author: Liss, J.,

text:
    MAYOR AND CITY COUNCIL OF BALTIMORE v. MARTHA AUSTIN, etc.
    [No. 179,
    September Term, 1978.]

      Decided November 3, 1978.

    The cause was argued before Lowe, Liss and MacDaniel, JJ.

      William Hughes, Associate City Solicitor, with whom were Benjamin L. Brown, City Solicitor, and William R. Phelan, Jr., Assistant City Solicitor, on the brief, for appellant.

      Paul D. Bekman, with whom were William H. Engelman and Kaplan, Heyman, Greenberg, Engelman & Belgrad, P.A. on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

The Mayor and City Council of Baltimore, appellants (hereinafter “the City”), appeals from judgments entered against them in favor of the appellee, Martha Austin, as mother and next friend of Camille Austin, deceased, and as personal representative of the estate of Camille Austin.

The case arises out of a tragic accident which resulted in the death by drowning of Camille Austin, aged five. In July of 1974, the Department of Recreation and Parks of the City of Baltimore, through the Bureau of Recreation, one of its subdepartments, operated a day camp for children located at the City’s Cahill Recreation Center. The day camp was designated as Camp Cahill. Enrollment in the camp was open to children who applied from a particular area of Baltimore and a fee of $3.50 a week was set as the charge for participation in the program. The payment of the weekly fee was in some instances adjusted or waived, and children were permitted to participate if they were able to pay only part of the fee or even if they were not able to pay any fee at all. Nonpaying campers were offered the same services as those who paid and persons' not enrolled in the day care program were permitted to participate in camp activities at Cahill Center. Campers going on bus trips arranged by the camp director paid an additional fee which was set at different rates for campers and noncampers.

The director of Camp Cahill was required to prepare and submit for approval a proposed budget to the Department of Recreation and Parks. The budget, as prepared, contemplated receipts of $7,000.00 to be paid by 250 campers at the rate of $3.50 per week for eight weeks. Expenditures included the cost of: hiring three additional leaders (for a total number of six leaders); providing milk or juice each day; hiring transportation for regular and special field trips; and purchasing arts and crafts supplies, postage and camp equipment. All money collected by the camp was remitted to the Department of Recreation, and all bills were paid by the Department. The program was subsidized by the City.

On July 19, 1974, a special chartered bus transported to Greenbrier State Park those members of the Cahill Camp who had paid the required bus fees and who had been given permission by their parents or guardians to participate in the trip outside the City of Baltimore. Greenbrier State Park is in Washington County, Maryland, approximately 90 miles from Baltimore. Camille Austin was one of the campers on the trip. Although Camille could not swim, she was permitted to go into the water without supervision. She drowned. It was admitted that no instructions, guidelines or special operating procedures were promulgated by the camp director for the safety of the children who were allowed to go into the water.

Clarice Patterson, the Senior Director of Cahill Recreation Center at the time of the accident, reported to a District Supervisor who in turn reported to the Superintendent of the Bureau of Recreation. The Superintendent was under the supervision of the Director of Parks who was answerable to the Mayor and City Council. Ms. Patterson, as the head of Camp Cahill, was charged with administering the programs at the camp within guidelines issued by the Department. Scheduled trips were arranged by Ms. Patterson, and it was also her responsibility to arrange for transportation to and from the designated trip area. The camp leaders were under her direction and control.

As a result of the death of Camille Austin, a two-count suit was filed by her mother as next friend and as personal representative of her daughter’s estate. Martha Austin sought damages from the City, in the first count for the alleged negligence of the City that resulted in Camille’s death. The specific claim in that count was for the loss of Camille’s services and for the deprivation of the care, comfort and companionship of the deceased. In the second count, the appellee claimed damage for the decedent’s pain and suffering, and also claimed damages for medical and funeral expenses.

The City filed a motion raising preliminary objection in which it sought a ruling that the operation of Camp Cahill by the Bureau of Recreation was a governmental function and that the City was thereby immune to suit. A hearing was held before Judge James W. Murphy, and after argument, the court denied the City’s motion. Subsequently, the City filed a general issue plea, and the case came on for trial before Judge J. Harold Grady and a jury. At the close of the City’s case, it moved for a directed verdict raising issues of governmental immunity, and primary and contributory negligence. The motion was denied.

At the close of the entire case, appellant’s motion for a directed verdict on the same issue was renewed and again denied. The jury returned a verdict in favor of the appellee on the first count, in the amount of $1,435.10, and for $150,000.00 on the second count. Appellant filed a motion non obstante verdicto, or in the alternative, for a new trial. These motions were denied. The judgments in favor of the appellee were made absolute in favor of the appellee, and. it is from these judgments that this appeal was filed.

Two issues are raised by this appeal:

1. Did the court err in ruling that the operation of Camp Cahill by the City was not a governmental function?
2. Did the court err in allowing the appellee to use the deposition of Clarice Patterson, not a party to this suit, as an adverse witness?

Since the second issue raised by the City is an evidentiary one, we will, for the sake of convenience, consider it initially. Appellant contends that the trial court committed reversible error in permitting appellee’s counsel to read into evidence, during appellee’s case in chief, portions of the deposition of the director of Camp Cahill as if she were an adverse witness. The issue was raised as a preliminary matter before the trial judge who conducted a hearing and ruled that the reading of the deposition was permissible in the appellee’s case.

Maryland Code (1974), Section 9-113 of the Courts and Judicial Proceedings Article, provides: “In a civil case, a party or an officer, director, or managing agent of a corporation, partnership, or association may be called by the adverse party and interrogated as on cross-examination.” (emphasis added)

Rule 413 (a) (2) of the Maryland Rules of Procedure states:

The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent or a person designated under Rule 405 b to testify on behalf of a public or private corporation, partnership, association or governmental agency which is a party may be used by an adverse party for any purpose, (emphasis added)

The Courts of Maryland have repeatedly held that Section 9-113, supra, must be strictly construed. Nottingham Village, Inc. v. Baltimore County, 266 Md. 339, 292 A. 2d 680 (1972); Williams v. Wheeler, 252 Md. 75, 249 A. 2d 104 (1969); Mike v. Service Review, Inc., 19 Md. App. 287, 299 n.6, 310 A. 2d 585, 592 n.6 (1973).

The appellant and the appellee agree that the legal question here involved is whether Clarice Patterson was a “managing agent” for the purpose of this case. The testimony offered by the appellee revealed the following: Ms. Patterson was the director of Camp Cahill and had been its director for 14 years; she promulgated the rules for the camp; she was responsible for the enforcement of the rules; she prepared the budget for the camp; she suggested the number of employees needed to staff the camp; she assumed responsibility and control for the scheduling of trips away from camp property, and she obtained and provided transportation for these trips.

The City, in cross-examination of Ms. Patterson, elicited testimony from her that while she had the responsibility of setting the rules which governed Camp Cahill, that these rules were required to follow the guidelines issued by the Department of Recreation and Parks and she was under the supervision and control of the Department’s supervisors. All field trip programs were required to be approved by the Superintendent. The camp brochure, while prepared by Ms. Patterson, was subject to approval by her superiors. The staff at the Center was appointed by the Department, and the director of Camp Cahill had no power to hire employees.

From these factual findings, the trial court concluded that Ms. Patterson was a “managing agent” within the context of the statute and rule which we have quoted.

Black’s Law Dictionary 86 (4th ed. 1951) defines a managing agent as “a person who is invested with general power, involving the exercise of judgment and discretion, as distinguished from an ordinary agent or employee, who acts in an inferior capacity, and under the direction and control of superior authority____”

The case which most nearly approaches the factual situation in the case at bar is Scott County School District I v. Asher, 312 N.E.2d 131 (Ind. App. 1974), aff’d, 324 N.E.2d 496 (1975). In that case, a high school student sued his school district to recover damages for an injury sustained by the student in his industrial arts class as a result of an accident involving a bench saw. The Indiana Rules of Procedure, Trial Rule 32(A)(2) permitted an adverse party to use a deposition for any purpose for “anyone who at the time of taking the deposition was an officer, director, or managing agent... of an organization, including a governmental organization____” The court stated the test to be applied in determining whether a deponent was a management agent to be as follows:

The test as to whether one serves in such capacity to a party so that the party may be deposed through him as managing agent is not title, but the functions performed in furtherance of the party’s activities and interest. If the person has general powers to exercise his judgment and discretion dealing with corporate matters he may be deemed a managing agent. 312 N.E.2d at 135.

The Indiana Court of Appeals held that as the teacher was responsible for determining the type of saw to be purchased for the shop class, as well as the safety features to be included, that he was a managing agent within the meaning of the deposition rules.

Cases in our own jurisdiction are of comparatively little help in resolving this issue. Mike, supra, merely states that the witness sought to be called as an adverse witness was not shown to be an officer, director or managing agent of the corporate defendant.

In Chertkof v. Philadelphia, B. & W. R. R., 254 Md. 557, 255 A. 2d 14 (1969), the Court approved the trial court’s refusal to permit two individuals to be called as adverse witnesses on the basis that neither was an “officer, director or managing agent” of the railroad. No factual basis for that conclusion was stated. Conversely, in Honga River Gun Club, Inc. v. Montchester Gun Club, Inc., 20 Md. App. 335, 315 A. 2d 810 (1974), we held the head caretaker and guide of a gun club to be a managing agent of the club, again without any explanation for the factual holding.

In other jurisdictions, the acting police chief and head jailer was held to be a managing agent for a city, Hodgins v. Oles, 505 P. 2d 825 (Wash. App. 1973); a manager of a defendant’s claim department and defendant’s chief surgeon were held to be managing agents of a defendant railroad, Krauss v. Erie Railroad Co., 16 F.R.D. 126 (S.D.N.Y. 1954).

