text:
    RUSSELL ELLIOTT TODD, JR. v. STATE OF MARYLAND
    [No. 1050,
    September Term, 1974.]

      Decided September 9, 1975.

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

      William T. Wood for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Steven Shaw, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

On August 27, 1974, Russell Elliott Todd, Jr. was convicted of armed robbery, use of a handgun in the commission of a felony and of carrying a handgun. He had been tried by a jury in the Circuit Court for Montgomery County. The trial judge ruled that the conviction for carrying a handgun was merged in the offense of using a handgun in the commission of a felony.

A motion in proper person for a new trial, received by the trial judge on September 3, 1974, was filed in the office of the Clerk of Court on September 5, 1974. The State filed a motion ne recipiatur as to the motion for a new trial, contending that the same had not been filed within three days after verdict as required by Maryland Rule 759. The trial judge granted the State’s motion ne recipiatur upon the ground that the motion for a new trial was not timely filed.

Appellant then was sentenced to imprisonment for a conditional term of ten years under the provisions of Article 27, § 641A for the armed robbery offense and to imprisonment for five years for the handgun offense, the sentences to run concurrently.

Appellant contends on appeal that the trial court was in error:

1. In refusing to hear appellant’s motion for a new trial.
2. In submitting to the jury the question whether a C.0.2 pistol was a handgun within the meaning of Article 27, § 36B (d).
3. In admitting evidence of pretrial identification by photograph and permitting in-court identification at trial.

Rejection of Motion for New Trial

Assuming that the motion for a new trial was filed at the time of its receipt by the trial judge on September 3, 1974, rather than at the time of its actual docketing and filing in the Clerk’s office, it is plain that it was not filed within the time prescribed by Rule 567. Rule 567 is made applicable to criminal trials by Rule 759.

Testimony was taken at hearing upon the State’s motion ne recipiatur. Appellant testified that he had completed the motion for a new trial on August 29, 1974 “to the best of [his] memory;” that he passed it along to an officer at the detention center on the same date; that he understood that outgoing mail is not mailed until the following day. Sgt. Sarah Boone of the detention center, in general confirmed the testimony of appellant.

The trial judge then rendered the following oral opinion:

“Gentlemen, the Court is of the opinion it lacks jurisdiction to entertain the motion for a new trial. The rule is clear that the motion for a new trial must be filed within three days of the verdict and in this case the verdict was returned on the twenty-seventh. So you would begin counting on the twenty-eighth and that would be the first day, the twenty-ninth would be the second day, and the thirtieth would be the final day for filing, and all of those were regular work days. There is no gap in the filing period. So by the close of business on the thirtieth there had to be filed with the Court, and I would have accepted filing with me as being sufficient. The man was represented by counsel at the time and he is presumed to have known what the law was and he did not get it filed. I have allowed adequate opportunity and a recess here this morning and even suggested further investigation to determine whether there was any willful effort on the part of any State official to delay the transmittal of this letter, which would possibly allow me to consider the motion for a new trial and I find no such, certainly no intentional holdup or delay in the transmittal of this man’s mail, but rather handling in the regular course of business of the detention center and according to their own administrative procedures. Now the Court feels that their administrative procedures might be so blatantly improper as to amount to a denial of reasonable access to the Court, but I do not find that in this case. The defendant himself is very unsure as to the time when he may have handed this letter to one of the custodial personnel and indeed it may have been very late in the day on the twenty-ninth when he would not have expected it to be posted until the thirtieth. He made no special request that it be given any favorable handling or that it be hand-carried. He did not attempt to call his attorney and ask him to come over and get it or to file a motion for a new trial on his behalf.
“The attorney knew that and certainly was charged with knowledge as was the defendant that he had three days in which to file the motion, and the motion was not timely filed, and I can find no intervention on the part of any State official which intentionally delayed or unreasonably delayed the transmittal of this document. It was simply too late.”

The record fully supports the factual conclusions of the trial judge. The case of State v. Tull, 240 Md. 49, 212 A. 2d 729, is dispositive of this issue. In Tull it was said at 52 [730]:

“Maryland Rule 759 a provides that a motion for a new trial in criminal cases, as in civil, ‘shall be filed within three days after the reception of a verdict’ (such a motion was duly filed within three days after the verdict in the original trial on June 6, 1962, and denied). We held in Giles v. State, 231 Md. 387, (in which the sequence of events was almost identical to that here, the second motion for a new trial having been made there some two months after the original judgment and sentence had been affirmed here) that the rule meant what it said and was valid. The apposite language in part was:
‘Maryland Rule 567 a provides that a motion for a new trial “shall be filed within three days after the reception of a verdict” and subsection e of that Rule provides that “if a motion for a new trial be not made, within the time prescribed by section a * * * the Clerk shall enter a final judgment as of course.” Since appellants’ motion was not filed within three days after reception of the verdict, it was properly denied.’
See also Drehoff v. Warden, 231 Md. 654, 656; Cook v. State, 225 Md. 603, 608; Carr v. State, 218 Md. 318, 320; Johnson v. State, 215 Md. 333, 336-337.
“The trial court had no power to grant a new trial under Rule 759 a.”

The trial court was without power to consider the tardy motion for a new trial. There was no error in sustaining the State’s motion ne recipiatur and the concomitant refusal to consider the appellant’s motion for a new trial.

The Weapon

At the time of his arrest a weapon was seized from the glove compartment of a motor vehicle appellant had been operating. The validity of the search and seizure is not contested. The seized weapon was offered by the State and was received in evidence over the objection of appellant. A State’s witness had testified that the exhibit “looks like the gun he was pointing at me * * * the barrel looked like the other one. It was the same color.”

The State now contends that conviction for the handgun offense could be justified and supported by the testimony of a witness who had described the weapon used in the robbery as a .45 calibre pistol. The propriety of such position ordinarily would be beyond cavil. Tangible evidence in the form of the weapon used in an offense certainly is not an essential to proof of the use of a weapon. In the subject case, however, the State offered the object in evidence. The sole basis for its admission was the implicit assurance of the State that it was the weapon used in the robbery. The State may not receive benefits accruing from introduction by it of such tangible evidence and thereafter repudiate the connection of that graphic material evidence and the offense it was offered to support. In such circumstances we believe that the issue whether the weapon falls within the purview of the handgun law is before us for decision.

Evidence as to the precise nature and operation of the weapon was quite sparse, having been limited to the following:

“THE COURT: Agent Johnson, are you familiar with the operation of this particular weapon you have been shown?
THE WITNESS: Yes, sir.
THE COURT: How does it fire?
THE WITNESS: CO2 cartridge that is placed inside of the handle grips; there is a screw on the bottom which you tighten to engage it. It will fire a .22 caliber pellet. At the time I received it there was one pellet in it and the gun was charged.
I subsequently, prior to taking it to court in the City of Falls Church, disarmed the weapon.
THE COURT: It is the carbon dioxide which causes the pellet to go out of the gun?
THE WITNESS: Yes, sir.”

Appellant contends that the weapon does not fall within the meaning of “handgun” as the same was used in Article 27, § 36B. We do not agree.

The pertinent parts of Article 27 are as follows:

§ 36B

“(d) Unlawful use of handgun in commission of crime. — Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”

§ 36F (a)

“(a) The term ‘handgun’ as used in this subheading shall include any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun and a short-barreled rifle as these terms are defined below, except it shall not include a shotgun, rifle or antique firearm as those terms are defined below.”

The declared legislative policy appears as subsection (a) of § 36B and reads as follows:

“(a) Declaration of policy. — The General Assembly of Maryland hereby finds and declares that:
(i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;
(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
(iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
(iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.”

In the American Heritage Dictionary of the English Language (1973) appear the following definitions:

Gun — A weapon consisting essentially of a metal tube from which a projectile is fired at high velocity into a flat trajectory. A device that shoots a projectile.
Handgun — A firearm that can be used with one hand; a pistol.
Firearm — Any weapon capable of firing a missile, especially a pistol or rifle using an explosive charge as a propellant.
Missile — Any object or weapon that is fired, thrown, dropped or otherwise projected at a target; projectile.

That the weapon in question is a gun within the cited definition is plain. That it may be carried and used in the hand is equally clear. The evidence is uncontradicted that the weapon was capable of firing a missile and that it had the outward appearance of a .45 calibre pistol. It was, in short, a handgun unless it was the legislative purpose and intent to have the handgun statute limited in its effect to those hand weapons from which a bullet or missile is ejected by an explosive charge.

We believe that the declaration of policy forming a part of the statute belies such purpose or intent. We regard that policy declaration to indicate an intent to include any hand weapon simulating the appearance of a pistol or revolver that is capable of discharging a missile by any method of propulsion. We note that § 36F (a), supra, declares that handgun shall include any pistol, revolver or other firearm. The subsection, in short, does not limit application of the statute to weapons in which the propulsive force is the explosion of gunpowder. It does not exclude weapons discharging missiles by other means.

