text:
    JAMES R. DOVE, SR. v. STATE OF MARYLAND
    [No. 137,
    September Term, 1976.]

      Decided November 9, 1976.

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

      Philip A. Dales, III, Assigned Public Defender, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Albert

      Gallatin Warfield, III, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Gerald K. Anders, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The appellant, James R. Dove, Sr., was convicted by a jury in the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding, of rape and sentenced to seven years. On this appeal Dove raises five issues:

1) The trial court unduly restricted the scope of cross-examination;
2) The trial court incorrectly disqualified a character witness;
3) The trial court improperly restricted appellant’s direct examination of several witnesses by sustaining objections on the grounds that the questions were leading;
4) The evidence was insufficient in regard to lack of consent on the part of the victim;
5) The trial court committed reversible error when it gave an “Allen” charge to the jury.

Margaret (Meg) Welles, the then fifteen year old prosecutrix, testified that at a few minutes before midnight on July 24, 1975, she was walking home near Mayo Beach. A ear driven by the appellant passed, stopped, and the passenger, Mark Dove, called her name. Meg walked up to the automobile and inquired as to the whereabouts of her boyfriend, Rusty. She was told that he had last been seen near her house. She then accepted an offer to drive her home. After getting into the car, the three drove to a bar called Captain Seaweed’s. They conversed with a man by the name of George for several minutes in the parking lot and then drove to Beach Three in Woodland Beach. Mark Dove exited the car and the prosecutrix attempted to get out, since she lived “right around the corner,” but her arm was grabbed by the appellant. The door closed and the appellant drove to a school yard on Mayo Road. The appellant began kissing the prosecutrix and she “halfway kissed him back once.” She then tried to push him away and open the car door, which she found to be locked. While she was attempting to open the door, the appellant ripped her blouse, unzipped her pants, and tried to pull them down. At this point the prosecutrix asked to be let out of the car to go to the bathroom. The appellant stated that he would agree to this only if she took her pants off, which she refused. He then crossed over the seat, opened the door on the driver’s side, got out of the car, and pulled the prosecutrix across the seat and out of the car, so they were standing together. The girl broke free and began to run but tripped and fell. She began to scream. The appellant fell on top of her and cupped his hand over her mouth. She pulled his hand from her mouth and continued to scream. Finally, he cupped her nose and mouth so she could not breathe and told her not to make any more noise. To this she replied, “Okay. Okay.” He then held her hands over her head, undressed them both, and had intercourse with her. At the conclusion of this the prosecutrix was allowed to walk to the end of the nearby pier. The appellant got into his automobile and left. The prosecutrix began to walk home. On the way she saw Jean and Sue Brady. She told them she had been raped and they took her home. After she could calm herself enough to tell her grandmother what had happened she was taken to the police station where she filed a complaint. As a result of this incident the prosecutrix received a scrape on one of her elbows and on the small of her back.

Elsie L. Behlke testified that shortly after 1:00 a.m. on the night in question she was lying in bed in her home when she heard very loud crying coming from the area of the Edgewater School. It was the voice of a young lady or woman, and it sounded “like she was pleading.” This continued for approximately twenty minutes so Mrs. Behlke called the police. After the call to the police, the crying ceased and the witness heard a car door slam and a motor start.

It was stipulated that a doctor’s report of an examination of the prosecutrix offered into evidence showed the presence of spermatozoa but no evidence of trauma, swelling or bruising anywhere on her body.

The appellant testified that following the championship victory of his softball team, he went to a celebration at the tavern of his team’s sponsor, Captain Seaweed’s. After consuming a number of beers, he and Mark Dove left the tavern and drove around the neighborhood. On Londontowne Road they observed the prosecutrix waving so they stopped. The prosecutrix got into the car between the two men. They drove to Captain Seaweed’s where the appellant asked the prosecutrix to go parking. She agreed. The appellant drove to Beach Three where he let Mark Dove and another companion who had gotten into the car at Captain Seaweed’s out of the automobile. In response to a question from Mark Dove concerning whether she was getting out of the car the prosecutrix replied that she was staying. They then drove to Pine Whiff Beach. Upon arriving at the beach the appellant got out of the car to go to the bathroom. He got back in the car and began kissing the prosecutrix. In order to attain a more comfortable setting they got out of the car. The prosecutrix voluntarily laid on the ground and took her pants off. The appellant had intercourse with her to which there was no objection. No force was used. At the culmination of this he informed her that he had to go home because his wife would be worried. At this point the prosecutrix became angry, walked down the pier, and refused an offer for a ride home. The appellant left.

Cro ss-Examination

The appellant cites three areas in which his cross-examination of the prosecutrix was limited by the trial court and contends that this denied him a fair and impartial trial.

During the course of cross-examination the prosecutrix was asked twice whether prior to meeting the appellant and Mark Dove on the night in question she had been in the presence of anyone who was smoking marijuana. Objections to these questions were sustained by the trial court.

Generally, cross-examination is restricted to those points on which the witness had testified on direct examination. Caldwell v. State, 276 Md. 612, 349 A. 2d 623 (1976). This rule is not applied to limit cross-examination of the witness to specific details brought out on direct examination “but permits full inquiry of the subject matter.” Williams v. Graff, 194 Md. 516, 522, 71 A. 2d 450 (1950). Furthermore, it is proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. DeLilly v. State, 11 Md. App. 676, 681, 276 A. 2d 417 (1971). Seemingly therefore, a witness may be questioned regarding whether he was sober, intoxicated, or under the influence of drugs at the time of the event in question. 2 Wharton’s Criminal Evidence § 434. The appellant alleges in his brief that these questions were not a mere fishing expedition since he had a basis for believing that the witness used marijuana and possibly used it on the night in question. The basis for this belief was not conveyed to the trial judge. We are not persuaded that the trial judge abused his discretion by restricting cross-examination in this situation where it appears totally immaterial whether anyone in the prosecutrix’s presence was smoking marijuana. If there were a legitimate basis for this line of questioning counsel should have preliminarily satisfied the trial judge’s doubts. See Mulligan v. State, 18 Md. App. 588, 597, 308 A. 2d 418 (1973).