We believe that Ms. Patterson was, in fact, the managing agent of the City so far as the Cahill Center program was concerned. She had wide authority and discretion, and while it is true that she was under the supervision of her superiors, her knowledge of the day-to-day operation of the Center was far more direct and superior to that of the Superintendent.

Assuming, arguendo, that she was not a managing agent, and that the trial court erred in allowing the use of her deposition in the appellee’s case in chief, the error was harmless. Ms. Patterson appeared as a witness in the case, and her testimony was virtually identical to that read from the deposition. The Court of Appeals has held that if the trial court erred in admitting evidence through a witness, and if the same testimony is produced by other admissible testimony, that the error is harmless. See Glen Burnie Shopping Plaza, Inc. v. Schreiber Bros., Inc., 220 Md. 303, 152 A. 2d 807 (1958).

In Seaboard Coastline Railroad Co. v. Hughes, 521 S.W.2d 558 (1975), depositions were taken from two conductors whose train was involved in an accident. The trial court ruled they were managing agents and permitted their depositions to be read to the jury. The Tennessee Supreme Court held the trial court was in error in ruling that the conductors were managing agents, but affirmed the judgment on the ground that the error was harmless and nonprejudicial. The court said: “[Sjince one of the conductors testified and since his testimony, along with the testimony of other witnesses covered the essential areas of the non-testifying conductor, we are unable to say that this error affirmatively affected the outcome of the trial.” Id. at 563.

We, therefore, find no reversible error in the trial court's rulings on this issue.

We now address ourselves to the issue of whether the trial court erred in holding that the operation of Camp Cahill by the City was not a governmental function.

It should be noted, preliminarily, that the appellant has raised no issue on appeal as to the finding of the jury that the City was negligent, and that this negligence caused the death of Camille Austin; nor has the appellant questioned, in this appeal, the reasonableness of the verdicts awarded by the jury.

Appellee has in her brief and argument presented an emotional appeal for the judicial abrogation in Maryland of the doctrine of governmental immunity for torts committed by municipal employees. She urges that we join the growing number of states which have, in the past few years, struck down the doctrine of municipal immunity from tort liability.

The application of the doctrine of governmental immunity has resulted in many cases of unfair and unjust denial of the rights of citizens who have been injured by the negligence of municipal agents and employees. However, we are bound to follow the pronouncements of our own Court of Appeals. That Court has consistently refused to renounce the doctrine of sovereign immunity, and has stated that if the standard is to be abandoned or modified, it is the responsibility of the Legislature to do so. In Duncan v. Koustenis, 260 Md. 98, 104, 271 A. 2d 547 (1970), the Court of Appeals declined to abrogate governmental immunity by saying: “[Bjecause the doctrine is so deeply ingrained in the law of Maryland, this Court has specifically declined to alter it without a legislative mandate. Weisner v. Board of Education of Montgomery County, 237 Md. 391, 395, 206 A. 2d 560 (1965).” Similarly, in Robinson v. Board of County Commissioners, 262 Md. 342, 278 A. 2d 71 (1971), the Court was faced with the identical issue. The court responded:

Robinson, con brio, importunes us to renounce those tenets “deeply ingrained in the law of Maryland,” to enlist in the crusade against sovereign immunity and to join the ranks of those courts already marching under the pennons of the law professors. We shall not do so because we have said quite often that this is a province of the legislative bodies we ought not to invade. 262 Md. at 345.

In view of the adherence by the Court of Appeals to its position that any change in the law in this context must be made by legislative fiat, we must decline to disturb the doctrine of governmental immunity for tort as it presently exists in Maryland. v

We are still left, however, with the determination of whether the defense of governmental immunity is available to the City under the circumstances of this case. We must determine whether the operation of Camp Cahill by the Bureau of Recreation and Parks was the exercise of a governmental or proprietary function as the availability of the governmental immunity defense is dependent on that determination.

The principal authorities on torts and municipal corporations have devoted a great deal of attention to the distinction between the governmental and proprietary functions of municipal governments. They have noted that the modern trend of judicial decisions is to restrict the doctrine of municipal immunity from tort liability. 2 Harper and James Torts 277, Comment to Section 29.1, n.2 (Supp. 1968); 18 E. McQuillin, Municipal Corporations Section 15.02 (3d ed. 1971); 57 Am. Jur.2d Municipal, Etc., Tort Liability Section 30 (1971).

W. Prosser, Torts Section 131 (4th ed. 1971), comments on the distinction between the legal theories as follows: “Certain functions and activities, which can be performed adequately only by the government, are more or less generally agreed to be ‘governmental’ in character, and so immune from tort liability.” Id. at 979. He gives as examples of these functions: fire and police protection, removal of garbage and other health functions. He goes on to say:

On the other hand, when the city performs a service which might as well be provided by a private corporation, and particularly when it collects revenue from it, the function is considered a “proprietary” one, as to which there may be liability for the torts of municipal agents within the scope of their employment. Id. at 980-81.

Similarly, 2 Harper and James, Torts Section 29.6 (1956) states the criteria to which the courts have looked in determining whether an activity is governmental or proprietary. They say:

Those most often invoked are (1) whether the function is allocated to the municipality for its profit or special advantage or whether for the purpose of carrying out the public functions of the state without special advantage to the city, and (2) whether the function is one historically performed by government. Id. at 1621.

18 E. McQuillin, Municipal Corporations, supra, Section 15.113, at 438, predicts:

[I]n view of the tendency of late decisions and the development of the law on this subject, the rule ultimately may prevail that in maintaining parks, playgrounds, bathing pools and beaches, and like recreations, the City should be held liable on the same basis as a private person or corporation.

The Court of Appeals has on several occasions recognized the difficulty in determining whether a particular function is proprietary or governmental. In Mayor of Baltimore v. Eagers, 167 Md. 128, 173 A. 56 (1934), the Court said:

It is often difficult to determine in a particular instance whether the duty involved is in the exercise or neglect of the municipality’s governmental or political functions or of its ministerial and private or corporate functions. The decisions do not furnish a satisfactory test, as they are conflicting in their reasoning and conclusions. 167 Md. at 136.

In subsequent decisions, the Court has reconfirmed its problems with the proprietary-governmental distinction as in Mayor of Balto. v. State, ex rel. Ahrens, 168 Md. 619, 179 A. 169 (1935), where it said: “But as has been stated, the line of demarcation between private, corporate, and ministerial, and governmental, political, and discretionary activities or functions of municipalities is difficult to discern, and more difficult to define.” 168 Md. at 625. The Court, in E. Eyring & Sons v. Mayor of Baltimore, 253 Md. 380, 382, 252 A. 2d 824 (1969), quoted Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test, 22 Va. L. Rev. 910 (1936), as follows: “The rules sought to be established [in determining whether a given function is governmental or proprietary] are as logical as those governing French irregular verbs.”

The Court of Appeals has provided some guidance by way of tests and criteria to assist in the determination of whether a particular function is governmental or proprietary. In Mayor & City Council v. Eagers, supra, where the Court permitted a decedent’s administrator to bring an action against the City of Baltimore when the decedent was killed by a limb of a tree falling upon him while he was walking in a public square maintained by the City, the Court said:

If the neglect or wrongful act was in the course of the performance of a purely governmental duty which had been imposed upon the municipality as a governmental or public agency by legislative enactment, there would be no liability in tort in favor of an individual who had been injured. This doctrine has general recognition, and various grounds have been assigned in its support, notably, that, at common law, no civil action would lie against a municipal corporation for the neglect of a public duty imposed upon it as the agent of the public by general law for the benefit of the public generally, and from the performance of which the municipal corporation would receive no profit or special advantage, (citations omitted) If, on the contrary, the power given and the duty enjoined related to the local or special interests of the municipality, and be imperative, and not discretionary, legislative, nor judicial, and the wrongful act is done in the performance of such a duty, then the act is said to be done in the private or corporate capacity of the municipality as distinguished from an act done in its political and governmental capacity as an agency of the state, and the municipality must answer civilly for the negligence or want of skill of its agent or servant in the course of his employment, if the wrongful act result in injury to another, who is free from contributory negligence, (citations omitted) Id. at 135.

Later, in Reed v. Mayor of Baltimore, 171 Md. 115, 188 A. 15 (1936), where a patron of a city-owned market was permitted to bring an action against the City for an injury sustained on one of the market passageways, the Court said:

Moreover, since the purpose of the market is for public use, if the city has reserved to itself the power of controlling and keeping open the passageways therein, it would be liable to any one who, while using due care, sustained an injury because of the neglect or default of the city in keeping such passageways reasonably safe for public travel. Its duty to the public using the market is in this respect comparable to that of a department store owner toward his patrons and customers who are invited to enter it for the purpose of dealing. In such a case, the appellant would have been an invitee of the city, to whom it owed the duty of keeping its walk-ways in a reasonably safe condition for public travel, (citations omitted) 171 Md. at 119.
It seems clear that appellee, in owning the market and deriving a revenue from its stalls by way of rentals, was acting within its proprietary or private character, and would, therefore, be liable for negligence, assuming that, under similar facts and circumstances, liability would exist as against an individual, (citation omitted) 171 Md. at 118.

In Mayor of Baltimore v. State, ex rel. Blueford, 173 Md. 267, 195 A. 571 (1937), the Court of Appeals stated:

Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature. 173 Md. at 276.

We restated these guidelines for determining governmental immunity when we said, in Herilla v. Mayor of Baltimore, 37 Md. App. 481, 378 A. 2d 162 (1977):

Is the act for the common advantage of all, without special corporate gain or monetary profit, devoid of any ingredient of private interest, and does it improve the public health and welfare?
If the answer to the test question is in the affirmative, the act is governmental in nature and immunity applies. Conversely, if the answer is in the negative, it is a proprietary function and immunity may not be successfully pleaded. 37 Md. App. at 489.