The Attorney General of Maryland in 1954 and 1958 expressed the opinion that, “* * * Zip guns and CO2 guns capable of firing a projectile are deadly weapons and that instruments operated by gas or CO2 are proscribed by Section 57, Article 24, Baltimore City Code (1950 Ed.)” See 43 Op. A. G. 268, 269.

There are cases in other jurisdictions that may be interpreted as declaring a contrary view.

In People v. Schmidt, 222 N.Y.S. 647 (S. Ct. App. Div. 1st Dept., 1927), wherein the statute proscribed possession of a “pistol, revolver or other firearm of a size which may be concealed upon the person” it was said at 649-50:

“That a ‘firearm’ necessarily connotes the action of a chemical explosive such as gunpowder, which action is in the nature of combustion of some sort in a weapon, is doubtless the commonly accepted usage. The definition of a firearm commonly given is: ‘A firearm is a weapon which acts by the force of gunpowder.’ 40 Cyc. 852. In the Supreme Court of Alabama, in the case of Atwood v. State, 53 Ala. 508, 509, a statute reading ‘a pistol, or firearms of any description,’ was construed as referring to ‘a weapon acting by the force of gunpowder.’ ‘A pistol,’ said the court, ‘is a small, light firearm.’
“In Harris v. Cameron, 81 Wis. 239, on page 242, 51 N. W. 437 (29 Am. St. Rep. 891), in describing an air gun, the court said:
‘The power is air pressure, which is forced into a small space in the small barrel by a plunger; and by a movement of the trigger the compressed air escapes outwardly, and forces out the shot with considerable force.’
“In holding that such a weapon was not to be described as a firearm, the court said:
‘These prohibited pistols or revolvers must be firearms; that is, “weapons which act by the force of gunpowder.” The air gun or pistol is not prohibited. This air gun is not a gun or a weapon in the above signification of the words, but called a “gun,” imitative only of a real gun.’
“As was said by the Court of Appeals in the case of Cooper-Snell Co. v. State, 230 N. Y. 249, 255, 129 N. E. 893, 895:
‘One of the cardinal rules to be applied in construing statutes is that they are to be read according to the natural and obvious import of their language, without resorting to a subtle or forced construction either limiting or extending their effect.’
“Under this principle, it is doubtless true that the usual and customary meaning of the word ‘firearm’ does not include an air pistol.”

In Tendler v. District of Columbia, 50 A. 2d 263 (Mun. Ct. of App. D.C., 1946) under a statute providing: “ ‘It shall not be lawful for any person or persons to sell to any child or children under the age of 18 years firearms, ammunition, gunpowder, gun caps, or other explosives, or projectiles, darts, or other dangerous missiles in any quantity or quantities [,]’ ” it was said at page 263-64:

“The regulation, however, does not prohibit the sale of dangerous weapons; it prohibits only the sale of ‘firearms, ammunition * * * or other explosives’ or ‘projectiles * * * or other dangerous missiles.’
“It seems to us obvious that an air pistol is not a ‘firearm.’ ‘That a “firearm” necessarily connotes the action of a chemical explosive such as gunpowder, which action is in the nature of combustion of some sort in a weapon, is doubtless the commonly accepted usage.’ People v. Schmidt, 221 App. Div. 77, 222 N.Y.S. 647, 649. An air pistol is not a ‘missile’; neither is it a ‘projectile’, which is defined by Webster’s New International Dictionary as ‘a body projected by exterior force, and continuing in motion by its own inertia; specifically, a missile for a firearm or cannon.’ ”

In Thompson v. State, 488 P. 2d 944 (Ct. of Crim. App., Okla, 1971), wherein the statute prohibited the carrying of “any pistol, imitation or homemade pistol * * * or any other dangerous or deadly firearm” the Court said at 947:

“This Section prohibits the carrying of ‘any pistol, imitation or homemade pistol * * * or any other dangerous or deadly firearm.’ It is a restriction on carrying firearms and not so broad as to encompass all weapons. As stated in Washington v. State, supra: ‘§ 1283 * * * applies only to firearms and not weapons in general.’ The language ‘or any other dangerous or deadly firearm’ limits and restricts the word ‘pistol’ to only firearms, and ‘imitation’ or ‘homemade’ refers to the type or kind of firearm.”

The Court added at 948:

“We, therefore, hold that an air gun, as the Daisy CO2 Air Compressor Pistol herein, is not a firearm; and does not come within the meaning of 21 O.S. 1961 § 1283, which prohibits felons from carrying firearms.”

We conclude that the decisions in Schmidt, Tendler and Thompson, all supra, turned upon legislative use in the respective statutes of the word “firearm” as a limiting word specifically restricting the breadth and scope of the statutes. We believe that legislative use of the word “handgun” rather than the more restrictive word “firearm” was a matter of deliberate choice. The word “handgun” must be given a broader interpretation and would encompass the weapon admitted in evidence in the subject case.

We find no error in the court’s refusal to instruct the jury that the weapon offered as an exhibit by the State was not a handgun within the meaning of the statute.

Pretrial and In-Court Identifications

When trial counsel for appellant indicated he would contend that pretrial and proposed in-court identifications were tainted, the trial judge suspended the proceedings before the jury for the taking of testimony upon the issue out of its presence. This accorded with the procedures approved in Smith and Samuels v. State, 6 Md. App. 59, 250 A. 2d 285, after the decision in Simmons v. U. S., 390 U. S. 377, 19 L.Ed.2d 124.

At the conclusion of testimony on the issue, the trial judge declared, inter alia: (a) that the “opportunity to observe the person who perpetrated the armed robbery was perhaps as significant as one is going to encounter in an armed robbery case; * * * [and] add up to an extraordinarily good opportunity to observe and form an impression in one’s mind”; (b) that the witnesses had been presented “an excellent array of identification photographs * * * [that were] extraordinarily fair in their selection”; and (c) that the composite made from the description of one eyewitness and shown to a second witness was “for entirely legitimate and understandable purpose of first asking her the true likeness of the person she had seen and any changes she would have made, all toward influencing no judgment but getting the best composite available for investigative means.” He added: “We don’t think anything was done with this composite and the evidence * * * before us that would indicate even prima facie that the viewing procedure for the photographs was illegal.”

The trial court then said: “* * * there is no such showing of impermissible suggestiveness which would give rise to a very substantial likelihood of irreparable misidentification” adding that he left to defense counsel the “tactical determination to bring to the attention of the jury such of these facts and circumstances as may reasonably bear upon the weight to be given to the identifications and that while this ruling is final as to the admissibility of the evidence, you are not precluded from introducing essentially the same testimony insofar as it may affect the weight.” The record abundantly supports the trial court’s factual determinations and fully justifies the conclusion he reached upon those facts.

A contention that the statement by a police officer to a witness that: “I know the guy is in there” (included among nine photographs handed to the witness) served to vitiate her identification is without merit. The police officer had testified that he had made the comment in a joking manner. The witness herself testified that she did not even remember such a statement having been made by the officer but that in any event she had picked out the photograph of the appellant “* * * because it just came to me. I just remembered his face.” She said she had not felt obliged to pick out any photograph because of anything the detective said. The trial judge, after pointing out that the witness in question had testified that her identification was based upon what she saw on the night of the robbery and upon nothing else, said that he “accepts that testimony as being entirely true and credible.” He then added: “I think the statement made by the officer was unfortunate [but] it is not such as would cause this procedure to be tainted and cause this Court to declare that this was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” We agree. Howell v. State, 18 Md. App. 429, 435, 306 A. 2d 554, 559.

Appellant’s suggestion that the witnesses were uncertain in their photographic, lineup and in-court identifications was a matter for resolution by the trier of facts. Felder v. State, 6 Md. App. 212, 250 A. 2d 666, 668, and cases therein cited.

We find no error in the admission of the identification evidence.

The appellant, in proper person, has attempted to raise an additional issue that involves a question of the competency of trial counsel. Such a question, not raised below, will not be heard on direct appeal. Maryland Rule 1085; Spease and Ross v. State, 21 Md. App. 269, 301, 319 A. 2d 560, 577.

Judgments affirmed.

      . Rule 567 in pertinent part reads as follows:
      “a. Motion— When to Be Filed.

      A motion for a new trial as to all or part of the matters in controversy shall be filed within three days after the reception of a verdict, or, in case of a special verdict or a trial by the court within three days after the entry of a judgment nisi. ”

      . Rule 759 in pertinent part reads as follows:
      “a. Motion for New Trial.

      A motion for a new trial shall be made pursuant to Rule 567 (New Trial).”

