been slept in?
“A Yes, sir, because the children’s rooms were closed. He does not want to open the door because he upset.”

After the witness told how a not-so-young but pretty Chilean lady was there for dinner, the questions and answers continued:

“Q Now were there any other ladies?
“A Yes. The lady, the last lady came, Ann. She came from Scotland.
“Q She is Ann from Scotland?
“A She is from Scotland. She is young lady too.
“Q Maybe in her twenties?
“A No, more than twenties, twenty-five or twenty-seven.
“Q Did you see anything happen between Mr. Sami and Ann of Scotland?
“A Yes. I saw her more. They don’t have more discretion. She is more lonely than him.
“Q What happened? What did he do and what did she do?
“A She came and helped me cook. She helped me out. Mr. Sami invited his neighbor for dinner. Some time Mr. Sami had dinner alone with her. They had one cup of coffee took to his room and shut the door. I don’t know what happened. I leave to go to my room too.
“Q Who went into his room?
“A Mr. Sami.
“Q Just Mr. Sami?
“A Mr. Sami with Ann from Scotland.
“Q You saw the two of them go into his room?
“A Yes.
“Q What time of night?
“A After dinner.
“Q 9:30?
“A I saw that two or more times.”
“Q And you saw them going to — what room was it?
“A Into his room.
“Q What kind of a room is that?
“A His room.
“Q Is it a study or bedroom?
“A It is a bedroom.
“Q Did he see you? Were you present when they walked into the room?
“A Yes, I am in the kitchen and he told me, ‘Good night,’ and I left. He went to his room with Ann.
“Q You do not know what happened after that?
“A No, sir. I never don’t want to see nothing.”

Cross-examination of the witness by counsel for each of the parties added little, and did not detract from the facts as we have recited them.

We note here that the chancellor apparently misread the testimony, and commented that Mr. Siland, a friend and fellow worker of Mr. Sami, lived in the house from March 21st, except for 10 or 12 days he was away on a trip. The testimony was that he came on June 21st, and was there during Mrs. Easterlin’s last month, except for his trip abroad.

The evidence we have quoted is much more than a mere showing of disposition and opportunity, which is universally accepted as sufficient circumstantial evidence that adultery was committed. Here there was direct proof of facts which permit no other conclusion but that on several occasions a woman shared Mr. Sami’s bed with him for the night. We consider it highly significant that Mr. Sami, who was present in court and heard this damning testimony against him, neither denied it nor attempted to explain it. In Chalkley v. Chalkley, 236 Md. 329, 203 A. 2d 877 (1964), the Court of Appeals said, at 333:

“When a party to a case refuses to take the stand and testify to the facts peculiarly within her knowledge, this Court is warranted in drawing an inference that the testimony would be unfavorable.”

That part of the decree which granted a divorce to Mr. Sami must be reversed.

Full Faith And Credit In A Child Custody Case

Two or more states may have, at the same time, jurisdiction to grant, deny, or change the custody of the same children. Schwartz v. Schwartz, 26 Md. App. 427, 338 A. 2d 386 (1975); Seidlitz v. Seidlitz, 23 Md. App. 327, 327 A. 2d 779 (1974). The jurisdiction of each state is determined by its own laws, subject to the Constitution and laws of the United States, and is no less effective because it is not exclusive. For example, Maryland’s jurisdiction under Code, Art. 16, § 66 (f), apparently applicable here, may be exercised regardless of where the children may be, and is limited only by the full faith and credit clause of the U.S. Constitution.

The Florida proceeding began with a petition filed by Mrs. Sami on 5 February 1974 for alimony without dissolution of marriage, and custody of children. An ex parte order granting her temporary custody was entered on the same day, some three days before the ex parte order in Maryland giving Mr. Sami pendente lite custody. •

Mr. Sami entered the Florida case with a habeas corpus proceeding, asserting the order of the Maryland court, and challenging the jurisdiction of the Florida court. At a hearing held there on 15 March 1974 the Florida court ruled that it would conduct a full hearing on the merits. Further hearings were held on four more days during April and May, the last on 29 May. Both parties were before the court personally and with counsel, and each testified, and presented several other witnesses. On 5 June 1974 the Florida court entered an order denying Mr. Sami’s petition for a writ of habeas corpus, and granted temporary custody of the children to Mrs. Sami. Mr. Sami appealed that order. The record does not show the disposition of his appeal.

In a case with many factual parallels to the case now before us, Rethorst v. Rethorst, 214 Md. 1, 133 A. 2d 101 (1957), the Court of Appeals held than an award of custody by a California court was entitled to full faith and credit in Maryland where: both parents and the children were within the territorial jurisdiction of the California court; the Maryland court had made no final adjudication of custody but had merely entered an ex parte interlocutory order; and the party contesting the award appeared personally and participated fully in the California proceedings.