We are charged with the duty of applying these legal principles in the light of the factual circumstances which are a part of this case. Appellee urges that in considering one of the criteria for determining governmental or proprietary function that we scrutinize the Camp Cahill budget, which was offered as an exhibit in this case. That document indicates that the camp fees projected when the budget was proposed would, at least, generate sufficient funds to cover the day-to-day expenses of the camp. We do not believe, however, that these fees amounted “to a profit or emolument inuring to the municipality” nor did it create a “special corporate gain or monetary profit” to the City. It is obvious that in spite of the fees paid by the day campers, the City had a substantial capital investment in the Cahill Recreation Center, and that it was required to subsidize the day-to-day operation of the Center and the day camp.

We believe the operation of the day camp was an activity solely for the public good which tended to benefit the public health and was devoid of any private interest. We find no distinction between the operation of Camp Cahill and the numerous other public recreation activities of the Bureau of Parks and Recreation. It is clear that the general powers granted to the City under Article II, Section (21) of the Charter of Baltimore City authorized the establishment, maintenance, control and regulation of parks, squares, monuments and recreation facilities. Charter Article VII, Sections (61) through (64) spell out the general powers and duties of the Department of Recreation and Parks, and the operation of a day camp center is clearly authorized within these powers and duties.

We must recognize that the establishment of day camp facilities operating in congested areas of the city for the benefit of those children who would otherwise have no access to the programs offered is necessary for the public health, welfare and education. There can be no question that the programs offered are a needed alternative for our neglected poor children who would, if it were not for the camp opportunity, face conditions in the city which are intolerable.

The Court of Appeals, in Mayor of Baltimore v. State, ex rel. Blueford, supra, in deciding that the operation of a public swimming pool was a governmental function, quoted with approval from Heino v. City of Grand Rapids, 168 N. W. 512, 517 (1918), in an action for the accidental drowning of a small boy in a public pool, where the court said:

The constitutionally authorized function this municipality was exercising was without private gain to the corporation or to individuals, for purposes essentially public and of a beneficial character in furtherance of the common welfare in harmony with the general policy of the state, and was in its nature a governmental activity, whether it be put upon the ground of health, education, charity, social betterment by furnishing the people at large free advantages for wholesome recreation and entertainment, or all of them.

The Court went on to say in Blueford that its conclusion that the operation of the swimming pool was a governmental function was not affected by the fact that the duty of maintaining public parks was permissive and not mandatory on the municipality, nor by the fact that there was no specific authority for the operation of swimming pools, nor by the fact that a nominal fee was charged for the use of the pool.

The City’s election to furnish the day camp facilities to its citizens was a permitted exercise of its judgment as to the necessity for the program in the interest of the health, welfare and education of its children. To deny the City the protection of its cloak of governmental immunity in the operation of an activity necessary to the health, education and welfare of its children must have a chilling effect on the ability and willingness of the City to continue to furnish that vitally needed service in the future. We conclude that the trial court erred in finding that the operation of Camp Cahill was a proprietary function of the City and in refusing to grant the City’s motion raising preliminary objection.

We cannot conclude this opinion without what, we feel, is required to be said in good conscience. We perceive the result in this case to be eminently unfair, but one required by the present state of the law. Our reading of the record convinces us, as the jury was convinced, that the City’s employees failed to provide adequate supervision for the safety and protection of the unfortunate child who lost her life in this accident. Her parents are left without redress in the courts. We invite the Legislature’s attention to the question of whether this doctrine should continue to exist. We shall reverse, but justice suggests that the costs of this suit be borne by the appellant.

Judgments reversed; costs to be paid by Mayor and City Council of Baltimore.

      . Alabama (Jackson v. City of Florence, 320 So. 2d 68 (1975))
      Arkansas (Parish v. Pitts, 429 S.W.2d 45 (1968))
      Arizona (Stone v. Arizona Highway Commission, 381 P. 2d 107 (1963))
      California (Muskopf v. Corning Hospital District, 359 P. 2d 457 (1961))
      Colorado (Evans v. Board of County Commissioners, 482 P. 2d 968 (1971))
      Florida (Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (1957))
      Indiana (Brinkman v. City of Indianapolis, 231 N.E.2d 169 (1967))
      New Jersey (Willis v. Department of Conservation and Economic Development, 264 A. 2d 34 (1970))

        New Mexico (Hicks v. State, 544 P. 2d 1153 (1976))
      Pennsylvania (Ayala v. Philadelphia Board of Public Education, 305 A. 2d 877 (1973))
      Wisconsin (Holytz v. City of Milwaukee, 115 N.W.2d 618 (1962))
      District of Columbia (Spencer v. General Hospital of the District of Columbia, 425 F. 2d 479 (1969))


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    STATE OF MARYLAND v. REGINALD ROGERS et al. STATE OF MARYLAND v. AARON B. COPLEY et al. STATE OF MARYLAND v. ROBERT McGEE
    [No. 182,
    [No. 378,
    [No. 426,
    September Term, 1978.]
    September Term, 1978.]
    September Term, 1978.]

      Decided November 3, 1978.

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

      F. Ford Loker, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellant.

      George E. Bums, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

The appellees in these consolidated appeals escaped from lawful confinement in the Maryland House of Correction at Jessup, Anne Arundel County, Maryland. Each of the appellees was subsequently apprehended, returned to the custody of the Division of Correction, and indicted for the statutory offense of escape. Md. Ann. Code art. 27, § 139 (a). They continued their “struggle to escape” * by attacking the escape statute on the ground that it denied equal protection of the law to persons who escaped from any penal institution except those at Hagerstown, Maryland. Two judges of the Circuit Court for Anne Arundel County agreed with the appellees that the statute was unconstitutional and dismissed the indictments. The State, as it is permitted to do when an indictment is dismissed, appealed to this Court. On motion, we consolidated all the cases for the purpose of oral argument.

Appeal No. 182

Pursuant to then Md. Ann. Code art. 27, § 139 (a), Reginald Rogers, Matthew E. Walinski, Larry Woodhouse, Richard C. Harris, Preston Rich, Wilford Stovall, Brett Taylor, Neil H. Branch, Alvin Scott, and Vernon Hawkins were indicted by the Grand Jury for Anne Arundel County for the crime of escape. Each of the indictees filed a motion to dismiss on the ground that the statute under which they were charged was unconstitutional. The statute provided in pertinent part:

“(a) If any offender or person legally detained and confined in the penitentiary or jail, or house of correction, or reformatory, or station house, or any other place of confinement, in this State, escapes he shall be guilty of a felony and on conviction by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place, be sentenced to confinement in the penitentiary, jail or house of correction for whatever additional period, not exceeding ten years, as the court may adjudge. The sentence so imposed shall be consecutive to the sentence under which the inmate was originally confined and may not be suspended. However, for escapes from ' the Maryland Correctional Institution — Hagerstown or the Maryland Correctional Training Center — Hagerstown or any juvenile institution which have not involved an assault, the sentence may not exceed confinement for three years.” []

The movants directed their attack to the fact that section 139 (a) prescribed different penalties for escape depending upon the institution from which the escape was made. Anyone who unlawfully fled confinement in “the Maryland Correctional Institution — Hagerstown [(MCIH)] or the Maryland Correctional Training Center — Hagerstown [(MCTCH)] or any juvenile institution” when the flight involved no assault, was subjected to confinement for a period of time not exceeding three (3) years. All escapees from “any other place of confinement in this State,” were subject to a sentence of not more than ten (10) years. The movants vigorously contended that there was no rational basis for the distinction between MCIH, MCTCH, and the other institutions, and that because of the distinction without a difference, they were denied the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States and of Article 23 of the Maryland Declaration of Rights.

The motion was rejected by Judge E. Mackall Childs of the Circuit Court for Anne Arundel County because, as in Carter v. State, 38 Md. App. 400, 381 A. 2d 309 (1978), the movants “failed to offer any evidence regarding types of inmates or training other than to state that the Hagerstown facility is described in the 1973-1974 Maryland Manual as a ‘medium security institution’ as is the House of Correction at Jessup [from which the movants had made their unlawful departure]____” Judge Childs was of the view that a single statement in the Maryland Manual in which the “Hagerstown facility” and the House of Correction were both-characterized as “medium security institutions” was not sufficient to demonstrate that there was no rational basis for the legislative classification.

Subsequently, the movants sought and obtained a new hearing from another judge of the Circuit Court for Anne Arundel County. The movants introduced testimony from Howard Lyles, Assistant Commissioner of Operations, Maryland Division of Correction. Mr. Lyles told the court that the MCIH was originally “called the Penal Farm bécause it actually was a large tract of land and they did raise many crops____It was then later .. .renamed :.. the Reformatory for Males. Then later, it was renamed and called the Maryland Correctional Institution for Men, and ... is now called the ... [MCIH].” It was primarily built and “designed for young offenders that were just above the juvenile age____” It became a correctional institution “in the early ‘6Q’s.’ ” Mr. Lyles said that MCIH is “still at this date not a full part of the adult system” although the Department of Correction is “placing adults into that facility... [because of] the fact there is not space in the — you know, adult facilities....” Lyles further stated that “twenty-five per cent of... [the inmates] are there because of lack of space.” Those inmates are not segregated in any manner but are part of the general institutional population. If space in other institutions were available, “we would revert back to having predominately, in all possibility, all of the Hagerstown complex being for young offenders.” There was not one word of testimony that any of the “adults” were more than 25 years of age.

The hearing judge felt that “the original legislative purpose for distinguishing between the inmates housed at Hagerstown and those in other facilities ... no longer exists----” He opined that there is no “proper or reasonable ground” for treating escapees from MCIH or MCTCH differently than escapees from other penal institutions, and that Md. Ann. Code art. 27, § 139 (a) was unconstitutional as violative of “the Equal Protection Clause” as well as “the Maryland Declaration of Rights.”