       We note that counsel for Todd on appeal did not represent him at the trial below.

      . This section placed certain restrictions upon the delivery to others of a “pistol or revolver.”


source: Caselaw Access Project

author: Eldridge, J.,

license: Public Domain

text:
    MARIE DOROTHY MILLER v. LOIS H. MUELLER
    [No. 1093,
    September Term, 1974.]

      Decided September 9, 1975.

    The cause was argued before Moylan and Lowe, JJ., and John C. Eldredge, Associate Judge of the Court of Appeals of Maryland, specially assigned.

      Sidney Blum for appellant.

      Paul Mark Sandler for appellee.
   Eldridge, J.,

delivered the opinion of the Court.

This case concerns the authority of an attorney to enter into a contract for the sale of his client’s property.

Lois Mueller and Marie Miller are sisters. In 1969, they acquired a parcel of real estate, improved by a house, as joint tenants, assuming an existing mortgage on the property. Differences arose between the sisters, and in January 1961 Lois Mueller moved from the house. Marie Miller has made the mortgage payments on the property since February 1971. In the latter part of 1971 Lois Mueller was approached by Sidney Blum, an attorney, in the clerk’s office of the Circuit Court of Baltimore City where she was employed. Blum told Mrs. Mueller that he represented her sister who was having difficulty in making the mortgage payments. Mrs. Mueller replied that she would make the mortgage payments if she could have access to the house. Mr. Blum said nothing and left. Mrs. Mueller was again approached by Mr. Blum in the beginning of 1973, and he asked what amount she would take in settlement. She told Blum that she did not know what she would take and that an appraisal would be necessary.

In February 1973, Mrs. Mueller spoke with John P. O’Ferrall, an attorney and an auditor in chancery for the Supreme Bench of Baltimore City, when he visited the clerk’s office in his official capacity. The two were friends, and Mrs. Mueller told him of her difficulties with her sister and her conversations with Mr. Blum. She asked him to help her reach a settlement with her sister, and they discussed the value of the property and a possible sale price. O’Ferrall sent Blum a letter, dated February 27, 1973, stating that he represented Lois Mueller and that she would convey her interest in the real estate for $4,750. Enclosed with the letter was a sheet prepared by Mrs. Mueller showing the expenditures she had made for house repairs and her share of the down payment and mortgage payments. These expenditures and payments totaled $4,750, the price quoted in the letter.

Blum and O’Ferrall had several conversations concerning a possible settlement subsequent to the February 27 letter. Mrs. Miller had objected to the amounts of some repairs on Mrs. Mueller’s breakdown sheet and rejected the offer to purchase Mrs. Mueller’s interest for $4,750. Blum requested that either the bills to substantiate the $4,750 figure be shown or that a new settlement price be agreed upon. O’Ferrall thereupon met with Mrs. Mueller in the courthouse on July 9, 1973. The accounts of this meeting, and what transpired afterwards, differ. According to Mr. O’Ferrall, Mrs. Mueller suggested that she was willing to assume the mortgage and pay $2,500 for Mrs. Miller’s interest in the property, or she would accept $2,500 for her interest in the property. Later the same day, O’Ferrall wrote to Blum as follows:

“I spoke with Lois today concerning our telephone conversation of recent date. She has advised me that she is willing to pay her sister the sum of $2500.00 for the sister’s interest in the property and she will assume the payment of the existing mortgage on the property. In the alternative, she will convey her interest in the property to her sister for $2500.00.
“Please let us know whether either of these propositions will clear up this matter.”

No copy of this letter was sent to Mrs. Mueller, but O’Ferrall testified that he did tell Mrs. Mueller that he had passed her suggestion on to Mr. Blum.

Blum wrote to O’Ferrall on August 21, 1973, stating that Mrs. Miller had agreed to pay Lois Mueller $2,500 for her interest in the property and that settlement had been set for August 24, 1973. According to O’Ferrall, he called Lois Mueller the day he received the letter from Blum to inform her of the settlement. He requested that she come to his office to sign a power of attorney so that she would not have to attend the settlement. She told him that she had not authorized such a settlement and that she would not sign a power of attorney to sell her interest for $2,500.

Mrs. Mueller’s account of the matter differed somewhat from that of Mr. O’Ferrall. According to Mrs. Mueller, O’Ferrall, in the summer of 1973, told her that Blum had said that Mrs. Miller was willing to pay her $2,500 for her interest in the property. Mrs. Mueller replied that she would give her sister $2,500 and assume the mortgage payments, but that she would not take $2,500 for her own interest. She testified that at no time did she ever authorize O’Ferrall to make any offer or demand for her interest in the property, and that even the $4,750 figure previously discussed, representing her total expenditures, was not an offer but was merely a suggestion of a possible price. Mrs. Mueller said that the first time she heard of the offer or proposed settlement was on the morning of August 24, the date set for settlement, when O’Ferrall called to request a power of attorney, and that she had not known of the July 9 letter offering the property for $2,500.

When, during the telephone conversation in August 1973, Mrs. Mueller told O’Ferrall that she would not settle for $2,500,' O’Ferrall informed her that he could no longer act as her attorney. She asked him for a bill, but he replied, that she owed him nothing. Mr. O’Ferrall brought Mrs. Mueller the file concerning the case, and she testified that this was the first time she had seen either the February 27 or July 9 letters. Lois Mueller did not attend the settlement scheduled for August 24.

Marie Miller filed a bill of complaint in the Circuit Court for Baltimore County, seeking specific performance as well as damages. The bill alleged that Marie Miller had received an offer from Lois Mueller for the sale of Mueller’s interest in the house, that the offer had been accepted, that Lois Mueller had subsequently refused to consummate the agreement, and that because of this refusal, Marie Miller had lost an advantageous mortgage and incurred certain costs necessary to obtain the mortgage.

The circuit court (Raine, C. J.) found that the letters between Blum and O’Ferrall constituted a sufficiently clear and definite agreement to satisfy the Statute of Frauds. But the court found that the question of O’Fcrrall’s authority to make an offer on behalf of Mrs. Mueller was more “troublesome.” The court characterized the relationship between O’Ferrall and Mueller as being “more of two friends or fellow employees than it does of the typical lawyer-client relationship.” The court pointed out that the evidence showed “a confusion about the matter that very frequently results from a lay-lawyer relationship that is . . . handled on a friendly or fellow employee basis” which would not have occurred “if their arrangement had been the typical lawyer-client relationship and not the much more casual relationship that . . . the testimony in this case indicates.” The circuit court found, “under this unusual set of circumstances,” that there had not “been a sufficient showing of the attorney’s authority to bind the respondent.” The court was of the view that the evidence, instead of proving Q’Ferrall’s authority to bind Mrs. Mueller, showed “a misunderstanding between the lawyer and client . . . .” From the judgment dismissing her bill of complaint, Mrs. Miller appeals.

(1)

Mrs. Miller’s first contention is that the trial court clearly erred in finding that no attorney-client relationship existed between Mrs. Mueller and Mr. O’Ferrall. We believe that the appellant has misinterpreted the circuit court’s findings. The court considered the nature of the relationship, the fact that no fee was paid, that no conferences in the attorney’s office were held, and that Mr. O’Ferrall did not send copies of his correspondence with Sidney Blum to Mrs. Mueller, and concluded that the lawyer-client relationship was not a typical one. The court then considered this factor, together with the testimony directly bearing upon the authority question, in determining whether O’Ferrall was authorized to enter into a contract of sale on behalf of Mrs. Mueller. The course of conduct between attorney and client is significant in determining what authority has been conferred upon an attorney by his client. Nellis v. Massey, 108 Cal.App.2d 724, 239 P. 2d 509, 512 (1952). But the trial court did not dismiss the complaint on the basis of a finding that the relationship was not a typical lawyer-client relationship, but rather on its finding that there was no proof that O’Ferrall had actual authority to enter into a binding contract.

The testimony on the question of O’Ferrall’s actual authority is conflicting. O’Ferrall’s own testimony concerning his authority to make an offer binding on Mrs. Mueller is far from clear. He testified that when he spoke to Lois Mueller about the $2,500 offer, she “suggested” that she would be willing to accept $2,500 for her interest. He also testified that, although he “was not authorized to sell the house,” he believed that he had been authorized to deliver the “intent” of the July 9 letter. Mrs. Mueller, on the other hand, testified that she had never authorized O’Ferrall to make any firm offer to sell her interest. Her testimony concerning the $2,500 offer was that she had specifically told O’Ferrall that she would not accept $2,500 for her interest in the house.