Secondly, the appellant contends that he was wrongfully excluded from cross-examining the prosecutrix in reference to prior inconsistent statements made by her to the examining doctor, the detective, the polygraph examiner, and her neighbor. On cross-examination the witness was asked the following:

“Q. Now, after this occasion, were you ever examined by a doctor?
A. Yes. That night.
Q. That night?
Mr. Anders: Objection. That wasn’t covered on direct.
Court: Sustained.
Mr. Weidemeyer: I’ll strike it.”
“Q. Now, what did you tell the doctor when you were examined?
Mr. Anders: Objection.
Court: Sustained.
Q. Did you talk to a Detective?
A. Yes.
Q. When did you talk to a Detective?
A. I was taken to the Police Station and that’s where Detective Marshall was called. When I got to the hospital, Detective Marshall was there.
Q. Well, what did you tell him?
Mr. Anders: Objection.
Court: Sustained.
Mr. Weidemeyer: I have no further questions.
Mr. Anders: I have no further questions.”

As we have noted before the appellant had the right to discredit the testimony given by the witness through the use of prior inconsistent statements. DeLilly v. State, supra. Under certain circumstances it is not necessary for the appellant to proffer what the alleged inconsistent statements contain in order to present them into evidence. Yowell v. State, 28 Md. App. 279, 283, 344 A. 2d 442 (1975). In the case at bar, however, there was not even a suggestion that the appellant was attempting to impeach by the use of a prior inconsistent statement. Under direct examination the witness testified to the circumstances of the confrontation. Her statements to the police and the examining physician were not discussed in any detail. With the facts before him at the time of the cross-examination we find that the trial judge did not abuse his discretion by sustaining objections on the grounds that appellant’s questions went beyond the scope of direct examination. It was necessary for the appellant to lay some foundation in order to impeach the witness by the use of her prior statements. White v. State, 23 Md. App. 151, 162, 326 A. 2d 219 (1974). We further note that the appellant introduced the doctor’s report for identification and the investigating officer was called to the stand to testify. The appellant had ample opportunity to pursue the inconsistencies at those times.

The third alleged error concerning the restriction of cross-examination deals with the appellant’s right to question the witness in regard to a sexual act with her boyfriend occurring two nights before the night in question. At the outset of the trial, the State made an oral motion in limine to exclude testimony concerning prior acts of intercourse between the victim and third persons. The following transpired:

“I think that if a doctor’s report shows upon examination sperm, it’s entirely proper to go into the question of when and with whom, other persons, the complaining witness may have had intercourse. So I think that under those circumstances, we would be entirely justified in investigating on that point as well as to attempt to bring in evidence of such.
Mr. Anders: Well, I don’t quite understand that argument, but it’s still my understanding of Maryland law that prior acts of intercourse with anyone other than the defendant is inadmissible
Court: Well, that’s correct.
Mr. Anders:. . . at a trial, and so I would request that that question not be asked.
Court: Well, don’t ask the question, but at the time you want to ask it, approach the bench and I will hear what you have to say and then either permit you to ask it or not.”

No questions were asked at trial concerning the prior sex acts. In the absence of such questions we decline to decide this point initially on appeal. Md. Rule 1085.

At the sentence hearing the appellant made a motion for a new trial. One of the grounds for this motion was that Deinhardt v. State, 29 Md. App. 391, 348 A. 2d 286 (1975) and State v. DeLawder, 28 Md. App. 212, 344 A. 2d 446 (1975), stand for the proposition that the appellant should have been allowed to introduce testimony concerning a prior sex act of the prosecutrix because it was the rejection from that act plus the rejection of love from the appellant which motivated her to fabricate the rape charge. We agree that these cases stand for the proposition that questions designed to develop bias, prejudice, or ulterior motive are admissible. Again we point out, however, that the trial judge did not prevent the defense from raising these questions on cross-examination but stated that he would decide the point when it arose. The issue never arose.

Character Witness

During the presentation of his defense the appellant called Rosemarie Paddy to the stand. She stated that she had known Meg Welles for about five years and knew other people in the community in which she and Meg lived who also knew Meg. She stated that she had “been to a lot of parties where she’s (Meg) been, and she doesn’t have a very good reputation.” When asked whether other people who knew Meg felt the same way, however, the witness replied, “I don’t know, really. I can’t say that. I don’t know.” On cross-examination she stated that the basis for her opinion was that she had heard a lot of guys talk about Meg and had seen Meg at parties with different guys. She admitted that the boys say a lot of things that are untrue in this regard and she did not always believe what was said. The trial judge ruled that she was not qualified.

In Caldwell v. State, supra at 614, 615, it was reiterated that the general reputation in a particular community of a rape complainant for chastity is admissible where consent is an issue. The common law rule does not permit the witness to express her own independent opinion even though it may be based on acquaintance, observations or actual knowledge. Taylor v. State, 28 Md. App. 560, 568 n.6, 346 A. 2d 718 (1975), aff'd, 278 Md. 150, 360 A. 2d 430 (1976). The witness stated that she was only testifying as to her own opinion of Meg’s reputation and did not know what her general reputation was. For this reason she could not qualify as a character witness under the common law.

The common law rule appears to have been modified by Courts and Judicial Proceedings Article § 9-115 which provides:

“Where character evidence is otherwise relevant to the proceeding, no person offered as a character witness who has an adequate basis for forming an opinion as to another person’s character shall hereafter be excluded from giving evidence based on personal opinion to prove character, either in person or by deposition, in any suit, action or proceeding, civil or criminal, in any court or before any judge, or jury of the State.”

As a result of this enactment if the witness had an adequate basis for her testimony it should have been admitted. The basis for her testimony was that she had seen Meg with “a couple of different guys at a couple of different parties.” There were always numerous boys and girls at these parties. The witness had never observed Meg doing anything immoral or improper. She had heard boys talk about Meg, but a lot of the things they said about the girls were unfair. The underlying purpose of the rules governing the admissibility of evidence is to assure that the reputation evidence received is that which indicates the true character of the individual. It is in the discretion of the trial judge to determine whether the reputation sought to be proved meets this standard. While we recognize that the witness had known the prosecutrix for five years we cannot say that the trial judge abused his discretion when the basis of the witness’s testimony was the statements of boys’ sexual conquests when she recognized that in many cases they were exaggerated.