Appeal No. 378

Approximately one month after disposition in the Rogers, et al., case, the same hearing judge, on motion, dismissed escape charges against Aaron B. Copley, Gary Wayne Jefferies, Thomas Lightfoot, Michael Johnson, Claudie West, Victor Marzullo, James E. Barnes, Edward R. Henry, Clarence Eugene Ross, Larry Williams, Earl Scott, and Marvin Franklin. The dismissals were granted for the identical reasons that Rogers, et al. was dismissed.

Appeal No. 426

Robert McGee was also indicted by the Grand Jury of Anne Arundel County on the charge of escape. McGee moved to dismiss the indictment because of what he perceived to be a constitutional defect. The trial judge did not see it that way and denied the motion. McGee was convicted and sentenced to nine (9) months incarceration, to be served consecutively to the term he was serving when he escaped. After the decision in Rogers, et al. McGee filed a motion for reconsideration and rehearing. The trial judge that had presided at McGee’s trial granted the motion, reconsidered, and on the basis of the Rogers decision, dismissed the indictment.

The Merits of the Appeal

Obviously alarmed by what it perceives to be an erroneous abolition of the escape statute, the State seeks reversal. Here the State asserts:

“THE LOWER COURT ERRED IN DECLARING MD. ANN. CODE ARTICLE 27, § 139 (a), UNCONSTITUTIONAL BECAUSE THE STATE LEGISLATURE HAD A RATIONAL BASIS FOR ENACTING DIFFERING PENALTÍES DEPENDING UPON THE NATURE OF THE CORRECTIONAL INSTITUTION FROM WHICH THE ESCAPE WAS EFFECTED.’’

It is well settled that equal protection attacks will not be successful if, as in the matter now before us, the legislative classification rests upon any rational basis rather than feigned differences. Administrator, Motor Veh. Adm. v. Vogt, 267 Md. 660, 677, 299 A. 2d 1, 10 (1973); Potomac Sand & Gravel v. Governor, 266 Md. 358, 376, 293 A. 2d 241 (1972); Allied American Co. v. Commissioner, 219 Md. 607, 623, 150 A. 2d 421 (1959). See also Schilb v. Kuebel, 404 U. S. 357, 92 S. Ct. 479, 30 L.Ed.2d 502 (1971); Dandridge v. Williams, 397 U. S. 471, 90 S. Ct. 1153, 25 L.Ed.2d 491 (1970); McDonald v. Board of Election Comm’rs, 394 U. S. 802, 89 S. Ct. 1404, 22 L.Ed.2d 739 (1969). We agree with the State that the Legislature did, indeed, have a rational basis for the distinction that it drew between escapes from MCIH or MCTCH and other penal institutions.

As created, MCIH and MCTCH were visualized as housing youthful offenders who were above the age of juveniles but still within the classification of “youthful.” Md. Ann. Code art. 27, § 689, enacted by the Legislature in 1962, specifies the age limits of those confined in Hagerstown to between 16 and 25. In 1963, one year after section 689 so classified the Hagerstown facilities, the Legislature provided a less severe penalty for escapes from Hagerstown than from other places of confinement by adding an exception to the existing language of section 139 (a). Apparently the General Assembly believed that those youths who would be confined to MCIH or MCTCH would be neither hardened criminals nor dangerous offenders. To protect its Hagerstown officers, however, the Legislature carefully limited the lesser penalty to those escapes not involving assault upon the officers. If an individual, in escaping from a Hagerstown detention facility, committed an assault upon a prison officer in the course of the escape, the three-year maximum penalty would not be applicable, and the offender could be sentenced up to ten (10) years imprisonment, consecutive to the sentence the offender was serving at the time of the escape.

Md. Ann. Code art. 27, § 139 (a) should not be read in a vacuum but must be considered along with Md. Ann. Code art. 27, § 689. The latter section articulates the legislative purpose for the use of MCIH and MCTCH. “[W]e cannot escape history,” and when the history of the use of the two Hagerstown institutions, including the legislative purpose for them, is weighed along with section 139 (a), it is clear that the statutory scheme for the difference in the degree of punishment for escape from MCIH or MCTCH as compared with escape from other penal institutions serves a rational purpose and is not subject to successful constitutional challenge merely because of that disparity. Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, 32 L.Ed.2d 152 (1972); Gibson v. State, 17 Md. App. 246, 300 A. 2d 692 (1973). See also Administrator, Motor Veh. Adm. v. Vogt, supra; Potomac Sand and Gravel v. Governor, supra; Allied American Co. v. Commissioner, supra. Paraphrasing what we said in Gibson, there is nothing invidious in the Maryland distinction between escapes from MCIH or MCTCH and other Maryland penal institutions. That this State chooses to treat its youthful, less-serious offenders who escape from Hagerstown in a manner that varies from the treatment afforded offenders who escape from other places of confinement does not violate the constitutional rights of the latter. Gibson v. State, 17 Md. App. at 257.

On the surface, then, we observe no constitutional defect in what was Md. Ann. Code art. 27, § 139 (a).

The difficulty, if any, with former Md. Ann. Code art. 27, § 139 (a) is not with the statute per se, but rather with the Department of Correction’s housing within the Hagerstown facility those persons who possibly do not fit within the category of youthful offenders. We recognize that the Department is under an order of the United States District Court for the District of Maryland to provide additional living space for prisoners, but that the physical facilities available make compliance difficult. Whether the federal court order led to the housing of adult offenders in MCIH or MCTCH is not revealed by the records.

The fatal omission in the records before us, however, is not occasioned by the absence of the reason for confining adult offenders in Hagerstown, but by what is meant by the Department of Correction’s assertion, speaking through Mr. Lyles, that twenty-five (25) percent of the total population are “adults.” The word “adult” is not defined in the record, although it is defined in Md. Ann. Code art. 1, § 24, to mean that “[e]xcept as otherwise specifically provided by statute, a person eighteen years of age or more is an adult for all purposes whatsoever____” We are unable to ascertain from Mr. Lyles’s testimony as quoted above if he used the statutory definition, of an adult, or he applied some other meaning. The record does not indicate whether all or any of those persons whom Lyles characterizes as “adults” are over age 25. Lyles’s testimony gives rise to more than one inference. By the use of the words “twenty-five per cent adult,” he may have meant persons beyond the outer limit of section 689, i.e., older than 25 years, but other inferences are permissible. It may be that he meant that seventy-five (75) percent were between the ages of 16 and 18. In short, the mere use of the word “adult,” without defining it, makes the testimony vague and of dubious value.

The appellees further claim that the specter of a denial of the equal protection of the law is raised by the possibility that an “adult” inmate who escapes from Hagerstown, sans assault, would be subject to a maximum penalty of three (3) years while his counterpart who escapes from any other place of confinement would be subject to commitment for a period of ten (10) years.

It is the possibility that the appellees, in appeals No. 182 and No. 378, might be “sentenced to a term greater than the maximum allowable for an escape from the Hagerstown facilities,” Carter v. State, 38 Md. App. 400, 403, 381 A. 2d 309,311 (1978), that caused the circuit court to declare the act unconstitutional notwithstanding the fact that the appellees have “suffered no actual injury. In other words ... [they have] not shown that ... [they were] in fact treated differently from any individuals,” id. at 403, 381 A. 2d at 312, who escaped from Hagerstown. It may be that had the appellees in appeals Nos. 183 and 378 been tried, they might have been found not guilty, or if adjudged to be guilty, they might have received a sentence equal to or less than the maximum that could be imposed for escape from Hagerstown’s facilities. The happening of either of those two contingent events would eradicate the possibility of a successful equal protection attack, for the simple reason that there would be no denial of equal protection.

Put another way, the appellees have placed the proverbial cart before the horse and are relying upon “theoretical inequalities” without having shown that they, themselves, are affected unfavorably by the discrimination of which they complain. Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50, 54-55, 46 S. Ct. 375, 70 L. Ed. 827 (1926); Carter v. State, 38 Md. App. at 403-04, 381 A. 2d at 311-12. The hearing judges should have denied the motion to dismiss so that the cases could have proceeded to an adjudication. If the appellees, or any of them had been subjected to a penalty in excess of the maximum permitted for escape from Hagerstown, they would have been in a position to level a constitutional barrage on the judgment. On the other hand, had the sentence fallen within the range of that permitted for the offense of escape from Hagerstown, the equal protection argument would have vaporized and disappeared. Carter v. State, supra.

Even if we were to decide that former Md. Ann. Code art. 27, § 139 (a) was, in fact and in law, a denial of the equal protection guaranteed by the Fourteenth Amendment and by Article 23 of the Maryland Declaration of Rights, it is transpicuous that the unconstitutional feature comes into being if and only if the trial court imposes a sentence in excess of three (3) years. Otherwise, the party to whom the sentence is meted has no cause to complain that he or she is being denied equal protection of the law. Carter v. State, supra.

For the reasons herein stated, we reverse the order of the Circuit Court for Anne Arundel County in which it dismissed the indictments in appeals Nos. 182 and 387 and remand the cases for trial.

With respect to appeal No. 426, we reverse the order dismissing the indictment of Robert McGee, reverse the order granting a reconsideration of the McGee judgment, and we reinstate the judgment in which McGee was found guilty and sentenced to a term of nine (9) months imprisonment to be served consecutively to the sentence he was serving at the time of his escape.

Orders of dismissal of indictments in the following cases are reversed and the cases are remanded to the Circuit Court for Anne Arundel County for further proceedings: No. 20,455; No. 20,642; No. 20,473; No. 20,491; No. 20,581; No. 20,566; No. 20,586; No. 20,603; No. 20,604; No. 20,639; No. 20,439; No. 20,523; No. 20,698; No. 20,709; No, 20,811; No. 20,812; No. 20,823; No. 20,892; No. 20,893; No. 20,894; No. 20,895; No. 20,446.