Under Maryland Rule 1086, the judgment of the trial court will not be set aside on factual grounds unless clearly erroneous. Crest Inv. Trust v. Comstock, 23 Md. App. 280, 327 A. 2d 891 (1973). An appellate court will not weigh or evaluate conflicting evidence, which is the province of the trial court, but will consider only whether there is any evidence legally sufficient to support the findings of the trial court. Rogers v. Rogers, 271 Md. 603, 319 A. 2d 199 (1974); Carling Brewing Co. v. Belzner, 15 Md. App. 406, 291 A. 2d 175 (1972). Clearly there was sufficient evidence supporting the trial court’s finding that Lois Mueller did not actually authorize her attorney to make an offer to sell her interest in the property.

(2)

The appellant Miller next contends that even if O’Ferrall were not expressly authorized to execute a contract of sale, he had the implied power to do so if necessary to accomplish the purpose of his employment. In support of this position, she has relied on McGinnis v. Chance, 247 Md. 393, 399-400, 231 A. 2d 63 (1967), which held that a client is bound by the acts of his attorney according to the ordinary principles of agency.

The mere retention of an agent, broker or attorney, to procure a purchaser of real estate, or to negotiate the terms of a real estate transaction, does not confer upon the agent the implied authority to make a contract of sale. Strawn v. Jones, 264 Md. 95, 99, 285 A. 2d 659 (1972); Daskais v. Kline, 188 Md. 541, 551, 53 A. 2d 289 (1947); Karupkat v. Zoph, 140 Md. 242, 245, 117 A. 761 (1922); Brown v. Hogan, 138 Md. 257, 266-270, 113 A. 756 (1921). See also Kaufmann v. Adalman, 186 Md. 639, 648, 47 A. 2d 755 (1945).

In Brown v. Hogan, supra, the owner of a house told his attorney that the property was for sale and authorized him to find a purchaser at a specified price. The attorney executed a contract of sale, on behalf of the owner, with Hogan. The attorney did not notify the owner of the contract until after the owner had executed a contract to sell the property to Brown. The trial court ordered specific performance in favor of Hogan, but the Court of Appeals reversed, holding that an agent does not have implied authority to execute a contract to sell real estate which is binding on his principal. The Court, observing that there are two lines of authority on the question, stated that “those [cases] which hold that a broker or agent has an implied power to make a contract of sale of real estate, when he is authorized to obtain a purchaser or to sell, are greatly in the minority,” and held that in Maryland an agent has no such implied power. Brown v. Hogan, supra, 138 Md. at 266.

Recently, in Strawn v. Jones, supra, 264 Md. at 99, the Court of Appeals reiterated:

“Even assuming Faber has established his agency, that alone does not allow him to do more than merely negotiate for Harry. And the capacity to negotiate by itself does not give him the right to bind his principal to a contract.”

These cases are dispositive of the contention that O’Ferrall, as an agent, had the implied authority to bind Mrs. Mueller to a contract.

(3)

Appellant’s final contention appears to be that O’Ferrall was clothed with apparent authority to make a binding offer on behalf of Mrs. Mueller.

Apparent authority may arise when the actions of the principal, reasonably interpreted, cause a third person to believe in good faith that the principal consents to the acts of the agent. Apparent authority also may arise when the principal knowingly permits the agent to act in a certain manner as if he were authorized. The action or manifestation of authority giving rise to the reliance must be that of the principal, and the reliance by the third person on the action or manifestation of authority must be reasonable. Parker v. Junior Press Printing, 266 Md. 721, 727-730, 296 A. 2d 377 (1972); Reserve Ins. Co. v. Duckett, 240 Md. 591, 600-601, 214 A. 2d 754 (1964); Restatement (Second) Agency § 27, comment A; Mechem, Outlines of Agency § 94.

The only basis for appellant’s argument that O’Ferrall was acting within the scope of apparent authority is the fact that he was retained by Mrs. Mueller to negotiate the terms of a possible settlement which anticipated the sale of an interest in real estate. As with implied authority, the mere retention of an attorney to negotiate a settlement, without any other action on the part of the principal, does not create the apparent authority of the agent to execute a contract imposing new liabilities or burdens on his client. Kallen v. Pollock, 412 Pa. 281, 194 A. 2d 227, 229 (1963). See Erickson v. Civic Plaza Nat. Bank of Kansas City, 422 S.W.2d 373 (Mo.App. 1967); Morr v. Crouch, 19 Ohio St.2d 24, 249 N.E.2d 780 (1969); Starling v. West Erie Avenue Building and Loan Ass’n, 333 Pa. 124, 3 A. 2d 387 (1939). Since, in the absence of express authority, an attorney has no implied authority to execute a contract for the sale of real estate binding on his client, it cannot be said that Mrs. Miller acted reasonably if her reliance on O’Ferrall’s authority was based solely on his status as Mrs. Mueller’s attorney. The record does not indicate any other actions by Mrs. Mueller upon which Mrs. Miller relied, such as executing a written general power of attorney as in Dixon v. Haft, 262 Md. 611, 278 A. 2d 566 (1971), or representations by Mrs. Mueller that Mr. O’Ferrall handled all matters pertaining to the settlement, as in Hamilton v. Coster, 249 Mass. 391, 144 N. E. 226 (1924). Mrs. Miller presented no evidence that Mrs. Mueller knew of the two offers made by O’Ferrall to Blum, so that it could be said that she knowingly permitted or tolerated her agent to act as though authorized, creating the appearance of authority. Hobdey v. Wilkinson, 201 Md. 517, 94 A. 2d 625 (1953).

Order affirmed.

Appellant to pay costs.

      . Appellee does not in this Court reiterate her argument concerning the Statute of Frauds as it applies to the sufficiency of the memorandum. Nor has it been argued that the Statute of Frauds would require that the agent’s authority be in writing. See, e.g., Whittle v. Brown, 217 Md. 161, 141 A. 2d 917 (1958); Moore v. Taylor, 81 Md. 644, 32 A. 320 (1895); Annot., 27 A.L.R. 606 (1923). Accordingly, we do not consider what bearing, if any, the Statute of Frauds might have on the issues in this case.


author: Menchine, J.,

text:
    MORRIS EDWIN ANGLIN, JR. v. STATE OF MARYLAND
    [No. 1152,
    September Term, 1974.]

      Decided September 9, 1975.

      The cause was argued before Orth, C. J., and Menchine and Moore, JJ.

      Reginald W. Bours, III, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Thomas A. Blair, Assistant State’s Attorney for Prince George’s County,, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Morris Edwin Anglin, Jr. was convicted by a jury in the Circuit Court for Prince George’s County for daytime housebreaking, and for grand larceny under one indictment (hereafter sometimes called Lyle case). In the same trial he was convicted also by the jury for receiving stolen goods of a value of over $100.00 under a second indictment (hereafter sometimes called Pearson case). He was sentenced to ten years imprisonment for daytime housebreaking; to fifteen years imprisonment for grand larceny to run consecutively; and to ten years imprisonment for receiving stolen goods to run concurrently.

The following contentions are made on appeal:

1. That appellant’s motion for severance or mistrial in the Pearson case was improperly denied.
2. That there was a fatal variance in the Lyle grand larceny case.
3. That the evidence was legally insufficient to convict in the Pearson case.
4. That the prosecutor’s closing argument requires reversal.
5. That the trial court erroneously restricted cross-examination of the State’s witnesses.
6. That the trial court erroneously restricted direct examination of defense witnesses.
7. That the trial court erroneously allowed an attorney witness to invoke privilege.
8. That the sentences imposed were illegal because:
(a) the sentencing judge gave consideration to disputed convictions or convictions when appellant was without counsel, or
(b) they were so unfair as to constitute denial of due process and equal protection of the laws.

1. Severance or Mistrial

By virtue of the State’s motion to consolidate, the Lyle indictment was joined with the Pearson indictment. A motion by appellant opposing the joinder of three indictments had been denied as to the two subject indictments but granted as to a third. Thereafter, the jury was empanelled in the consolidated cases. On the second day of trial appellant made an oral motion for a severance of the two indictments upon which trial had commenced. That motion was made upon the ground that the prosecution had stated that it would use less evidence in the Pearson case than discovery procedures had indicated to appellant would be presented by the State.

In the course of argument upon the motion for severance the following colloquy among appellant, State’s attorney and court occurred:

“THE COURT: Let me make sure of this joinder.
MR. BLAIR: In addition to the motion to consolidate, which was granted, there was the defendant’s motion opposing joinder of the three indictments for simultaneous trial dates. That was denied.
MR. ANGLIN: No, it was granted.
THE COURT: Granted as to one case but—
MR. BLAIR: But denied as to the two burglaries.
THE COURT: To the two burglary cases.
MR. ANGLIN: Right.
THE COURT: And there was a consolidation of the two. If I recall, Mr. Anglin’s concern was the trial of the third indictment jointly with the first and second indictments, and I felt that it may have been prejudicial to have allowed those three cases to be tried simultaneously, but apparently Mr. Anglin was in accord with the Court’s determination to try 14,485 and 14,486, I believe those are the numbers, jointly.
So, I would deny the motion to sever.”