Leading Questions

The appellant cites three areas in which objections to his questions on direct examination were sustained and contends that these rulings were erroneous and greatly prejudiced his defense. Two of these areas concern an attempt to elicit testimony concerning the prosecutrix’s sobriety and physical condition. During the direct examination of Harry Dove, the appellant’s father, the witness was asked:

“Q. Okay. Now, at that time, would you please give the jury your opinion of your son’s sobriety.
Mr. Anders: Objection.
Court: I’ll sustain the objection.
Q. How did your son act?
A. Well, he acted like he was under the influence of alcohol.
Q. Okay. How about the other people in the car?
Mr. Anders: Objection.
Court: Sustained.
Q. Okay, did you see anyone in the car consume any alcohol?
Mr. Anders: Objection.
Court: Sustained.
Q. What was Mark Dove doing in the car?
Mr. Anders: Objection.
Court: I’ll sustain the objection.”

While George Rawlings was testifying on direct examination the following transpired:

“Q. Okay. What did you see Jim doing?
A. What did I see him do?
Q. Yes. When you first saw him.
Mr. Anders: Objection.
Court: Sustained.
Q. Where were you out at Captain Seaweed’s?
A. I was out on the parking lot.
Q. What did you see while you were out there?
Mr. Anders: Objection.
Court: Would you two approach the bench a minute, please?
(Bench Conference)
Court: The questions you’re asking are leading. They suggest an answer. That’s what a leading question is. The first thing you say is what was the defendant doing. We don’t know whether he was doing anything.
Mr. Dales: Okay.
Court: See? You suggest an answer to him, and you can’t do that.
Mr. Dales: I can ask him what he saw, can’t I?
Court: Well . . .
Mr. Anders: Ask him the day of this occurrence . . .
Court: ... in connection with this case. He might have said he saw a flying star.”
“Q. When you got in the car and were talking to them, what did you observe the parties inside the car doing?
Mr. Anders: Objection.
Court: Sustained.
Q. Did you talk to Jim?
Mr. Anders: Objection.
Court: Well, I’ll let him answer that.
A. I didn’t talk to him. I was talking to Mark and the rest of them.
Q. What did you observe the three of them doing when you got in the car?
Mr. Anders: Objection.
Court: Sustained.
Mr. Dales: I beg the Court’s indulgence for a minute.
Q. What, if anything unusual, did you observe when you got in the car?
A. Meg was crying. I asked Mark what’s she crying about. And he said something about Rusty, or something.
Q. What did she say?
Mr. Anders: Go ahead.
A. I really couldn’t really understand. She was, like, crying. I couldn’t understand what she was talking about, what she was saying.
Q. Okay. What condition was Meg in?
Mr. Anders: Objection.
Q. Did you observe Meg’s demeanor when you got in the car?
A. Demeanor?
Q. Her . . .
Mr. Anders: He’s already testified she was crying, Your Honor.
Q. Did you observe anything else?
A. She seemed like she was drunk.
Mr. Anders: Objection, and ask that it be stricken.
Court: Strike it out.
Q. What makes you . . . what did Meg do that made you draw that conclusion?
Mr. Anders: Objection.
Court: Sustained.
Q. Did you observe . . . what did you observe in the car?
Mr. Anders: Objection.
Court: I’ll sustain the objection.
Q. What happened after you got in the car?
Mr. Anders: Objection.
A. We stayed therefor awhile . . .
Court: Well, wait a minute. I’ll sustain the objection.
Mr. Weidemeyer: Could we have the Court’s reason for sustaining the objection? We must take an exception. We’re trying to develop some facts and there’s objection to everything.
Court: Well, they’re leading questions.
Mr. Weidemeyer: What did he observe isn’t a leading question, if Your Honor please.
Court: (unintelligible) the question, but . . .”

“A leading question generally is a question which suggests to the witness the specific answer desired or a question admitting of being answered by a simple ‘yes’ or ‘no’.” Johnson v. State, 9 Md. App. 327, 332, 264 A. 2d 280 (1970). “Questions . . . which so suggest the specific tenor of the reply as desired by counsel that such a reply is likely to be given irrespective of an actual memory, are illegitimate.” 3 Wigmore, Evidence § 769, at 154 (Chadbourn rev. 1970). “[T]he permissibility of leading questions is primarily within the sound discretion of the trial judge, and his judgment in this respect will not be overturned on appeal unless there has been an abuse of his discretion as to prejudice the rights of the accused to a fair trial.” Hubbard v. State, 2 Md. App. 364, 368, 234 A. 2d 775 (1967). The reason for this is that it is not only the wording of the question which may make it leading but the emphasis and manner in which it is asked. The trial judge is in the better position to make a decision.

In the first situation the witness had just answered a question that his son appeared to be under the influence of alcohol. In the context of that question we cannot say that the trial judge abused his discretion by finding that the follow-up question concerning the other people in the car suggested “a specific tenor of reply desired by counsel.”

In the second instance we cannot find that all the questions to which objections were sustained by the trial judge were leading. On the other hand we cannot see how this prejudiced the appellant’s right to a fair trial. The most that the appellant hoped to achieve was that the statement that “[s]he seemed like she was drunk” would remain in the record. The prosecutrix testified on direct examination that she had consumed four beers and that if she drank over five beers she lost control over herself. The fact that she seemed drunk to George Rawlings does not mean that she could not have been raped. It was a matter for the finder of fact to determine the condition of the prosecutrix and what effect that had on the occurrences of the night in question. Regardless of how she appeared, the issue boiled down to whether the finder of fact believed her testimony that she was not so intoxicated that she did not resist the sexual advances of the appellant and submitted strictly from force.