Order of dismissal on indictment 20,460 is reversed; order granting motion for reconsideration is reversed; judgment entered on verdict is reinstated.

Costs to be assessed equally to appellees.

      . John Keats (1795-1821), Ode to a Grecian Urn. St. 1.

      . 'Md. Cts. & Jud. Proc. Code Ann. ,§ 12-302 (c) (1).

      . A brief and interesting history of the Maryland law of escape may be found in an opinion by Judge Charles E. Orth, Jr., in Fabian v. State, 3 Md. App. 270, 274-79, 239 A. 2d 100, 104-06 (1968).

      . Patently, in response to the decision by the Circuit Court for Anne Arundel County, the Legislature, by Laws 1978, ch. 188, enacted as an “emergency measure” a replacement for the act struck down by the circuit court. Laws 1978, ch. 188, now codified as Md. Ann. Code art. 27, § 189 (a) provides:
      “(a) If any offender or person legally detained and confined in the penitentiary or jail, or house of correction, or reformatory, or station house, or any other place of confinement, in this State, escapes he shall be guilty of a felony and on conviction by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place, be sentenced to confinement in the penitentiary, jail or house of correction for whatever additional period, not exceeding ten years, as the court may adjudge. The sentence so imposed shall be consecutive to the sentence under which the inmate was originally confined and may not be suspended. However, for escapes from juvenile institutions which have not involved an assault, the sentence may not exceed confinement for three years.”
      Chapter 188 became effective immediately upon being signed into law by the Acting Governor on May 2, 1978.

      . See Laws of Md. 1962, ch. 123, § 1.

      . Section 689 (d) also provides:
      “In those cases in which the judge of the Supreme Bench of Baltimore City, who is assigned to exercise jurisdiction in juvenile causes, may waive jurisdiction and order a minor under the age of sixteen, ana the judge of any circuit court in any county exercising jurisdiction in juvenile causes, may waive jurisdiction and order a minor under the age of eighteen, to be held for action under the regular procedure that would follow if such act or acts had been committed by an adult, then and in that event the judge presiding in the criminal courts of Baltimore City and the judge of the circuit court of any county upon assuming jurisdiction in such case and upon conviction may commit the minor to the Maryland Correctional Institution — Hagerstown regardless of age. The courts of this State, instead of imposing sentences of fixed duration upon male offenders included within this subsection may sentence them to the Maryland Correctional Institution — Hagerstown for an indeterminate period of time which may not exceed the maximum term of imprisonment provided by statute for the offenses of which said person was convicted; and in the event no penalty is prescribed by statute for said offenses then the court shall prescribe the maximum term of imprisonment; but nothing in this sentence applies to any case in which the sentence is life imprisonment or to the service of time for nonpayment of a fine.”

      . See Laws of Maryland 1963, ch. 157. The Legislature inserted the following new language:
      “However, for escapes from the Reformatory for Males which have not involved an assault, the sentence shall not exceed confinement for three years.”
      In 1967, section 139 (a) was updated by renaming the Reformatory for Males to MCIH and MCTCH. Laws of Maryland 1967, ch. 67.

      . Abraham Lincoln (1809-1865). Annual Message to Congress, December .1, 1862.

      . If the appellees were successful in having Md. Ann. Code art. 27, § 139 (a) declared to be unconstitutional, they may be in the position of a general who won the battle and lost the war. This is so because by virtue of Article 5 of the Maryland Declaration of Rights “the Inhabitants of Maryland are entitled to the Common Law of England... and to the benefit of such English statutes as existed on the Fourth day of July,” 1776. The common law crime of escape and prison breach were in effect in Maryland on July 4, 1776. At common law there was no maximum penalty for escape or prison breach, and, in fact, in several cases the death penalty was applied. Kilty, Report of English Statutes (1811); Fabian v. State, 3 Md. App. 270, 277 n. 2, 239 A. 2d 100, 105-06 n. 2 (1968).
      The Legislature, in Laws 1809, ch. 138, enacted an escape statute and, thus, repealed the application of the common law of escape and prison breach in this State. If, however, the statute were unconstitutional, the possibility exists that we would revert to the common law.
      We are not to be understood as holding that if section 139 (a) is unconstitutional that the common law crime is resurrected, and escapees are subject to trial under its provisions. Indeed, we express no opinion thereon but merely point to the possibility.


text:
    CHARLES J. MILLER, INC. v. McCLUNG-LOGAN EQUIPMENT COMPANY, etc.
    [No. 184,
    September Term, 1978.]

      Decided November 3, 1978.

    The cause was argued before Thompson, Mason and Liss, JJ.

      Kenneth D. Short and Charles O. Fisher for appellant.

      M. Stanley Radcliffe for appellees.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal by Charles J. Miller, Inc., appellant, from a judgment rendered in the Circuit Court for Carroll County (Weant, J., presiding) in favor of McClung-Logan Equipment Co. and its collision insurance carrier, appellees.

The case arises out of a bailment which occurred when the appellee, McClung-Logan delivered to the appellant a 10 ton Rexnord steel wheel roller to try out for the purpose of determining whether it was interested in purchasing the equipment. While the roller was in. the custody of the appellant an accident occurred, and when the roller was re-delivered to the appellee, it was determined to be a total loss. The original suit named a subsidiary company of the appellant and one of the employees of the subsidiary company as co-defendants. At trial, the presiding judge granted motions to dismiss as to these co-defendants, and no appeal was taken from this action.

The sole issue raised by this appeal is whether the appellee/bailor met its burden of proof and established by a preponderance of the evidence that the appellant/bailee failed to exercise the requisite duty of reasonable care in the use of the equipment which is the subject matter of the bailment.

The case was tried without the intervention of a jury. The parties stipulated: 1) that the appellee delivered the roller to the appellant in good condition; 2) that when it was returned it was damaged and the extent of that damage was determined to be a total loss; and 3) that the fair value of the equipment when delivered to the bailee was $17,538.40. Counsel for both sides agreed that this stipulation established a prima facie case that there was a mutual bailment for hire and that the stipulated facts required the bailee to go forward with proof that it had exercised reasonable care in the control of the bailed property.

Appellant offered the testimony of its employee who was in charge of the equipment when the accident occurred: The employee stated that acting under instructions from his employer, he loaded the roller onto a tractor trailer owned by the appellant. He gave a detailed account as to the manner in which the roller was secured by four steel chains, each having a test strength of 100,000 lbs, He testified that while he was transporting the steel wheel roller from Thurmont to Westminster, traveling in an easterly direction on Maryland Route 97, he approached a curve to his left which led to a bridge over the Monocacy River. At that point, noticing a small, white automobile heading toward him on his side of the road, he swerved his vehicle to the right, struck the guard rail, and then swung the tractor trailer back to the left. Upon striking the guard rail, he heard a sharp crack which he believed to be the sound of the snapping of one of the chains holding the roller in position on the driver’s side of the trailer. The roller shifted position, but the two back chains continued to tether the equipment. Because of the change in position, a portion of the roller extended beyond the rear of the truck bed and struck the bridge abutment, causing the remaining restraints to be severed which in turn caused the roller to fall off the truck and to tumble down the embankment.

At the conclusion of the appellant’s case, the appellee called in rebuttal the police officer who investigated the accident. He stated that he arrived on the scene less than an hour after the occurrence and that his investigation revealed that the accident occurred in daylight, with the weather being sunny, dry, and clear. He found damage to the guard rail caused by the impact of the roller but observed that there was no apparent damage to the tractor-trailer. He further stated that he remained at the scene for approximately one half hour and that at no time during that period did the driver make any reference to an alleged phantom vehicle which had caused the accident. Appellee rested its case at the conclusion of this rebuttal testimony.

The case was held sub curia, and the judge subsequently filed a memorandum order in which he found “from the evidence [that] the damage complained of was not the result of any collision or near collision with any other vehicle as claimed by the bailee.’’ That conclusion by the trial judge was based primarily on his finding that the driver of the tractor trailer never mentioned to the investigating officer at the scene of the accident the existence of the alleged white vehicle (which he claimed forced him to swerve to avoid a collision). The trial judge found it inconceivable that the driver of the tractor trailer would not have mentioned the phantom vehicle to the investigating officer if such a vehicle did in fact exist. He concluded that the appellant had failed to offer credible testimony which would excuse the failure of the appellant to return the steel wheel roller in the same condition as received. We agree and shall affirm.

The law of bailments is ancient — extending back to Biblical times and before. The Biblical law of bailments, as so many other facets of the law, filtered through the ecclesiastical courts into the common law and was adopted here in Maryland. It is amazing how little change has occurred in the law of bailments over the intervening centuries since the time of Moses. In a long series of cases factually similar to the case at bar, Maryland has stated the controlling principles of bailment law: when the subject matter of a mutual bailment for hire is delivered by the bailor to the bailee, it must be returned by the bailee in substantially the same condition ordinary wear and tear excepted. When the bailed chattel is either not returned or returned in a damaged condition without legal excuse, a prima facie case of lack of due care or negligence is made out. It is then the duty of the bailee to go forward with proof that the loss or injury was occasioned by a cause which excuses the bailee, thereby providing a complete defense as the bailee is not an insurer. The bailor is then, by reason of his burden of proof, required to overcome this defense by establishing by a preponderance of the evidence that the bailee failed to use ordinary care and diligence to safeguard the bailor’s property, and that failure to perform his duty caused the loss to the bailor. Stehle Equipment Co. v. Alpha Construction and Development Co., 247 Md. 210, 230 A. 2d 654 (1967); Fox Chevrolet v. Middleton, 203 Md. 158, 99 A. 2d 731 (1953); Schleisner Co. v. Birchett, 202 Md. 360, 96 A. 2d 494 (1953); Goldberg v. Kunz, 185 Md. 492, 45 A. 2d 279 (1946); General Refining Co. v. International Harvester Co., 173 Md. 404, 196 A. 131 (1938).