Thus it is clear that the basis for the motion for severance was as heretofore recited. Assuming, without deciding, that the motion for severance was timely under Rule 735, we see no abuse of discretion by the trial judge. Hicks v. State, 9 Md. App. 25, 262 A. 2d 66; DiNatale v. State, 8 Md. App. 455, 260 A. 2d 669.

The record does not support the statement in appellant’s brief that there was a “motion for severance and/or mistrial.” The sole reference to a mistrial upon this issue was made by the trial judge in bench discussions with appellant concerning his motion for severance, namely, “So, the only thing the Court would do now to accommodate the defendant is to declare a mistrial, and I don’t see any grounds for that. I don’t have any grounds for a mistrial.” The appellant did not move for a mistrial below. That issue is not before us. Rule 1085.

We perceive no error.

2. Variance

The evidence shows that the items allegedly stolen by the appellant were owned by Nelson Lyle and his wife. The indictment had alleged that the stolen items were the property of Nelson Lyle.

The State contends that the issue was not raised below and that, under Rule 1085, it is not before us. Assuming, without deciding, that the issue was raised by appellant’s motion for a judgment of acquittal as to all counts, we find no fatal variance.

Appellant cites our decision in Sizemore v. State, 5 Md. App. 507, 248 A. 2d 417, relying on our statement at 512-13 [420-21]:

“We think it clear that the count did not state the ownership of those goods shown to be partnership goods in the manner stated to be sufficient by the statute. While it is not necessary to name each partner, the statute requires that one be named and to state such property to belong to the one named ‘and another or others.’ The count here did not do so, placing ownership only in Gerhardt. But that the count did not state the ownership of the goods in the form stated to be sufficient by the statute as to partnership goods did not render the count defective. It made a proper allegation of ownership in an individual and was valid as framed. The question is, however, whether there was a variance between the allegation and the proof. That is to say, may a conviction of larceny be had under an allegation that the goods stolen were the property of Warren Jay Gerhardt on proof that the goods were the property of Gerhardt and another as co-partners. We do not think so. In Melia v. State, 5 Md. App. 354, we said, ‘Since larceny is a crime against possession, * * * an allegation of the ownership of the property alleged to have been stolen is a necessary requisite in a larceny indictment and proof of ownership as laid in the indictment is an essential factor to justify a conviction * * *.’ (citations omitted) In Melia we held that there was a fatal variance when the allegation was that goods were owned by two corporations and the proof was that they were owned only by one corporation. Here the allegation was that goods were owned by one person and the allegation was not in the form stated to be sufficient as to ownership in that person and another as partners by Md. Code, Art. 27, § 605. As to those goods proved to be owned by that person and another as partners, the allegation was not sustained by the proof and there was a fatal variance.”

His reliance is misplaced. Sizemore turned upon the provisions of Article 27, § 605, introduced into the statutory law of Maryland by Ch. 63 § 1 of the Acts of 1852. The statute has remained without amendment since that time.

At the time of the passage of the statute, the property rights of a wife were limited in the extreme, as is demonstrated by the decision in Herzberg v. Sachse, 60 Md. 426, wherein it was said at 432:

“By virtue of the marriage tie the husband, as against all persons, except the wife or her trustee, (if she have one,) is entitled to the possession of her chattels. In fact, possessing her and them, his possession is her possession. His possession, therefore, may be interfered with to his injury. This is recognized in Rogers v. Roberts, 58 Md. 519.”

The statute was intended to simplify, not to make more complex, the requisite allegations of criminal charging documents. The statute was not intended to require more complex procedural allegations as to offenses involving the property of married women. Legislative action was not necessary to simplify allegations of ownership as to such property and manifestly was not intended to require more complex allegations as to such property.

Early and late it has been said that “it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced. ” Hooper v. Baltimore, 12 Md. 464, 475; Lutz v. State, 167 Md. 12, 15, 172 A. 354, 355-56. See also: Baltimore v. Baltimore Gas & Electric Co., 232 Md. 123, 192 A. 2d 87.

The subsequent passage of a married woman’s property act would not enlarge the effect of that prior statute. Annotation 2 A.L.R. 352, et seq.

In State v. Martin, 208 S.W.2d 203 (S. Ct., Mo., 1948), where the information charged the larceny of ladies’ rings and alleged that they were the property of the husband, the Court said at 208:

“If the rings actually belonged to both husband and wife it was still sufficient to plead ownership in him.”

To the same effect is Haley v. State, 191 S.W.2d 741, 742 (Ct. of Crim. App. of Texas, 1946).

We hold, accordingly, that the allegation of ownership in Nelson Lyle, followed by proof of ownership by himself and his wife, was sufficient under the common law. The variance between allegation and proof was not fatal.

3. Sufficiency of the Evidence

This issue is limited to the Pearson case. A jeweler in Laurel, Maryland testified that appellant and another came into his store in January, 1974 and “showed me the ring, told me that it had come from England by a merchant seaman, and wanted to sell it.” The jeweler at first declined to purchase the ring but did so about a half hour later after the appellant had returned to the store alone “and assured [him] that the ring was all right.” The jeweler made out a check for $300.00 payable to the appellant and then cashed the check for him. The jeweler then put the ring in his display window. An accident of good fortune caused it to be observed by its owner, Danielle R. Pearson. She testified that the ring was included among jewelry taken after a break-in of her home in January, 1974. She said the ring had been appraised for about $800.00 but had a present value of $1200.00.

In Anderson v. State, 9 Md. App. 532, 267 A. 2d 296, it was said at 541 [301]:

«* * * one exciusive possession of recently stolen goods, in the absence of reasonable explanation can be found to be the burglar, the thief, or if others are shown to be involved, the receiver.” (Emphasis added)

In the course of cross-examination of the jeweler, personally conducted by the appellant, the following testimony was elicited:

“Q What did I represent to you as to who owned the ring?
A Well, you said it was his ring.”

Thus the evidence clearly showed that another was involved. It was shown also that upon return to the jewelry store appellant was in exclusive possession of the ring.

There was evidence legally sufficient to convict in the Pearson case.

U. Prosecutor’s Closing Argument

No objection was made during the course of the argument by the prosecution. The issue is not before us. Rule 1085. Raimondi v. State, 12 Md. App. 322, 278 A. 2d 664.

5. Restriction Upon Cross-Examination

We preface our comment by pointing out that although counsel had been appointed for the appellant and was at the trial table during the entire course of the trial, it was the appellant in proper person who, almost exclusively, conducted the interrogation of his own witnesses and the cross-examination of the witnesses offered by the State.

The essence of this contention is that the cross-examination of the witnesses Billingsley, Sarkas and Seminuk was so curtailed as to constitute denial of the right of confrontation under the Sixth Amendment as made applicable to the States by the Fourteenth Amendment. He cites Davis v. Alaska, 94 S. Ct. 1105, 415 U.S. 308, 39 L.Ed.2d 347, as supporting the contention.

The similarity between the subject case and Davis v. Alaska begins and ends with the claimed deprivation of a constitutional right. Factually they are poles apart. In Davis, the trial judge had refused to permit cross-examination of a State’s witness who had claimed lack of concern over possible police suspicion and had categorically denied ever having been the subject of any similar law enforcement interrogation. The Supreme Court declared at 1109 [314; 352]:

“The witness was in effect asserting, under protection of the trial court’s ruling, a right to give a questionably truthful answer to a cross-examiner pursuing a relevant line of inquiry; it is doubtful whether the bold ‘No’ answer would have been given by Green absent a belief that he was shielded from traditional cross-examination. It would be difficult to conceive of a situation more clearly illustrating the need for cross-examination.”

It was in this factual context that the Supreme Court held at 1111 [318; 354]:

“On the basis of the limited cross-examination that was permitted the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor’s objection put it, a ‘rehash’ of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.' Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).” (Emphasis added)

In the subject case, on the other hand, the trial judge permitted lengthy, sometimes argumentative and frequently repetitious cross-examination of the witnesses to show the jury:

From Billingsley:

a. That the witness was an active participant with the accused in the commission of the Lyle offenses;
b. That the witness had been granted complete immunity as to his participation in the Lyle cases;
c. That the witness had a personal animus or bias against the accused.

From Sarkas:

a. That the witness had been charged with receiving three of the items stolen in the Lyle grand larceny case;
b. That at the instance of the State a stet had been entered with respect to the prosécution of Sarkas for receiving.

From Seminuk:

a. That the witness had a personal dislike for the accused:
b. That he had said, “[he] was going to make a career out of [Anglin]”;
c. That the witness had recommended giving complete immunity to Billingsley;
d. That the witness thought that such attitude toward immunity to Billingsley formed part of his duty as a detective.