The third area in which the appellant contends his questioning was erroneously restricted concerns the testimony of the prosecutrix’s next-door neighbor. Meg’s grandmother had testified that she is supposed to be home by midnight. The appellant attempted to extract testimony from the neighbor that she did not always get home at that time. The trial court ruled that this was irrelevant.

The evidentiary question decided by the trial judge was whether the proffered evidence tended to prove or disprove the crime charged. Baxter v. State, 223 Md. 495, 165 A. 2d 469 (1960). No precise and universal test of relevancy of evidence is furnished by law, the determination of which rests largely in the discretion of the trial court. Baumgartner v. State, 21 Md. App. 251, 259, 319 A. 2d 592 (1974). Whether Meg had surpassed her curfew on one or several prior occasions appears to have no bearing on the night in question. We see no abuse of discretion.

Sufficiency of the Evidence

Relying on Winegan v. State, 10 Md. App. 196, 268 A. 2d 585 (1970), in which a rape conviction was reversed where the victim was confronted by the accused on a public street and followed him home, five blocks and three flights of stairs away without any direct threats or physical abuse, the appellant asserts that there was insufficient evidence of force and the fear of the victim was so unreasonable under the circumstances that the case should not have gone to the jury. In that case we said:

“[Wjhere the victim’s story could not be corroborated by wounds, bruises or disordered clothing, the lack of consent could be shown by fear based upon reasonable apprehension. The rule requiring the apprehension be reasonable was first enunciated in Maryland in Hazel v. State, 221 Md. 464, 469, 157 A. 2d 922:
‘If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.’ ”

Id. at 200,201.

The appellant contends that if we keep in mind the presumption of innocence, the ease with which a woman can make the charge of rape, and the difficulty of disproving the charge, especially where intercourse occurred, then the testimony concerning the victim’s screaming, the scrapes on the victim’s elbow and back, her torn halter top, the cupping of her mouth and nose, and the testimony of Mrs. Behlke were not sufficient to corroborate the lack of consent. Even though the medical report stated that there was no evidence •of external trauma the victim produced both photographs and testimony oí the bruises. “[T]he test as to whether the evidence was sufficient in law to permit the trial judge properly to deny the appellant’s motion for judgment of acquittal and to submit the case to the jury is whether the admissible evidence adduced at the trial either showed directly, or circumstantially, or supported a rational inference of, the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the appellant’s guilt of the offense charged.” Andresen v. State, 24 Md. App. 128, 209, 331 A. 2d 78 (1975). The rule in Winegan, however, is inapplicable where as here the victim’s story could be corroborated by the scrapes and torn clothing.

In Burnette v. State, 15 Md. App. 371, 377, 290 A. 2d 816 (1972), we again approved the reasoning in Rice v. State, 9 Md. App. 552, 267 A. 2d 261 (1970), that sound public policy does not require a woman to resist to the extent that she runs a substantial risk of grievous bodily harm. It was found in that case that where the victim was alone with the appellant who in a lonely spot struck her in the face and pushed her face back in the seat by covering it with his hand it was inconsequential that she ceased to resist. In the instant case there was testimony that the victim tried to run, but was leaped upon and smothered when she fell. There is nothing to indicate that she would not have been injured more substantially if she had continued to resist his advances. There was sufficient evidence for the jury to find that the sexual act was not a product of her consent.

Jury Instructions

The record reveals that after an almost four-hour deliberation the jury sent a note to the trial judge. The trial judge then gave the following charge:

“Mr. Foreman and members of the jury, I’ve received your note stating that you have a hung jury and asking if there is anything that I could suggest that may help you. Well, all I can say is that in a large proportion of cases an absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence at the conclusion of your fellows, yet you should examine the question submitted with candor, and with proper regard in deference to the opinions of each other. It is your duty to decide the case, if you can conscientiously do so. You should listen to each other’s arguments with a disposition to be convinced if much the larger number of jurors are for conviction, the dissenting juror should consider whether his doubt is a reasonable one which makes no impression upon the minds of so many jurors equally honest, equally intelligent with himself. If, upon the other hand, the majority are for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of. a judgment which is not concurred in by the majority. Are there any other questions while you’re in the courtroom? I suggest that you go back and consider for a while longer. If you are hopelessly deadlocked, just let me know. Anything else? (no response) Alright, you may retire to the jury room. (Jury retires once again, and reaches a verdict)” (Emphasis added).

The jury returned approximately one hour and fifteen minutes later with the guilty verdict.

The appellant contends that this personalized version of the Allen Charge was clearly coercive. Although this charge met with no objection at the trial level we have held that an erroneous Allen-type instruction amounts to plain error under Md. Rule 756 g and should be examined. Pinder v. State, 31 Md. App. 126, 355 A. 2d 489 (1976); Fletcher v. State, 8 Md. App. 153, 258 A. 2d 781 (1969).

As pointed out in Leupen v. Lackey, 248 Md. 19, 25, 234 A. 2d 573 (1967), there are many facts and circumstances in each case which may make an Allen-type charge either inadvisable or require great care and restraint in presenting it to the jury. Since the trial judge is obviously in the best position to judge these circumstances, when to employ this charge and what words should be selected are matters best left to his sound discretion. Kelly v. State, 270 Md. 139, 310 A. 2d 538 (1973), affirming 16 Md. App. 533, 298 A. 2d 470 (1973).

In Kelly, supra at 144, the Court of Appeals stated:

“After the jury has been sequestered to deliberate, we think it advisable that a trial judge, who decides to give an Allen-type charge because of an apparent deadlock, should closely adhere to the wording of the ABA recommended instruction. If he does not, the language selected will be subjected to careful scrutiny in order for it to be determined whether the province of the jury has been invaded and the verdict unduly coerced. In addition, as ample time for discussion and consideration of the issues should be allowed before such a charge is given or repeated, the interval from the onset of deliberation, in view of the complexity of the case, will be considered in examining whether there was an abuse of discretion in giving the instruction at the time the trial judge selected.”