Appellant relies principally on the case of Trans-System Service, Inc. v. Keener, 249 Md. 369, 239 A. 2d 897 (1968) to support its position. At first blush, that case might be considered dispositive of the case at bar, but a careful analysis of Trans-System establishes that it is distinguishable on the facts: There, a tractor trailer was left by the bailor with the bailee for certain repairs to be made, it being conceded by the parties that there was a mutual bailment for hire and that the tractor trailer was in good condition when received. While the tractor trailer was in the bailee’s possession, it caught fire and was severely damaged. These facts were submitted by the bailor, who then rested his case. The trial judge held that these facts made out a prima facie case of negligence. The bailee then offered evidence which established that it had taken elaborate precautions to protect the property entrusted to it and that the fire was of unexplained origin. At this point, the bailee rested, and the bailor offered no rebuttal testimony as to the origin of the fire or as to any alleged negligent act of the bailee or its employees. No proof was offered by the bailor that there was any pre-existing condition conducive to the occurrence of the fire.

The Court of Appeals held that the testimony offered by the bailee was sufficient to excuse its re-delivery of the chattel to the bailor in damaged condition and adequate to overcome the prima facie case of the bailor. As the bailor there failed to offer any affirmative evidence of negligence, the bailee was entitled to a directed verdict.

In the instant case, the bailee offered as an excuse for its failure to return the roller in as good condition as received the explanation that the damage was occasioned by the actions of an alleged phantom vehicle. The bailor rebutted this contention by offering proof that appellant’s driver had failed to mention the alleged phantom vehicle to the investigating officer at the scene of the accident. On the basis of that testimony, the trial judge chose to believe that there was no phantom vehicle. As this was the only excuse offered by the defendant, it left unexplained the unusual movement of the vehicle which resulted in the breaking of one of the chains and the ensuing collision with the bridge abutment. Bailor’s prima facie case of negligence survived the effort of the defendant to overcome it, and the court sitting as a jury had facts before it from which it could find that the defendant was negligent.

The Court of Appeals noted in Clemson v. Butler Aviation, 266 Md. 666, 296 A. 2d 419 (1972), at page 671, that “[W]hen a matter is tried before the court without a jury the evidence must be viewed in the light most favorable to the party prevailing below . .. although the conclusions of law based upon the facts are reviewable by this Court.” (Citations omitted).

We are governed by Maryland Rule 1086 which requires that “the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard [will] be given to the opportunity of the lower court to judge the credibility of the witnesses.” The trial judge is entitled to believe or disbelieve all, a portion, or none of the evidence offered and in a non-jury case to reach a determination as the trier of the facts. Davidson v. Katz, 254 Md. 69, 79-80, 255 A. 2d 49 (1969). When the court below chose to disbelieve the phantom vehicle testimony of the bailee, the prima facie case was not “resurrected”; rather, the prima facie case became the only credible evidence before the court. Under those circumstances, the trial judge was justified in reaching the verdict he found.

Judgment affirmed.

.Costs to be paid by appellant.

      . It was not contended by the appellee that the method of securing the .roller was improper, nor was there evidence offered at trial as to any alleged failure to use due care in securing the equipment.

        . The Code of Maimonides, Book Two, The Book of Civil Laws, speaks of the laws concerning bailment. It refers to Exodus 22:6-7, which says that a bailee from whose possession the object' bailed was stolen or lost was required to swear that he kept the object after the manner of bailees. Exodus 22:9-10 and Exodus 22:11 provide: “[If] a man deliver unto his neighbor an ass, ox, or a sheep or any beast, to keep, and it die or be hurt, or driven away, no man seeing it; the oath of the Lord shall be between them both to see whether he have not put his hand unto his neighbor’s goods; and the owner thereof shall accept it, and he shall not make restitution.” The implication was that if the bailee was not responsible for the loss by reason of his conduct, then he was not liable to tne bailor.


author: Thompson, J.,

text:
    REGINALD EDWARD JOHNSON, a/k/a Nathan C. Montgomery v. STATE OF MARYLAND
    [No. 206,
    September Term, 1978.]

      Decided November 3, 1978.

    The cause was submitted on briefs to Thompson, Mason and Liss, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Diane G. Goldsmith, Assistant Attorney General, Sandra A. O'Connor, State's Attorney for Baltimore County, and Timothy Martin, Assistant State's Attorney for Baltimore County, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

On February 28, 1978, Reginald E. Johnson, the appellant, tendered pleas of guilty, to two counts of storehouse breaking, in the Circuit Court for Baltimore County. The pleas were made pursuant to a plea agreement between the appellant and the State which was accepted by the court. Appellant was sentenced to the custody of the Department of Correction for a period of eight years on one count and five years on the other. These terms were to be served consecutively to each other but concurrently with two terms appellant would be facing in Pennsylvania upon the expected revocation of his parole. Three contentions have been raised on appeal:

“1. Did the trial court illegally sentence appellant by making his sentences concurrent with his Pennsylvania sentences but then committing him to Maryland’s Department of Corrections?
“2. Was appellant’s guilty plea involuntary because it was induced by a promise on sentencing which was not kept?
“3. Was appellant illegally indicted because he was charged with two separate crimes in a single indictment?”

In our view only the second of these arguments merits any serious consideration and so we shall address it first. When the crimes which were the subject of this case were committed, appellant was on parole from a Pennsylvania state prison. Although the record is not entirely clear, it appears that the remaining time to be served on appellant’s Pennsylvania sentences was thirteen years. As a result of his conviction of the. instant charges appellant apparently expected to have his Pennsylvania parole revoked and to be reincarcerated in that state. Appellant contends here that a major inducement for his guilty pleas was the expectation that any sentence imposed by the Maryland court would be made concurrent with his Pennsylvania term and that immediately after disposition of his case in Maryland he would be returned to Pennsylvania to serve his time there. The State argues that the promise regarding sentencing was “necessarily limited by the contingency, if Pennsylvania sought the appellant’s return.” The State also points out that “if and when appellant is ever sent back to Pennsylvania, he will receive proper credit for the time already served in Maryland and will not serve more than the fifteen [sic] years as originally agreed in the plea bargain and as accepted by the trial court.”

The following excerpts from the transcript of the proceedings clearly establish the intended effect of the agreement:

“The Court: Now, I understand that there’s been some sort of a plea bargain or understanding between Mr. Murphy [defense counsel], on your behalf, and the State. What is the understanding, Mr. Murphy? I’d like you to say it so we’d be sure.
Mr. Murphy: The understanding is, Your Honor, that he would plead guilty to a ten year count and to a five year count. The time would run consecutively, with a total of fifteen years, which would be concurrent with the fifteen years that he’s facing in Pennsylvania. And the intent of the bargain is that he be sent to Pennsylvania immediately to begin his time.
The Court: You already have a sentence up there?
Mr. Johnson: Your Honor, I have — which I didn’t get a chance to speak with Mr. Murphy regarding it. I do have two sentences, which I will be taken immediately to a penitentiary in Pennsylvania. And because of the difference in the time sequences between here and there, I wanted to ask Mr. Murphy if something a little more equitable might be worked out to the effect that since they were to be run concurrent with the terms there, there is no good time system there, and what I will be doing when I leave here is I’ll serve an eight year sentence from back time, and then I’ll serve five years, which will be the fifteen years. And I wanted to know if I could get the two sentences that they are speaking of run concurrent with the five year sentence.
Mr. Murphy: And that’s what I announced to the Court right now.
The Court: The recommendation of the State is not binding on the Court. You understand that?
Mr. Johnson: Yes, sir.
The Court: I could give you the fifteen year sentence and tack it on to the sentences that you’re going to have to serve in Pennsylvania, or I could put you on probation anywhere between that span, you know. But that’s my job.
Do you understand?
Mr. Johnson: Yes, sir, Your Honor.
The Court: All right.
Mr. Murphy: Well, Your Honor, one proviso under the new rules if the Court decides not to go along with the bargain, the Court has to give you the option of withdrawing your plea and going to trial.
Do you understand that?
The Court: I will go along with the bargain.
Mr. Johnson: Would that be the probation bargain—
Mr. Murphy: No, no, no.
Mr. Johnson: Or to run concurrent?
Mr. Murphy: No, concurrent.
The Court: No. Let’s not talk in terms of probation.
Mr. Johnson: Yes, sir.”
“Mr. Murphy: Your Honor, if it please the Court, the intent of the parties in the recommendation is that at the same time that my client is serving his Pennsylvania sentences, he will be serving his Maryland sentences.
Mr. Martin [Assistant State’s Attorney]: That is correct.”
“Mr. Martin: The position of the State is simply in response to this plea, we will recommend ten on one and five on the other, to run concurrent with the Pennsylvania time. If he had to serve five years in Pennsylvania, he’d have to serve ten remaining. But, you know, he wouldn't have to serve any more time.
The Court: All right. And that’s your recommendation. I am, obviously, not bound by that.
Mr. Murphy: As long as the sentence here expires when the sentence up there expires, I think he’s protected entirely.”
“Mr. Murphy: All right. Now, before the Court decides whether to accept your plea, do you have any questions about any of the questions that I have asked you so far?
Mr. Johnson: I did have one.
Mr. Murphy: The question is, Your Honor, in open Court, does this mean that he’s going back to Pennsylvania.
The answer is if the Court follows the bargain, as it has indicated, it is yes, you're going back to Pennsylvania immediately.”