In sum, the record in the subject case affirmatively demonstrates that the trial judge patiently allowed a most extensive inquiry into the reliability of the State’s witnesses such as would permit the jury to make an objective judgment as to the weight, if any, to be given to their testimony. We find no denial of a constitutional right to confrontation in this case.

On the contrary, our examination of the record persuades us that the trial judge permitted cross-examination to be conducted to or beyond the point where, in the exercise of a reasonable discretion, it might be halted. Kable v. State, 17 Md. App. 16, 31, 299 A. 2d 493, 501.

We perceive no error.

6. Restrictions Upon Direct Examination

Our examination of the record transcript shows that all objections interposed by the State in the course of the testimony of the defense witnesses Rhue, Hammond, McLoughlin, Sams, Cornwell and Ives properly were sustained by the trial judge. We find also that the State’s objections to proffers as to the testimony of proposed witnesses Katz and Barnett were properly sustained. The record indicates no restriction upon the testimony of the witness McKinley.

The propriety of the trial court’s rulings in the course of the testimony of the witness Vallario will be discussed in our comments upon appellant’s point #7.

7. The Ruling as to Privilege

In the course of testimony by the State’s witness Sarkas, he had said, inter alia, that in spite of the stet in the receiving case against him he felt that he still faced that charge. Sarkas had added that to his knowledge there was nothing preventing the State from reopening that case; that there was no written or oral agreement to the contrary; and that no promise whatsoever had been made to him by his attorney, Mr. Vallario.

The defendant called as a witness, attorney Joseph F. Vallario, Jr., for the apparent purpose of attempting to show that some greater promise had been made to Sarkas by the State than the mere stetting of the case. At an early point in the course of Mr. Vallario’s testimony, the State’s attorney made a motion in limine to bar the testimony of Vallario. The motion was denied. In the subsequent course of Vallario’s testimony, however, the trial judge had sustained the witness’s claim of privilege for the following question:

“Q Was there any agreement with the State’s Attorney who authorized and recommended a stet, any agreement with him relative to Mr. Sarkas’ testimony against me here today? ”

We are persuaded that the answer to that question would not be within the attorney-client privilege. It was error to sustain the objection. 8 Wigmore Evidence, § 2317 (McNaughton rev. 1961); Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 18, 174 A. 2d 768, 773-74.

We believe, however, that the error became harmless beyond a reasonable doubt by reason of subsequent testimony given by the witness without claim of privilege. The record shows the following:

“Q Mr. Vallario, bearing in mind the nature of the stet docket, do you know of anything which would prevent the State from prosecuting [Sarkas] tomorrow, do you understand my question?
A Well, I would say the State would have a perfect right to bring the charges.”

The record also includes, in further direct examination by trial counsel for appellant, the following:

“Q * * * If the State has agreed prior to the placing on the stet docket that they will not prosecute after it has been placed on the stet docket can they thereafter prosecute?
A There is some law to the effect that if there is an agreement between the State not to prosecute a case that they cannot prosecute. Without going further, looking into it, I am not sure, I am really not sure. I never had one prosecuted.”

In the light of the later evidence, we do not view the error as having produced prejudice to the accused.

8. The Sentences

a. Prior Convictions as Affecting

A presentence report had been made by the Department of Parole and Probation. Appellant, furnished a copy of that report, described it as “replete with many, many errors.” As to the F.B.I. record attached to the report, appellant said “* * * it is unbelievable. I deny the entire record.” Nonetheless, the prosecutor, without the offer of any other proof of convictions, said to the trial court: “Mr. Anglin’s criminal record began before I was born. It began right here in this county in 1945 and come a full circle since then. The stop overs in Washington, D. C., Anne Arundel County, Baltimore, Rockville, House of Corrections in Jessup, Las Vegas, Reno, Dallas, Birmingham, Alabama, Lewisburg, Pennsylvania, Canton, Ohio, San Francisco, Carson City, Nevada and Hollywood, Florida.”

Thereafter, the appellant further said to the court:

“I would again reiterate, I don’t have any record. There is no proof on the part of the State’s Attorney that I was represented by a lawyer in each one of these [convictions] * * *.”

In Carroll v. State, 19 Md. App. 179, 310 A. 2d 161, we discussed decisions by this Court following the landmark cases of Burgett v. Texas, 389 U. S. 109, 88 S. Ct. 258, 19 L.Ed.2d 319, and United States v. Tucker, 404 U. S. 443, 92 S. Ct. 589, 30 L.Ed.2d 592, relating to the use at sentencing of prior convictions obtained in violation of the fundamental right to counsel. In Carroll, we said: (184-85 [164])

“We pointed out in both Johnson, supra, and Moore, supra, that the burden is on the State to establish by ‘clear and convincing evidence that the defendant’s constitutional right to counsel was not infringed at the prior proceeding.’ The procedure that we spelled out in Johnson, supra, and reiterated in Moore, supra, was not intended to be a guide, that may or may not be used, but was enunciated and promulgated for the Bench and Bar to follow.”

In Moore v. State, 17 Md. App. 237, 300 A. 2d 388, we had said: (242-44 [391-92])

“We did three things in Johnson, which we decided 17 March 1970. First, we held that ‘the Burgett principle serves to exclude evidence of a prior conviction offered for the purpose of impeaching the credibility of an accused testifying on his own behalf when it is established that such conviction was obtained absent representation by counsel or a valid waiver thereof.’ 9 Md. App. at 175. Second, we held that ‘it is incumbent upon the defendant, when his objection to evidence of a prior conviction is on the ground that the conviction was constitutionally void to state his reasons to the court to enable it properly to determine the issue.’ Id., at 177. Third, we enunciated the procedure to be followed to invoke the exclusionary rule. When the defendant objects to evidence of prior convictions under the Burgett principle, the court shall conduct a hearing. ‘At the hearing the State shall first have the burden of producing evidence of a prior conviction, unless admitted by the defendant, sufficient to justify a finding by the court that the defendant has suffered such previous conviction . . . When this showing has been made the defendant must produce evidence tending to establish that his constitutional right to counsel was infringed in the prior proceeding at issue . . . The burden is then upon the State to prove by clear and convincing evidence that the defendant’s constitutional right to counsel was not infringed at the prior proceeding . . . The court shall make a finding on the basis of the evidence thus produced and shall exclude from the trial on the merits any prior conviction found to be constitutionally invalid. Any conviction found to be constitutionally valid shall be admitted in evidence . . .’ Id., at 177-78. This procedure is to be followed whenever the Burgett principle is invoked to exclude evidence of a prior conviction, whether such conviction is to be used to support guilt or to enhance punishment for another offense.
“Our holding as to the first matter proved to be right. In Loper v. Beto, 405 U.S. 473, decided 22 March 1972, the Supreme Court said, at 483: ‘Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law.’ Our holding as to the second matter proved to be wrong. In Bailey v. State, 263 Md. 424, decided 12 November 1971, the Court of Appeals discussed Johnson and said that under Rule 522 d 1 it is not necessary to state grounds for objections to evidence unless requested by the court. It saw no room in the Rule or in the decisions for making the distinction we made as to stating grounds of objection when the Burgett principle was applicable. 263 Md. at 428. As to the third matter, we see nothing in Bailey to indicate that the procedure we set out in Johnson is improper or is to be discarded. We affirm that it is to be followed when it becomes known that objection to evidence of a prior conviction is grounded on Burgett.”

In the subject case the trial judge did not conduct the hearing mandated by our decisions in Johnson, Moore and Carroll, supra. Thus, unless the record affirmatively demonstrates that the prior convictions were not used by the trial judge to enhance punishment, we must vacate the sentence and remand the case for resentencing.

The trial judge, in the course of comments prior to sentencing said, inter alia:

“But, I really don’t have to put any credibility to this F.B.I. report because I think what you said to me today, about your own activities indicates the type of person I am dealing with in this sentencing proceeding.
“So, I don’t really need to consider the written report of alleged offenses committed by you in determining what sort of person I’m dealing with and what sort of sentence I ought to impose, because I think the problem is far deeper than individual commission of an individual crime.”

Those comments by the trial judge had been made after Anglin had been allowed allocution extending over more than forty-five minutes.

The trial judge then imposed consecutive sentences of ten and fifteen years for the burglary and grand larceny offenses and ten years concurrent for the receiving stolen goods offense.