In the instant case there was no abuse of discretion in the timing of the instruction, since three hours was certainly ample time for discussion and consideration. We must now therefore examine the instructions to determine if there was undue coercion. We find Burnette v. State, 32 Md. App. 277, 360 A. 2d 23 (1976), cert. granted October 26, 1976, to be dispositive of the issue. The instructions in that case were virtually identical to those in the instant case. We held that a charge given after the jury has retired should no longer be given which does not conform to the ABA standards, but the failure to give such a charge will not always necessarily amount to reversible error. The variance in the case at bar and Burnette, supra, was neither as great or coercive as Pinder, supra. While the language concerning the considerations which a minority juror should adopt again meets with our express disapproval, the charge, when considered in its entirety was not such a flagrant deviation from the ABA approved Allen-type charge as to constitute reversible error. Burnette, supra at 282.

Judgment affirmed.

Appellant to pay the costs.

      . It should be noted the appellant in his brief consistently cites facts which are not in the record. We decide the case upon the record. Green v. State, 28 Md. App. 680, 329 A. 2d 731 (1974).

      . Appellant contends that the note cited the numerical results of the balloting, but we are precluded from considering anything not in the record. Green v. State, supra, n.1.

      . The name is taken from Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    ROMAN PEDZICH and ANTHONY ROBERT PEDZICH v. STATE OF MARYLAND
    [No. 156,
    September Term, 1976.]

      Decided November 9, 1976.

      The cause was argued before Menchine, Moore and Liss, JJ.

      Barry T. Cañaras, with whom was Melvin J. Kodenski on the brief, for appellants.

      Bernard A. Raum, Assistant Attorney General, with whom -were Francis B. Burch, Attorney General, William A. Smsher, State’s Attorney for Baltimore City, and James Salkin, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

The appellant, Roman Pedzich, was charged in the District Court of Maryland for Baltimore City with the larceny of eighteen men’s shirts valued at $10 each, and that he “did wear, carry or knowingly transport a loaded shot-gun in a vehicle traveling on a public road or highway or any road or parking lot generally used by the public of the city of Balto, state of Md. on 10 Nov. 75” (as in the original).

The appellant, Anthony Pedzich, was charged in substantially the same language with the deadly weapon violation only.

Both appellants prayed a jury trial and the cases were transferred to the Criminal Court of Baltimore.

By a plea bargain agreement, the State stipulated that the value of the goods was under $100, thus reducing the charge from grand larceny to petit larceny. The larceny and deadly weapon cases were submitted on statements of fact. There is no complaint as to the accuracy of the facts as stated to the Court.

The trial court entered a judgment of guilty of larceny under $100 against Roman Pedzich, and judgments of guilty of the deadly weapon charges against both Pedzichs. It is from these judgments that this appeal was taken. New counsel entered their appearance on the appeal and they have raised three issues to be determined.

Roman Pedzich initially urges that the evidence submitted to the trial court by the statement of facts was insufficient to support the verdict of guilty of larceny returned against him. The facts offered to the trial court in support of the larceny charge stated that two police officers were called in the early morning hours to the eastern area of the City where they were advised by eyewitnesses that two white men had parked a vehicle in the vicinity and had disappeared in the direction of the railroad tracks located in the neighborhood. Upon investigation the officers saw appellant and a companion near a van owned by Allegheny Freight Lines. As soon as appellant and the other man saw the police officers approaching, they ran — the police in pursuit. Immediately after being apprehended by one of the officers, Roman Pedzich said, “I know you, you got me.” The State in the statement of facts further advised the trial court that a representative of the freight line would testify that when he left the van at the end of the preceding day, the van and the boxes in it were secure. It was stipulated that the boxes contained men’s shirts; the value of the goods totalling $99. The State offered, without objection, three photographs of the van showing a number of shirt boxes, one of which had been partially torn open. It was stipulated that when the appellant and his companion were arrested, they did not have any stolen goods in their possession.

This Court in Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331, 335 (1970), said that the test as to the sufficiency of the evidence may be stated as follows:

“To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.”

Appellant also urges that the State’s ease was deficient in that it failed to prove the asportation of the goods allegedly stolen. This Court said in Wiggins v. State, 8 Md. App. 598, 603-04, 261 A. 2d 503, 506 (1970), that one of the elements in larceny is the asportation of the property stolen and that it is not necessary that the property be carried any particular distance or that the thief retain possession and control for any particular length of time. Quoting from Clark & Marshall, Law of Crimes, 6th Ed., § 12.05, p. 738, we said:

“The slightest asportation is sufficient. The trespasser must acquire complete control over the property, but the slightest entire removal of it from the place it occupies, and a temporary control of it, even for a moment is enough. It has been said that removal to the distance of ‘a hair’s breadth’ is sufficient.”

See Osborne v. State, 4 Md. App. 57, 241 A. 2d 171 (1968). The dominion and control exercised by the alleged thieves for the period of time required to open the box of shirts was sufficient to establish the asportation of the goods. Our examination of the record as well as the photographs admitted into evidence convinces us that the evidence was sufficient to support the trial court’s verdict and we shall affirm.

As a second ground for the reversal of his conviction of larceny, Roman Pedzich urges that he did not intelligently ,and understanding^ waive his rights of confrontation and cross-examination. No such contention was raised in the trial court, and we decline to consider this issue raised here for the first time. Maryland Rule 1085; McMorris v. State, 26 Md. App. 660, 338 A. 2d 912 (1975); Hartsock v. Strong, 21 Md. App. 110, 318 A. 2d 237 (1974).