After pronouncing the sentence the court inquired of the appellant whether it met his expectations:

“The Court: ..,
In other words, if you go up there and have to ‘ serve the thirteen years that you tell me you’re facing — that’s what you told me, right?
Mr. Johnson: Yes, sir.
The Court: If you serve that thirteen years, this sentence will by that time have been also served, and you will be able to come back to Maryland as a free man, as far as this case is concerned.
Now, do you understand me?
Mr. Johnson: Yes, sir.
The Court: Is that what you wanted?
Mr. Johnson: Yes, sir. Am I going back to Pennsylvania?
The Court: Exactly. Right. You go back to Pennsylvania. But every day of the thirteen years that you serve in Pennsylvania, you’re also serving, ' discharging, one day of this sentence.
Mr. Johnson: Yes, sir.
The Court: So that, really, what I am doing to you is not penalizing you at all.
Mr. Johnson: Yes, sir.”

We conclude on the basis of this record that appellant’s justifiable expectations in entering his pleas of guilty were that a maximum sentence of fifteen years would be imposed by the Maryland court, that it would be made to run concurrently with the sentence appellant then expected to serve in Pennsylvania, and that the time would be served in a Pennsylvania prison.

.Whether the Agreement Was Fulfilled

Appellant has not been returned to the custody of the Pennsylvania authorities as he expected. It appears that he had come into Maryland from Pennsylvania while free on parole and, for all that this record shows, the Pennsylvania authorities are unaware of appellant’s conviction and sentencing in Maryland. The circumstances now are such that appellant may serve the remainder of his Maryland sentence in this State and then be forced to serve the remainder of the Pennsylvania sentences upon the future revocation of his parole. It is entirely conceivable that Pennsylvania could either wait until the Maryland time has been served before reimposing the balance of appellant’s sentences or reimpose those sentences so as to run consecutively to those now being served in Maryland.

Neither of these results was contemplated at the time of the agreement. In addition, appellant is clearly being denied an essential element of the bargain, to wit: his immediate return to Pennsylvania. Whether or not the Maryland courts have the power to return appellant to Pennsylvania to serve his time there is beside the point. The crucial consideration here is that appellant has not been given that which he justifiably contemplated as the quid pro quo for his guilty pleas.

The Remedy

Having been induced by promises that were not kept, the guilty pleas entered by appellant cannot be said to be voluntary. Further, it is impossible to say on the record before us, that the appellant would still have entered his pleas had the consequences which have occurred been known to him.

Ordinarily, where a plea agreement has been breached or the accused does not receive a benefit clearly contemplated as an inducement for his plea, he will be permitted the opportunity to withdraw his plea or, under the appropriate circumstances, to seek specific enforcement of the plea agreement. State v. Brockman, 277 Md. 687, 357 A. 2d 376 (1976); Miller v. State, 272 Md. 249, 322 A. 2d 527 (1974); McCormick v. State, 38 Md. App. 442, 381 A. 2d 694 (1978).

Here, the appellant does not seek to withdraw his guilty plea. Rather, he seeks a remand with an order that the promises of the agreement be fulfilled. He also requests, in effect, that the sentences be vacated and the case remanded “so that the trial court will have a chance to reduce appellant’s sentence and thus give him the benefit intended.”

Neither this Court nor the trial court can instruct the Pennsylvania authorities that they must immediately resolve appellant's status as a parolee and decide whether, or how, to reimpose the balance of the sentences pending against appellant in that state. It is therefore impossible to order specific enforcement of the agreement according to its terms as understood by appellant. Nor should the case be remanded for resentencing in the absence of a withdrawal of the guilty pleas.

This case is somewhat analogous to that of Alston v. State, 38 Md. App. 611, 379 A. 2d 754 (1978). There, the sentence was made to run concurrently with one expected, but not then imposed, in the District of Columbia. When the District of Columbia sentence was imposed it was made consecutive to the Maryland sentence. We vacated the Maryland sentence and remanded the case for resentencing. We also made the following observation:

“When the State’s Attorney has given his word in the form of a plea bargain and that bargain is accepted by the trial court, it behooves the State’s Attorney to make every reasonable effort to correct any deviation from the bargain when the deviation is called to his attention. His failure to do so, as here, renders Valueless the State’s word’ and ‘effectively ,.. [erodes] the accused’s trust in the integrity of the State.’ Sturgis v. State, 25 Md. App. 628, 637, 336 A. 2d 803, 807 (1975). Moreover, the State should not stand idly by when it knows that its word is being traumatized, and like Pilate, proclaim its hands clean because it kept its word by making the original accepted recommendation.” 38 Md. App. at 614-615.

As unusual as the Alston case was, it was perhaps less difficult to resolve than is the present controversy. In Alston, the District of Columbia court had already imposed its sentence by the time the case came to us. Therefore, we were able to vacate the sentence and remand for resentencing in light of what the District of Columbia court had done. Here, neither this Court nor the trial court has the benefit of knowing what, if anything, the Pennsylvania authorities will do concerning appellant. Therefore, it would appear that the only practical solution is to offer the appellant a choice between two alternatives:

1. He may elect to leave his guilty plea undisturbed and accept the sentences imposed, in which case, the trial court should request the State’s Attorney for Baltimore County to make all reasonable efforts to notify the proper Pennsylvania authorities of appellant’s situation and to cooperate with those authorities in the return of appellant to Pennsylvania should they desire to take action.
2. He may withdraw his plea of guilty and go to trial on the original charges or enter into a workable plea agreement with the State.

Appellant’s remaining contentions are without merit. He argues that his commitment to the custody of the Maryland Department of Correction was illegal because the plea agreement contemplated his return to Pennsylvania where his Maryland sentence would be served concurrently with that expected to be imposed in Pennsylvania. This argument relates not to the legality of the sentence but rather to the fulfillment of the plea bargain, which subject has been discussed above. Insofar as the strict legality of the sentence is concerned see Md. Code, Art. 27, § 690 (b) requiring that convicted persons in cases such as this be sentenced to the jurisdiction of the Department. Such a sentence does not preclude the possibility that the. time be served in another state’s penal system.

Concerning appellant’s argument that he was indicted illegally because the two separate crimes of which he was convicted were charged in a single indictment, see Md. Rule 712 a. We also note that no objection was made to the form of the charges in the court below, and, therefore, the point is not properly before us. Md. Rule 1085. No jurisdictional question is presented.

Case remanded, without affirmance or reversal, for further proceedings consistent with this opinion.

Costs to be paid by Baltimore County.


author: Wilner, J.,

text:
    SAMUEL HILLARD v. STATE OF MARYLAND
    [No. 209,
    September Term, 1978.]

      Decided November 3, 1978.

    The cause was submitted on briefs to Morton, Moore and Wilner, JJ.
    Submitted by Alan H Murrell, Public Defender, and Bradford C. Peabody, Assistant Public Defender, for appellant.

      Submitted by Francis Bill Burch, Attorney General, Alice G. Pinderhughes, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Anthony McCarthy, Assistant State’s Attorney for Prince George’s County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

The sole issue in this appeal is whether a statement given by appellant while in police custody was prompted by an improper inducement offered by the interrogating officer. Claiming that it was, appellant urges that the Circuit Court for Prince George’s County erred in admitting the statement into evidence. We disagree with appellant and shall therefore affirm the judgment against him.

Some factual background is necessary to a proper consideration of the issue raised by appellant. On the morning of April 8, 1977, appellant, along with three other men — Russell Campbell, Carroll Harrison, and James Herbert — drove to the home of one Warren Womack. Harrison and Campbell entered the house, shot Womack and robbed him of both money and heroin. Womack’s 13-year old son was present in the house at the time, and to prevent him from being a witness, Campbell shot and killed the child.

Campbell and Harrison then returned to the car where appellant and Herbert had been waiting for them, and all four drove to appellant’s house where the heroin was divided.

Appellant was arrested in the District of Columbia during the afternoon of April 14,1977, and taken to the police station in that jurisdiction. At his request, Ronald Tucker, his attorney, was called. At some point, upon the advice of counsel, appellant waived extradition, and was taken to a police station in Prince George’s County. Some time later, the attorney (Tucker) came to the police station where he conferred with both appellant and Detective Earl Jones. Appellant was then questioned in Tucker’s presence by Jones, and, upon counsel’s advice, appellant gave an oral statement which was reduced to writing and signed by both appellant and his attorney. In this statement, appellant admitted receiving Herbert at his home in the early morning hours of April 8, 1977, for the purpose of going to Warren Womack’s house to purchase narcotics. He also admitted giving Herbert a pistol but denied any knowledge that Campbell or Harrison planned to shoot Womack.

Subsequently, appellant, together with Campbell, Harrison, and Herbert, was charged in a nine-count indictment with the murder of the child, various degrees of assault upon Womack, robbery, larceny, unlawful possession of a handgun, and unlawful use of a handgun in the commission of a crime of violence. Appellant was ultimately convicted of but one of these counts — unlawful use of a handgun in the commission of a crime of violence — for which he was sentenced to a term of 10 years in prison. It is that conviction from which this appeal arises,

Prior to trial, appellant, then represented by different counsel, moved to suppress the statement given by him on the grounds that appellant's former counsel, who advised him to make the statement, was incompetent, that appellant did not effectively waive-his right to remain silent, and that “undue influence, including coercion, misrepresentation and improper inducement were used to obtain” the statement. As noted earlier, the only contention, among these, presented in this appeal is whether an improper inducement was offered by Detective Jones.

Two evidentiary hearings were held on appellant’s motion to suppress. At the first hearing, held on July 22, 1977, appellant testified that, while detained at the District of Columbia police station, he was questioned without being advised of his “rights”, that Detective Jones told him that he (Jones) “had some influence over the Court”, that if appellant made a statement “he would go to bat for me, and that he would make sure I get a reasonable bond that I could meet, and if I had to go to trial that he would testify favorably in my behalf.” Additionally, appellant claimed that he was threatened that if he did not make a statement, “he just give me the murder charge for myself.” Notwithstanding all of this, and the alleged refusal of the police to permit appellant to contact an attorney, he made no statement at that time.