We believe that this record demonstrates affirmatively that prior possibly infirm convictions were not used to enhance punishment. We find no Burgett, Tucker constitutional impediment in the sentences.

b. Due Process and Equal Protection

In Lipscomb v. State, 5 Md. App. 500, 248 A. 2d 491, we said at 506-07 [494-95]:

“It is well settled that imposition of sentence in a criminal case in this State is a matter peculiarly within the province of the trial judge, Reid v. State, 200 Md. 89, Gee v. State, 2 Md. App. 61; and that a sentence within limits prescribed by law will be reviewed on appeal only where grossly and inordinately disproportionate to the offense to such an extent that the sentence was evidently dictated not by a sense of public duty, but by passion, prejudice, ill will, or other unworthy motive. James v. State, 242 Md. 424, Fisher v. State, 1 Md. App. 505.
“The sentence imposed was within statutory limits, and there is no showing that it was prompted by any unworthy motive on the part of the trial judge.”

Here, also, the sentences imposed were within statutory limits. There is no evidence tending to show that the sentences were influenced by an unworthy motive.

The sentences were not disproportionate to the offenses and are valid.

Judgments affirmed.

      . The second count of indictment 14485 had charged that appellant^ in the daytime, unlawfully did break into the dwelling of Nelson Lyle with intent to steal.

      . The third count of indictment 14485 had charged grand larceny of the goods of Nelson Lyle.

      . The fourth count of indictment 14486 had charged that appellant had received the stolen property of Danielle R. Pearson.

      . The section reads as follows:
      “In any indictment for any felony or misdemeanor wherein it shall be requisite to state the ownership or possession of any property whatsoever, whether real or personal which shall belong to or be in the possession of more than one person, whether such persons be partners in trade, joint tenants, parceners, tenants in common or trustees, "it shall be sufficient to name one of such persons, and to state such property to belong or to be in possession of the person so named, and another or others as the case may be; and whenever in any indictment for any felony or misdemeanor, it shall be necessary to mention for any purpose whatever any partners, joint tenants, parceners, tenants in common or trustees, it shall be sufficient to describe them in the manner aforesaid.”

      . Introduced to Maryland Law as Ch. 457 of the Acts of 1898.


text:
    WILLIE JAMES WILSON, the younger v. STATE OF MARYLAND
    [No. 5,
    September Term, 1975.]

      Decided September 9, 1975.

      The cause was submitted on briefs to Morton, Menchine and Mason, JJ.
    Submitted by Michael S. Libowitz, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, A ttomey General, Bruce C. S'pizler, A ssistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Clifton Gordy, Assistant State’s Attorney for Baltimore City, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Willie James Wilson, Jr., (appellant) charged with the murder of one Brenda Gorham, and with the use of a handgun in a crime of violence, was convicted by a jury in the Criminal Court of Baltimore of manslaughter and the handgun offense. He was sentenced to concurrent terms of five years imprisonment.

On appeal Wilson contends that the charge of the trial court: (1) imposed upon him an erroneous burden of proof and (2) failed to instruct that conviction of the handgun offense could not occur if the jury found appellant guilty of involuntary manslaughter.

The Court’s Charge as to Burden of Proof

It is quite clear from evidence introduced both by the State and the defense that the evidence compelled the jury to consider the question whether death occurred while the appellant was performing a lawful act, and whether that lawful act was accompanied by criminal culpable negligence.

Evidence offered by the State included testimony by the police officer who conducted the initial investigation that appellant “stated that the young lady was on drugs and he tried to get the gun out of her hand, and it went off.” The father of appellant, also called by the State, testified that he had been awakened by his son, informed that Brenda had been shot and received the explanation “we were tussling over the gun, and the gun went off.” An ambulance attendant, also offered by the State, testified, inter alia, that appellant, while accompanying the victim in an ambulance from the scene of the alleged offense to the hospital, had stated: “ ‘that doggone girl she should not have been messing around like that * * *.’ He seemed very frustrated at the situation.”

The mother of appellant, the only eyewitness, testifying for the defense, said that she saw Brenda pick up a pistol and saw her son try to get it out of her hand. She said that the hands of the appellant and the victim were upward at the time the shot was fired. The victim was.5 feet 1 inch tall. A photo of the victim and appellant taken sometime prior to the incident showed that appellant was very much taller. The medical examiner testified that, “the bullet entered * * * slightly in front of the ear and high on top of the scalp * * * and passed downward to approximately a forty-five degree angle to the floor. * * * this is a close-range shot. Certainly, in this case, estimated to be eighteen inches or less in terms of the distance from the top of the head to the end of the gun at the time it was discharged.” The testimony of the appellant also clearly raised the issue of excusable homicide by misadventure or accident.

The court’s advisory charge to the jury had included an instruction grounded upon self-defense and correctly had pointed out that this affirmative defense imposed upon the accused the burden of proof. Davis v. State, 237 Md. 97, 205 A. 2d 254, cert. den. 86 S. Ct. 402, 382 U. S. 945, 15 L.Ed.2d 354.

The trial judge then went on to give the following advisory instruction:

“Now, the other defense or combination of the defenses of the defendant is, that the shooting was accidental, that he did not intend to fire the weapon, if he did fire the weapon, or that the firing of the gun was not caused by gross negligence or wantonness on his part, which means, an utter disregard for human life and that, therefore, he is not guilty of the commission of any crime.
“If the weapon was accidentally discharged and that was not caused by gross negligence or wantonness on the part of the defendant, then the defendant would not be guilty of any crime if you so find that to be.
“On the other hand, if it was unintentionally discharged, but you, the jury, found that it was handled with such gross negligence on the defendant’s part under the existing circumstances or wantonly by the defendant which means, without regard to human life, then you could find the defendant guilty of manslaughter.”

Had the charge of the court been concluded at that point, we apparently would have no dispute because the appellant has not questioned the propriety of that portion of the court’s charge. He does, however, vigorously attack the court’s additional instruction, namely:

“Again, the burden of proving accidental firing without gross negligence or wantonness is upon the defendant but that burden is met by only preponderance of the evidence and not by evidence beyond a reasonable doubt.”

The State argues that there was no objection below so that the issue is not before us. Rule 756 f. The appellant argues alternatively (a) that objection was made below or (b) that we should consider the issue as plain error under Rule 756 g. The record shows that defense counsel noted the following objection to the charge:

“What I am most concerned with here is that the Court talks about proof many times, but the Court never mentioned that a defendant can be acquitted on the lack of State’s evidence. * * * And that the defendant has a right to rely upon the failure of the prosecution to establish such proof and individual elements.”

We think that this objection, although imprecise, was adequate to raise the issue below. In any event, we are persuaded that the instruction, if erroneous, was plain error material to the rights of the accused and properly should be considered by us under Rule 756 g. Brown v. State, 14 Md. App. 415, 287 A. 2d 62.

It is uniformly recognized that common law manslaughter is divided into two classifications, namely, voluntary manslaughter and involuntary manslaughter. In turn, involuntary manslaughter falls within distinct classifications. Clark and Marshall, Crimes, (7th Ed., 1967) suggests the following divisions:

“§ 10.12 Involuntary — Unintentional Homicides During:
1. Commission of a criminal act not amounting to a felony, nor naturally tending to cause death or grievous bodily harm.
2. Omission to perform a legal duty, under circumstances evidencing criminal-culpable negligence.
3. Performing lawful act with criminal-culpable negligence.”

That division is recognized in Maryland. State v. Gibson, 4 Md. App. 236, 242, 242 A. 2d 575, 578-79, affirmed and opinion adopted, 254 Md. 399, 254 A. 2d 691.

Equally well settled is the rule of law that the offense may be excusable (a) because of misadventure or per infortunium or (b) in self-defense or se defendendo. Clark and Marshall, supra, at 470-71. The distinction between excusable homicide by misadventure or per infortunium (accident) on the one hand and excusable homicide in self-defense, or se defendendo on the other, early was recognized in the common law. 4 Blackstone Commentaries, 182.

In illustration of accident or misadventure, Clark and Marshall, supra, say at 476:

“For instance, accused is entitled to be .acquitted where he was lawfully acting in self-defense and his assailant’s death resulted from misadventure or accident, such as the accidental discharge of a weapon in the struggle over its possession. If a man kills another in doing a lawful act in a lawful manner, that is, without negligence, the homicide is excusable, ‘for the act is lawful, and the effect is merely accidental.’ ”

Dictum in the early case of Rex v. Woodburne & Coke, (1722, England) 16 How. St. Tr. 53, 80, illustrates vividly the marked legal distinction between a homicide occurring in the course of lawful as distinguished from unlawful actions:

“* * * if a man shoots at a wild fowl, wherein no man hath any property, and by such shooting happens unawares to kill a man; this homicide is not felony, but only a misadventure or chance-medley, because it was an accident that happened in the doing of a lawful act: but if this man had shot at a tame fowl, wherein another had property, but not with intention to steal it, and by such shooting had accidentally killed a man, he would then have been guilty of manslaughter, because done in prosecution of an unlawful action, viz. committing a trespass on another’s property;

In 41 C.J.S. Homicide, § 387, it is said:

“Where the evidence warrants it, the court should fully, correctly, and explicitly charge as to the law in relation to the defense of accidental killing as applied to the facts of the case, * * *.”