Appellants contend that the judgments entered against them in the “deadly weapon” cases should be reversed because the charging documents were insufficient to charge an offense under the criminal laws of the State. Counsel for the State concedes that this is correct, and as our independent review of the record leads to this same conclusion, we shall reverse. The charge as set out earlier in this opinion seems to be an unacceptable hybrid created from an amalgam of the separate crimes defined by Maryland Code, Article 27, §§36 (a) and 36B (b). Article 27, § 36 (a) proscribes the carrying of a dangerous or deadly weapon either concealed or openly with intent to injure any person in an unlawful manner. Article 27, § 36B (b) is the handgun statute which prohibits the transportation, wearing or carrying of a handgun whether concealed or openly. In this case the charge did not specify whether the shotgun was carried openly with intent to injure, nor did it specify whether the shotgun was sawed off and could thereby fall within the handgun statute. The contention made by appellants in this Court was not raised before the trial court, and under Rule 1085 would not usually be available to them for the first time oh appeal. Rule 1085, however, expressly provides that “... a question as to the jurisdiction of the lower court may be raised and decided in . this Court whether or not raised and decided in the lower court.” In Baker v. State, 6 Md. App. 148, 151, 250 A. 2d 677, 680 (1969), this Court said:

“We do not think that a court exercising criminal jurisdiction has the power, in a jury trial, to allow a case to go to the jury, or in a court trial to make a finding of guilt, or in either case to impose sentence, under an indictment which charges no offense.”

The minimum requirement is that the indictment should allege every substantial element of the offense with reasonable particularity of time, place and circumstance so that the defendant may be fully informed of the offense charged and the Court able to determine the statute on which the charge is founded. State v. Fearing, 30 Md. App. 134, 351 A. 2d 896 (1976).

We are aware that the charging document in this case was prepared in the somewhat less formal atmosphere which exists in the District Court. There is still, however, a duty on the State’s attorney to see that the charge is properly placed and that the charging document meets the requirements of the law. A failure of the charging document to charge an offense, whether in the District Court or upon transfer to the Circuit Court, raises an issue of jurisdiction. Even a plea of guilty constitutionally accepted does not waive a jurisdictional defect. Wheeler v. State, 10 Md. App. 624, 272 A. 2d 96 (1971).

The appellants cannot again be tried under this charging document and our mandate may not direct a new trial. However, the appellants, not having been placed in jeopardy heretofore, may be tried under such new charges as may be placed against them.

Judgment as to Roman Pedzich (Case No. 47601231, larceny) affirmed; judgments as to Anthony Robert Pedzich and Roman Pedzich (Case Nos. 47601230 & 35, deadly weapon) reversed.

Costs to be divided between Roman Pedzich and Mayor and City Council of Baltimore.


author: Lowe, J.,

text:
    ROGER DAVID WHITE v. STATE OF MARYLAND
    [No. 174,
    September Term, 1976.]

      Decided November 9, 1976.

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

      Fred Warren Bennett, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and
      Laurence D. Beck, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

A jury in the Circuit Court for Montgomery County convicted appellant of larceny of a motor vehicle and possession of a manufactured article with a defaced serial number. The subject matter of both crimes was a Harley Davidson motorcycle (the Wickman motorcycle). During the trial, the State produced Jerry Wayne Defibaugh who testified, over objection, that he had accompanied appellant during the theft of two other Harley Davidson motorcycles, but that he did not recognize the one which was the subject of appellant’s case. Defibaugh was permitted to state that he and appellant had sold one motorcycle and had hidden the other one behind appellant’s mother-in-law’s shed, Defibaugh was unable to recall when the theft of the two motorcycles had occurred, but he thought it was sometime in early 1974, but later stated he meant 1975. Appellant twice moved for mistrial explaining his reasons:

“Your Honor, the State introduced this witness over objection of defense counsel. He has testified that he stolfe] two motorcycles with the Defendant. He said he has never seen the subject motorcycle before which is the subject of this case. There ;s no point in time as to when these motorcycles were stolen. I believe all the testimony is inadmissible and prejudices the jury and I move for a mistrial based on the witness’ testimony.”

The court denied both motions without explanation.

Prior to Defibaugh’s testimony before the jury, the State had summarized the witness’s testimony in a preliminary proffer, arguing that Defibaugh’s testimony was admissible under Chandler v. State, 23 Md. App. 645:

“... ‘Evidence of other crimes is admissible to prove the specific crime charged with when such evidence establishes motive, intent, or absent the common scheme or plans, the two or three are so related to each other, the proof of one tends to establish the identity of the person charged with the commission of the crime on trial.’ ”

The State argued that the testimony was admissible under “almost all” of the exceptions:

“I would suggest to the Court that if the Court considers those five exceptions, the evidence that the State is attempting to admit, not only as the contemporaneous theft, but of the crime that was committed after the fact, it tends to do almost all of those things in one fashion or another.”

Unless we assume the State’s reasoning to have been adopted by the court, we are at a loss as to why the evidence was admitted. The court’s reason for admitting the proffered testimony was no more exegetic than its subsequent rulings before the jury on appellant’s motions for mistrial.

“I have no problem with the first proffer which the State makes, namely the testimony of the eye accomplice. I am not even sure that he is an accomplice for purposes of this crime, but have no problem with that. I do not permit you — I assume that will be over the objection of the Defendant, is that true?
MR. HILLYARD: Yes, sir. I would like the record to so reflect that the defense objects to any testimony along this line from the State’s witness.”

Nor are we enlightened by the trial judge’s instructions during his discussion to the jury of Defibaugh’s testimony. However, it is apparent that he did not give the jurors a limiting instruction, telling them for what purpose they could consider the evidence. Rather, he appeared to have left the question of the admissibility of the testimony to the jurors by letting them decide if the testimony fit any of the exceptions described in Chandler:

“The last instruction that I wish to give you concerns the testimony which you heard about the prior unlawful activity of the defendant. You heard testimony from a witness whose name escapes me at the moment — I think it was Mr. Defibaugh — about certain unlawful activity in which he and the defendant were allegedly engaged involving the theft of a couple of other motorcycles of the same make as this one prior to the date of the alleged occurrence of this offense. Ordinarily, evidence of proof or evidence of prior unlawful conduct is not admissible as substantive proof of the offense for which the defendant is charged. In other words, just because someone stole something a year ago, it does not mean he stole what he is charged with stealing in this case. An exception is made, however, when the evidence of the other crimes tend to establish a motive or intent, a common scheme or plan or design or the identity of the defendant for the offense that is currently at issue.
In other words, for one of those purposes, it is permissible for you, the jury, to consider that prior evidence. It is not direct evidence and you should not be confused by direct evidence of guilt. It is simply another factor which you may consider along with all of the rest of the evidence.
I will read you the instructions from a case which occurred recently in which it was commented favorably by the Court of Special Appeals and I quote it. This is the ease of Chandler against State which appears in 28 Md. App. 645, ‘Since this kind of evidence, that is, the evidence of the prior unlawful conduct, can be misleading as to probative value, there must appear between the previous offense and that for which the defendant is charged in these proceedings some real connection other than the mere allegation that the offenses have sprung from the same disposition. This evidence cannot be considered to show the propensity of the accused to commit crimes similar to that for which he has been indicted. The reason for the general rule excluding such testimony is that such evidence would tend to divert the minds of the jurors from the real, issue and arouse their prejudices. Where intent is material, the conduct of the accused is relevant to show that intent. Hence, evidence of collateral offenses is admissible in the trial of the [main charge] to prove the intent. To be admissible as relevant, such offenses need not be exactly concurrent. If they are committed within such time, or show such relation to the main charge as to make the connection obvious, such offenses are admissible to show intent.’ ”

No exception was taken to this charge, although appellant asks us to recognize it as plain error under Md. Rule 756 g. That we decline to do so, should in no way be interpreted as condoning the trial judge’s instruction. We simply do not have to reach that question since we find that the trial judge committed error in admitting Defibaugh’s testimony over appellant’s timely objection.

The Court of Appeals has repeatedly stated that the introduction of evidence which shows other offenses by the accused should be subjected to “rigid scrutiny” by the courts because of the great potential for danger which characterizes it. See, e.g., Ross v. State, 276 Md. 664, 671; Berger v. State, 179 Md. 410, 414.

The facts of Ross parallel the facts here. Ross was charged with possession of heroin with intent to distribute. The testimony at issue was from a witness who stated that he and appellant used to work together selling narcotics. The Court held that:

“The disputed testimony here need hardly be subjected to rigid scrutiny to demonstrate its inadmissibility. Proof that the accused had previously sold narcotics perhaps as long as 15 years before the crime charged in the indictment hardly tends to establish a disposition or propensity to commit the offense alleged, let alone an intent to do so. The effect of the ruling by the trial judge was to present to the jury evidence of the appellant’s bad character before he had taken the stand to testify. Since, the testimony in question came within none of the recognized exceptions to the general rule excluding evidence of other criminal acts, it was irrelevant and therefore inadmissible.” Ross v. State, 276 Md. at 671-672.

Even though the relevant period of time here is considerably more confined than in Ross, we find that case dispositive. Defibaugh’s testimony does not withstand our “rigid scrutiny”.

The State contends that Defibaugh’s testimony * was admissible under four exceptions to the general rule that evidence of other crimes is inadmissible. But it is clear from the weakness of its arguments that it has been charged with defending an indefensible error.

Motive and Intent

Noting that the Wickman motorcycle had been subjected to certain changes and modifications after it was stolen, the State argues that the fact that all the motorcycles were of the same make shows appellant’s motive and intent in stealing the Wickman motorcycle. As to motive, the State reasons:

“ . .. that an individual would be in a far better position to interchange various components of the same make of motorcycle than to attempt to interchange components of different makes of motorcycles. This would establish a motive on the part of the Appellant, i.e., the Appellant presumably would take only Harley Davidson motorcycles — the two which he and Defibaugh took, as well as Wickman’s motorcycle — for the purpose of interchanging various parts, elements and components.”

The State ignores the fact that there was no evidence at all that either of the two motorcycles to which Defibaugh testified had been used to interchange parts. The record shows only that one was sold and the other stored. No inference can be drawn from any of the testimony that any parts of these two motorcycles were removed or interchanged.

The State’s argument that the evidence showed appellant’s intent is even less convincing.

“For the same basic reasons outlined above with regard to the ‘motive’ exception to the general inadmissibility of evidence of other crimes in a criminal proceeding, the Appellee would submit that the testimony of Defibaugh was also admissible to show ‘intent’ on the part of the Appellant. There had been evidence adduced through the testimony of Sylvia Lewellyn, the girlfriend of Wickman, that on February 13, 1975, she was at Wickman’s residence. She was outside cleaning her car when she observed ‘a blue van that went by and about an hour later it went by again more slowly this time’. She mentioned this to Wickman, and they recalled that this was the same type of van which had been used to transport Wickman’s motorcycle when work had to be done on his motorcycle. After describing the van, Miss Lewellyn stated that the ‘guy on the passenger side,’ whom she could not identify, turned away from her as she looked up, and the van drove away. Defibaugh testified that he and the Appellant stole the other two Harley Davidson motorcycles in early 1974. Therefore, the evidence of the larceny of these other two Harley Davidson motorcycles was admissible to show a specific intent on the part of the Appellant to steal Wickman’s Harley Davidson motorcycle in order to retain Wickman’s basic motorcycle, after interchanging parts in an effort to prevent the discovery of either stolen motorcycle.” (footnote omitted).

This argument justifies neither response nor comment.

Identity

The State comments, but does not argue, that Defibaugh’s testimony “may have” been admissible to show identity. This contention has no merit, for the testimony, unlike that in Mollar v. State, 25 Md. App. 291, does not tend to aid in identifying appellant as the person who committed the crime.

Common Scheme

The State’s final contention is that because the subject cycle was a Harley Davidson and the two Defibaugh bikes were also Harley Davidsons, such coincidence would establish

“ . .. ‘a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other ...’ ”,

citing Gordon v. State, 5 Md. App. 291, 306. We reject the slender reed offered in hope of salvaging a sinking syllogism. The State again argued that three of the same make of motorcycle were stolen to facilitate disguise of the stolen goods. But absent a showing that this disguise was attempted by an interchange of parts among these motorcycles, Defibaugh’s testimony hardly tends to establish that appellant had a “common scheme” which included theft of the Wickman bike. The mere fact of coincidence in the type of motorcycles allegedly stolen, without proof of similar and significant details, is necessarily insufficient to establish a common scheme. If it were otherwise the effect would be precisely that which is proscribed by Boss: the use of other offenses to establish a defendant’s propensity to-commit the crime charged.