Some time later, according to appellant, he consulted with Mr. Tucker, and, upon Tucker’s advice, waived extradition and was taken to the Forestville police station in Prince George’s County. Here, he claims, Detective Jones continued to question him, in the absence of counsel, “off and on for about four hours”, notwithstanding that appellant was then suffering from “withdrawal” from heroin. Jones allegedly repeated his promise to “go to bat” for appellant, to “make sure” that he got a reasonable bond, to testify in his behalf, and indeed, if he caught the other co-defendants and they corroborated appellant’s story, “he would cut me loose.” After all of this, appellant consulted with Mr. Tucker, and, upon Tucker’s advice, made a statement.

Detective Jones, as might be expected, gave an entirely different account. He said that he refrained from questioning appellant for some 3.% hours in order that Mr. Tucker could be present, and that all questioning took place in Tucker’s presence. He specifically denied making any promises, threats, or inducements, and he denied as well that appellant was under the influence of any drugs, or in any pain. Throughout the interrogation, appellant was able to confer with Mr. Tucker, and, from time to time, the questioning was halted for that purpose. With respect to appellant’s claim of inducement, Jones stated:

“Mr. Tucker was told at that time that he was fully aware that I had nothing to say in matters like that, that he was aware he would have to go to the State's Attorney’s Office for any consideration, that I had nothing to do with that. And he stated that he understood that, as a member of the Bar.”

As to the alleged threat to let appellant take the murder “rap” alone, Jones stated that he had told both appellant and his attorney that he didn’t need a statement from appellant “basically because I already knew what had occurred.” In corroboration of Detective Jones’ version of the events, the State offered into evidence a written statement, signed by both appellant and Tucker, showing that appellant was advised of his various Miranda “rights”, and that he waived the same. Typed into this printed form is the additional statement: “My lawyer’s name is Mr. Ronald Tucker and he is present in the room at this time. My lawyer, Mr. TUCKER, has advised me to make a statement.” Included in the “waiver of rights” signed by appellant is the statement, “No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.” Also offered in support of Detective Jones was the actual statement given .by appellant — the subject of the suppression motion. This was in the form of a seven-page written transcript of questions and answers, each page being signed by appellant and witnessed either by Mr. Tucker or Detective Jones.

Upon this record, and in obvious disbelief of appellant’s story, the court denied the motion to suppress.

Some two weeks later, appellant renewed his motion to suppress and requested a de novo hearing thereon, alleging that three witnesses, not known at the time of the earlier hearing, were available to testify to promises made by the police to induce appellant to make his statement. Upon this motion, the court held a de novo hearing immediately prior to the commencement of trial.

The second hearing commenced with Detective Jones again denying that any promises or threats were made, despite the persistence of Mr. Tucker in attempting to extract induceménts. Appellant reiterated his story of the various promises allegedly made — to secure a low bail, to “go to bat” for him, and ultimately to “cut him loose”. Tucker supported appellant to the extent of indicating that Jones had said that, although he didn’t need a statement from appellant, if appellant was truthful, he would “go to bat” for him. By this, he explained that Jones could make no promise directly, but he would convey to the State’s Attorney’s Office and would ultimately testify in court that appellant had been cooperative. Tucker’s version was corroborated to some degree by his partner, Albert Preston, and by a paralegal who claimed to be present at the crucial interrogation.

Upon this evidence, the court again denied the motion. Disbelieving most of appellant’s testimony, the court concluded:

“Everybody seems to agree that the main thrust of all the discussions between Jones, his lawyer who was present and the defendant, was that Jones would go to bat for this defendant if what the defendant told him, number one, turned out to be true, not only would he go to bat — indicating that the man maybe should be put on bond— and not how much. Since this was a murder charge, neither Jones nor the State’s Attorney or anybody else could set bond. The only one that could set bond would be the Court. So what this defendant was in fact told by Jones, and I find as a fact this is what he was told, that if you are telling me the truth about your involvement in the occurrence, I will go to bat for you to the extent that I will tell the State’s Attorney’s office and the Court, number one, that you have cooperated, number two, you have told me the truth, and number three, I believe you were not knowledgeable as far as the murder was concerned.” (Emphasis supplied.)

Coupling this finding of fact with the continued presence of appellant’s counsel throughout the interrogation, the court concluded that the method used to obtain the statement violated neither fundamental fairness nor any of appellant’s more particular constitutional rights, and that the statement was therefore voluntarily given.

We note, in the first instance, that from our constitutionally mandated independent review of the record, we believe that the court’s finding of fact, as recited above, was amply supported by the evidence. This includes both its finding that blatant threats or direct promises to obtain a low bond or to “cut loose” appellant were not made as well as its finding that Jones did offer to “go to bat” for appellant in the limited fashion stated by the court. The question, then, is whether a promise to “go to bat” for an accused in the context noted amounts to such an improper inducement as to render the statement inadmissible as a matter of law.

In 1897, the United States Supreme Court stated that “[a] confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide .upon its effect upon the mind of the prisoner____” Bram v. United States, 168 U. S. 532, 543 (1897). Echoing this maxim, the Court of Appeals said, in Kier v. State, 213 Md. 556, 561 (1957), that, in Maryland, the State has the burden of establishing that “no force or coercion was exercised by the officers obtaining the confession, to cause the accused to confess, and that no hope or promise was held out to the accused for the purpose of inducing him to confess.” (Emphasis supplied.) The Alabama court expressed the same rule, with some greater elaboration, this way in Wallace v. State, 275 So. 2d 634, 636 (Ala., 1973):

“Any inducement of profit or benefit held out; any hope engineered or encouraged that the prisoner’s case will be lightened, meliorated, or more favorably dealt with if he will confess; either of these is enough to exclude the confession thereby superinduced. Any words spoken in the hearing of the prisoner which may, in their nature, generate fear or hope render it not only proper but necessary that a confession made within a reasonable time afterwards shall be excluded, unless it is shown by clear and full proof that the confession was voluntarily made after all trace of hope or fear had been fully withdrawn or explained away and the mind of the prisoner made as free from fear, intimidation or hope for reward as if no attempt had ever been made to obtain such a confession. The true testis whether, under all the surrounding circumstances, a confession has been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor.” (Emphasis supplied.)

Although the courts are by no means of a single view on this subject, the majority view appears to be that, absent other coercive circumstances, the mere statement by an interrogating police officer that a defendant’s cooperation would be brought to the attention of the prosecuting authorities, or the court, or even the defendant’s probation officer, does not constitute an improper inducement and does not, therefore, suffice to render a confession involuntary and inadmissible. See, for example, United States v. Frazier, 434 F. 2d 994 (5th Cir., 1970); United States v. Springer, 460 F. 2d 1344 (7th Cir., 1972), cert. denied, 409 U. S. 873; United States v. Curtis, 562 F. 2d 1153 (9th Cir., 1977); People v. Hubbard, 302 N.E.2d 609 (Ill., 1973); Wallace v. State, supra, 275 So. 2d 634; State v. Williams, 358 So. 2d 1094 (Fla. App., 1978); State v. Mullin, 286 So. 2d 36 (Fla. App., 1973). In United States v. Ferrara, 377 F. 2d 16 (2nd Cir., 1967), cert. denied, 389 U. S. 908, the court held that the defendant’s confession was not rendered involuntary because the interrogating officer had stated that, if the defendant cooperated, “I felt sure he would get out on reduced bail.” In reaching that result, the court observed, at page 17:

“The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of ‘law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined * * [citations omitted] ” (Emphasis supplied.)

Many of the decisions reaching a contrary result — that a promise to testify as to the defendant’s cooperation, or to bring it to the prosecutor’s or the court’s attention constitutes an improper inducement rendering a subsequent confession invalid — emanate from North Carolina, whose courts have apparently taken a more stringent attitude than most in this regard. See, for example, State v. Williams, 235 S.E.2d 869 (N.C., 1977), and the companion cases of State v. Fuqua, 152 S.E.2d 68 (N.C., 1967), and State v. May, 152 S.E.2d 72 (N.C., 1967). See also, however, People v. Pallister, 165 N.W.2d 319 (Mich., 1969), where a promise that the police would aid the defendant in gaining a reduction of the charge and release on bond invalidated the resulting confession; also Fillinger v. State, 349 So. 2d 714 (Fla. App., 1977), where a promise to bring the accused’s cooperation to the attention of the prosecutor was held to be impermissible in light of the fact that the accused, initially charged with petty larceny, was confined to a wheelchair and threatened with arrest on a grand larceny charge as well.

The holdings in these various cases should not be taken out of the context that produced them. A promise to bring a defendant’s cooperation to the attention of a prosecutor or a court may be improperly inducive under one set of circumstances, but not so under other circumstances. Such a commitment, in other words, is not inherently improper; it cannot be said, as a matter of law, to constitute an impermissible inducement.

There was ample evidence in this case to show that Detective Jones was not especially anxious to have appellant confess — that he did not need his confession in order to “make” his case. There was evidence to show that the detective, in fact, resisted the entreaties of appellant’s lawyer to extract promises, that he continually told both appellant and the lawyer that he could make no commitments as to charges or bail — that only the State’s Attorney had that authority. With this background, with counsel being present throughout the interrogation (and indeed participating in the questioning), in the utter absence of other coercive circumstances, we cannot conclude that the trial court erred in determining that the confession was freely given, and thus admissible.

Judgment affirmed; appellant to pay the costs.

      . .Campbell’s conviction, arising from these events, was affirmed by this Court in an unreported per curiam opinion in Campbell v. State, No. 1115, Sept. Term, 1977, filed May 5, 1978.

      , .This conviction followed appellant’s initial trial on December 12-14, .1977, The jury could not agree on a verdict with respect to the other counts, and a mistrial was declared as to them. Upon retrial in April, 1978, appellant was acquitted of the murder and robbery charges.