The issue as to the burden of proof in involuntary manslaughter cases wherein the evidence warrants consideration of excusable homicide by misadventure appears not to have been directly considered in this State. The general rale is thus stated in 40 Am.Jur.2d Homicide:

“§ 253. Accident or misadventure.
A defense of accidental killing to a prosecution for homicide denies that the killing was intentional, but does not throw upon or shift to the accused the burden of proving that the homicide occurred by accident or misadventure. It is the general rule that where the defense of accidental killing is set up, the burden rests upon the prosecution to show that the killing was wilful and intentional, or that it was due to a reckless disregard of the safety of others, * * * »

Wharton on Homicide, (3d Ed., 1907) stresses the distinction between self-defense and accidental killing, saying at 354:

“Self-defense is an affirmative, positive, intentional act, and does not include an accidental killing; there can be no such thing as accidental self-defense.”

adding at 568:

“A person charged with homicide pleading misadventure or accidental killing is not required to establish his plea by a preponderance of the evidence; the state must overcome such plea beyond reasonable doubt.”

A leading case on the issue is State v. McDaniel, 47 S. E. 384 (S. Ct., S. C., 1904) where the Court said at 388-89:

“The rule has been established in this state that, where self-defense is pleaded to an indictment, the defendant must establish it by the preponderance of the evidence, but at the same time the guilt of the accused must be made to appear beyond a reasonable doubt. State v. Welsh, 29 S. C. 4, 6 S. E. 894; State v. Bodie, 33 S. C. 132, 11 S. E. 624. Whether such a rule, as applied to self-defense, is sound or practically useful, we need not now inquire. If there is no distinction between self-defense and homicide by accident, when set up by plea and evidence, then, unquestionably, the circuit court charged the jury correctly, as he charged in accordance with the law as laid down in repeated decisions concerning self-defense as an affirmative defense. But we do not think that a defense that the homicide was accidental is in any sense an affirmative defense. It is distinguishable from self-defense as a plea, which admits an intentional killing, and sets up as justification a necessity to kill in order to save the accused from death or serious bodily harm, whereas a defense of homicide by accident denies that the killing was intentional. In Commonwealth v. McKie, 1 Gray, 61, 61 Am. Dec. 410, the logical rule is thus stated: ‘Where the defendant sets up no separate independent fact in answer to a criminal charge, but confines his defense to the original transaction charged as criminal, with its accompanying circumstances, the burden of proof does not change, but remains on the government to satisfy the jury that the act was unjustifiable and unlawful.’ In the case of State v. Cross (W. Va.) 24 S. E. 996, the court held that the defense of accidental killing is a denial of the criminal intent, and throws upon the state the burden of proving such intent beyond a reasonable doubt, and the accused is not required to sustain such defense by a preponderance of testimony. It was error, therefore, to instruct the jury to disregard the plea of accidental homicide if the defendant failed to establish it by the preponderance of the evidence.” (Emphasis added)

In State v. Cross, 24 S. E. 996 (S. Ct. of Appeals, W. Va., 1896), it was said at 997-98:

“The circuit court erroneously put the question of accidental killing in the same category with willful killing, where some matter such as self-defense or provocation is asserted by way of mitigation, excuse, or justification. In such cases the burden is on the accused to establish his defense by a preponderance of evidence. But the claim that the killing was accidental goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable doubt.”

In State v. Matheson, 103 N. W. 137 (S. Ct., Iowa, 1905), in reversing because of an improper charge, the Court said at 140-41:

“It is to be borne in mind that the theory of the defense was that defendant was innocent of any wrongful intent, and that his revolver was accidentally discharged. This was not a defense by way of justification or excuse, but, if true, it completely negatived the commission of any crime. * * *, it seems to us the effect of this instruction was to practically say to the jury that, unless the defendant proved by a preponderance of the evidence that the shooting was accidental, they should presume guilt from the fact of the discharge of the pistol and the injury to Baker.”

In State v. Budge, 137 A. 244 (S. Jud. Ct. of Maine, 1927), a conviction for manslaughter was reversed where the trial court’s charge had inferentially cast the burden of proof upon the accused, the Court saying at 245-46:

“We think the exception must be sustained. Not only was the instruction erroneous, but was couched in language that under the circumstances of the case and in the light of other parts of the charge might well tend to mislead the jury as to the essential elements of the offense necessary to be proved by the state, and thereby the respondent was aggrieved. State v. Gallant, 124 Me. 135, 126 A. 576.
“The only inference the jury could have drawn from the instruction was that, if the respondent was engaged in an unlawful act at the time of the homicide, they must find him guilty. Not only was the respondent aggrieved in this respect, but the instruction put upon him a burden which the law does not impose. To acquit of manslaughter on the ground of misadventure, a jury is not obliged to find as a fact that a respondent was not at the time of the homicide engaged in doing an unlawful act. If that was a controlling fact, no more is required than that the jury should have a reasonable doubt. The burden is not on a respondent to prove the homicide occurred by misadventure, but on the state to show it was either due to a reckless disregard of the safety of others, or that, if it resulted while in the performance of an unlawful act and involuntary, the unlawful act was malum in se, or, if malum prohibitum, that it was at least the proximate cause of the homicide.”

Although we have been referred to no Maryland decision in which the specific issue of burden of proof has been discussed, the necessary implication of language used in State v. Gibson, supra, is that it rests upon the State. In Gibson, Chief Judge Hammond, for the Court of Appeals, in the course of approving “the careful and thorough opinion of Chief Judge Murphy of the Court, in State v. Gibson, 4 Md. App. 236,” had commented (at 400 of 254 Md.):

“* * * The State’s attorney for Baltimore County seemingly feared he could not prove gross negligence for in the first four counts he sought to charge involuntary manslaughter by automobile solely by reason of a violation of law without alleging gross negligence.” (Emphasis added)

Chief Judge Murphy, for this Court, had said in State v. Gibson, supra, (at 242 of Md. App.):

“It is well settled in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself, or by negligently failing to perform a legal duty (the second and third classes of involuntary manslaughter above delineated), the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life.” (Emphasis added)

We hold, accordingly, that where, as here, there is evidence tending to show that a killing was unintentional, occasioned in the course of a lawful act, the accused is entitled to an instruction that the burden rests upon the State to prove beyond a reasonable doubt that such lawful act was grossly negligent. The charge of the trial court, placing that burden of proof upon the accused, was reversible error.

The Charge as to the Handgun

No request was made to the trial court for an instruction that involuntary manslaughter would not legally suffice as a base for conviction of a handgun offense. Thus, the alleged error was of omission and would not qualify as “plain error” under Rule 756 g. The issue is not before us. Brown v. State, supra.

The record discloses no other handgun use by appellant than in connection with the alleged homicide offense. In the light of the circumstance that we are compelled to reverse the conviction for that alleged crime and considering that such alleged homicide solely was the basis for the handgun conviction, we must reverse also as to the latter. We shall, accordingly, address ourselves to the question for the guidance of the lower court. Rule 1085. Ford v. State, 274 Md. 546, inapplicable in these circumstances.

The appellant was charged under Article 27, § 36B (d) that reads as follows:

“(d) Unlawful use of handgun in commission of crime. — Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.

The subtitle “Pistols” of Article 27 of which § 441 forms a part, defines “Crime of Violence” and excludes involuntary manslaughter from its terms. That section, however, in specific terms is restricted to the particular subtitle. That and other sections of the subtitle relate (with two minor exceptions ) to the sale or transfer of pistols and revolvers.

Section 36B (d), on the other hand, is intended to control the use of handguns. It is significant that its passage postdates § 441 and contains disjunctively a prohibition against use of a handgun “in the commission of any felony” as well as in “a crime of violence.” Involuntary manslaughter is a felony. Chase v. Jenifer, 219 Md. 564, 569, 150 A. 2d 251, 254.

It would have been proper to deny the requested instruction had the same been sought.

Because it is necessary to reverse and remand for a new trial, a third issue raised by appellant is not reached.

Judgments reversed..

Case remandad for new trial.

      . The section in appropriate part, reads as follows:
      “(a) As used in this subtitle—
      (e) The term ‘crime of vióleme’ means abduction; arson; burglary, including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; robbery; and sodomy; or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.”

      . Section 445 prohibits possession by “any person who has been convicted of a crime of violence, * * * who is a fugitive from justice or a habitual drunkard, or addicted to or an habitual user of narcotics, barbituates or amphetamines, * * *.”
      Section 446 prohibits possession of “any stolen pistol or revolver, knowing or having reasonable cause to believe the same to have been stolen.”