In its opinion the Court said, at 12-13:

“In actual result the decree of the Circuit Court denied full faith and credit to the California decree on the subject of custody, apparently on the ground that Maryland, and not California, had jurisdiction over the children. This view of the law, if supported by the facts, is in accord with the rule set forth in the Restatement, Conflict, of Laws, § 32, which was recognized and substantially quoted in Ross v. Pick, 199 Md. 341, 348, 86 A. 2d 463, in which this Court said: ‘It is true that a minor child’s domicil, in the case of divorce of its parents, is that of the parent to whose custody it has been legally given; and if there has been no legal fixing of custody, its domicil is that of the parent with whom it lives-, but if it lives with neither, it retains the father’s domicil.’ (Italics supplied.) We believe that this rule of the Restatement represents the generally accepted view on this subject. Beale, Conflict of Laws, Vol. 1, § 32.1, points out that under the older law, if the parents were living apart against the will of the father, but were not divorced, and the child was with the mother, the child's domicil continued to be that of the father. He goes on to say that under ‘the correct modern view’, if the parents are living apart because of the father’s fault, a child living with the mother takes her domicil.
“The California court took the view that both it and the Maryland court had jurisdiction to make a custody order, and that the order of whichever court might first enter a final order in an adversary proceeding would be controlling. It does not seem to have considered the rule stated in § 32 of the Restatement of Conflict, but proceeded to award the custody of these children as it deemed proper. Reprehensible as Mr. Rethorst’s conduct in taking the children from the mother by what amounts to trickery may have been, all of the facts on that matter could have been presented (and, we believe, were presented) to the California court. The parents and the children were all within its territorial jurisdiction, no final adjudication of the rights of custody had been had in Maryland (only an ex parte, interlocutory order had been signed), and Mrs. Rethorst appeared personally in the California suit and participated fully in those proceedings. Any questions based upon domicil could have been presented. No matter how much we may deplore a determination which has the effect of rewarding the husband’s trickery, the judgment of the California court concludes the question of custody and is entitled to full faith and credit here, and is not subject to collateral attack. As is said in the Restatement, Conflict of Laws, Chapter 5, Section 147, Comment a, pp. 212-213: ‘An award of custody, like any other judgment or decree of a competent court, is entitled to recognition and enforcement in other states. * * * It is, therefore, conclusive of the status of the child at the time the decree was rendered and the merits of such an award cannot be re-examined either in the state where rendered or in another state.”

In another somewhat parallel case, Schwartz v. Schwartz, supra, we applied the same principle. We said, at 431-32:

“By participating in the Florida custody hearing, Mrs. Schwartz had a full opportunity to contest the jurisdiction of the Florida court. If she raised that issue and disagreed with the chancellor’s decision, her remedy was to appeal, a remedy which she did not pursue. It matters not whether she actually litigated the jurisdictional issue there, qnly that she had the opportunity to do so.
“Having had her ‘day in court’ on the jurisdictional issue, Mrs. Schwartz is barred by res judicata from now collaterally attacking the Florida judgment. Rethorst, 214 Md. at 13. The Florida decree is entitled to full faith and credit.”

Under the law which we must apply, we may not even consider whether the Maryland order or the Florida order may be right or may be wrong on the question of custody of the Sami children. The question has been decided by a Florida court in an order to which the courts of Maryland must extend full faith and credit. If the Florida decision is erroneous, it is subject to review on direct appeal from the Florida judgment through the Florida courts, and, if necessary, to the Supreme Court of the United States. Johnson v. Johnson, 199 Md. 329, 336, 86 A. 2d 520 (1952).

There is no contention here that the custody decree appealed from was made upon a finding of a change in circumstances after the Florida order of 5 June 1974.

The order dealing with custody of the children of the parties must be reversed.

The Contempt of Court Order

A hearing was scheduled for 7 February 1974 on a show cause order relating to custody pendente lite. By orders of 21 January and 25 January the court directed Mrs. Sami to have the children present in court for that hearing. She did not attend the hearing, nor were the children present. The docket shows an entry on 7 February: “Defendant’s oral motion to find Plaintiff in Contempt * * * .” The transcript records that after the hearing was concluded the court said:

“The court finds that the plaintiff, Helen Adams Sami, is in willful and direct contempt of a lawful order of this Court; namely, our orders of January 21 and January 25, 1974.
“And in compliance with the rules of the Court pertaining to contempt we are directing the Clerk file in this proceeding an order of the Court which states the reasons for our holding the plaintiff, Helen Adams Sami in contempt.”

On that same date a written order was filed. After appropriate recitals the order “ADJUDGED, that the defendant, Helen Adams Sami, is in direct contempt of this Court * * * .”

The record on the contempt aspect of this case is too bare to permit an extensive consideration. Under Subtitle P of the Maryland Rules, and under State v. Roll and Scholl, 267 Md. 714, 298 A. 2d 867 (1973) and the other authorities, it seems clear that if there was a contempt it was a civil contempt, at least in its inception, and that under Rule PI it was constructive, not direct. And indeed, no punishment has been imposed.

We hold that the question of contempt in this case is still at the starting gate, and that there cannot be a valid adjudication that Mrs.. Sami is in contempt until there has been full compliance with all procedures required by the circumstances.

Sequestration Orders and Injunctions

The appeal in No. 1006 was taken from ex parte orders which appear to have been superseded by later orders from which the appeal in No. 1099 was taken. The appeal in No. 1006 will be dismissed as moot.'

Two post trial orders signed on 27 January 1975 are the subject of the appeal in No. 1099. One recited the failure of Mrs. Sami to transfer physical custody of the children in accordance with the order of 29 October 1974, and asserting the court’s authority to sequester real or personal property of a party to compel compliance with the court’s decrees, ordered that Mrs. Sami’s interest in two parcels of real estate in Maryland be sequestered.

The companion order enjoined Mrs. Sami from removing any personal property from either of the two parcels of real estate.

With our decision in No. 918 the reason for the orders does not exist, and they will be reversed.

In Appeal No. 918, those parts of the decree of 29 October 1971 which award a divorce to Mohammad Sami and award him custody of the turn minor children of the parties are reversed.

The adjudication of 7 February 1971 that Helen Adams Sami was in direct contempt of the court is vacated.

Appeal No. 1006 is dismissed.

In Appeal No. 1099 the orders dated 27 January 1975 are vacated.

Appellee to pay costs.