Conclusion

Strain as it might, the State can produce no reasonable purpose to be served by admitting Defibaugh’s testimony except to prove that appellant had a propensity to commit crimes similar to that for which he had been indicted. That is not a legitimate purpose for admitting evidence of other crimes under an exception to the frequently enunciated general rule that “in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible.” Ross, supra, 276 Md. at 669; see Berger v. State, 179 Md. at 414.

Judgment reversed.

Case remanded for new trial. Costs to be paid by Montgomery County.

      . The actual language of Chandler, 23 Md. App. at 649-650, is:
      “ ‘... evidence of other crimes is admissible to prove the specific crime charged when such evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial____’ ”


author: Gilbert, C. J.,

text:
    WILLIAM DEAN CHRISTENSEN v. STATE OF MARYLAND
    [No. 175,
    September Term, 1976.]

      Decided November 9, 1976.

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

      Beverly S. Pearson, Assigned Public Defender, for appellant.

      Alexander L. Cummings, 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.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal might well be styled, “Chapter V, in the continuing saga of William Dean Christensen.” We are now asked by Christensen to declare that his plea of double jeopardy should have been upheld and the indictment dismissed, thus penning finis to the saga.

The matter reaches us this time by way of a circuitous route which we now recount. Christensen was indicted by the Grand Jury for Montgomery County on charges of kidnapping, assault with intent to rape, attempted rape, assault and battery, and assault. At his trial before a jury in the Circuit Court, Christensen was found guilty of attempted rape only. An appeal to this Court by Christensen, asserting the misuse at trial of the “missing witness rule,” was unsuccessful. Christensen v. State, 21 Md. App. 428, 320 A. 2d 276 (1974). The Court of Appeals, however,. granted certiorari, and subsequently, in Christensen v. State, 274 Md. 133, 333 A. 2d 45 (1975), agreed with Christensen in the “missing witness rule,” reversed our judgment, remanding the matter to us with instruction that we, in turn, reverse the trial court and remand for a new trial. After our compliance with the mandate of the Court of Appeals, Christensen moved to dismiss the indictment. The basis of Christensen’s motion was that attempted rape involves force and that assault with intent to rape is an attempted rape. Christensen reasoned that having been acquitted of assault with intent to rape he could not be again tried for attempted rape arising from the same incident.

The second count of the indictment averred that Christensen:

“. . . unlawfully did make an assault . .. upon . . . [the prosecutrix] with intent then and there unlawfully to ravish and carnally know her, forcibly and against her will. .. .”

The third count alleged that the accused:

“. . . unlawfully did attempt to unlawfully and violently make an assault . . . upon . . . [the prosecutrix], and, forcibly and against her will, unlawfully did attempt to ravish and carnally know her. . ..”

The trial judge refused to dismiss the indictment, and as he is permitted to do under Neal v. State, 272 Md. 323, 322 A. 2d 887, rev’g 20 Md. App. 20, 314 A. 2d 710 (1974), Christensen immediately appealed to this Court. Here, Christensen starts with the premise that:

“The Maryland Court of Appeals has on several occasions declared that assault with intent to rape is the same as attempt to rape. Waters v. State, 2 Md. App. 216, 226, 234 A. 2d 147, 153 (1967): “Aggravated assaults are nothing more then [sic] attempts to commit murder, rape, or robbery, a view apparently followed in this State.” Hazel v. State, 221 Md. 464, 469, 157 A. 2d 952 (1960): “Rape and attempted rape involve an act of force without consent and against the will of the victim.” (Emphasis supplied.)

Our perusal of Waters and Hazel does not lead us to conclude, as does appellant, that assault with intent to rape and attempted rape are one and the same. In Waters, we did not flatly state, as the appellant’s quotation from that case would lead one to believe, that “aggravated assaults are nothing more then [sic] attempts to commit murder, rape, or robbery, a view apparently followed in this State.” What we actually said in dictum was, “[i]t has been said that aggravated assaults are nothing more than attempts to commit murder, rape, or robbery (Clark and Marshall, Crimes, Sixth Ed. § 4.07, p. 218), a view apparently followed in this State. See Farrow v. State, 233 Md. 526, 533 [197 A. 2d 434, 438 (1964)].” 2 Md. App. at 226, 234 A. 2d at 153. Farrow does not appear to underpin Waters. All that the Court said in Farrow with respect to Farrow’s challenge of his conviction of assault with intent to commit rape and buggery was:

“This contention is based upon the direct testimony by the prosecuting witness that these substantive crimes were, in fact, committed by the defendant. However, this contention completely ignores the fact that there was substantial testimony offered by the doctor to the effect that there was no emission and perhaps no penetration. The jury might well have concluded that the state had not met the burden of proof required to establish the substantive crimes charged. There was evidence to establish the attempts.” 233 Md. at 533, 197 A. 2d at 438.

Christensen’s quotation from Hazel, supra, is more fiction than fact. The italicized portion of appellant’s Hazel quote simply is not in the text of that case, although the unitalicized part does appear at 221 Md. 469, 157 A. 2d 924.

Contrary to the appellant’s point of view, the Maryland law is clear that, “[t]here is a difference in the essential elements of the two crimes [assault with intent to rape and attempted rape]...Avery v. State, 15 Md. App. 520, 547, 292 A. 2d 728, 746 (1972).

In Middleton v. State, 6 Md. App. 380, 385-86, 251 A. 2d 224, 227 (1969), Chief Judge Murphy, for this Court, wrote:

“The essential ingredients of the crime of assault with intent to rape are (a) an assault, (b) an intention to have carnal knowledge of a female, and (c) a purpose to carry into effect this intention with force and against the consent of the female.”

Earlier, the Court of Appeals, in Wiley v. State, 237 Md. 560, 563-64, 207 A. 2d 478, 480 (1965), speaking through Judge Hammond (later Chief Judge) said:

“An attempt to commit a crime consists of an intent to commit it, the performance of some act towards its commission, and failure to consummate its commission.”

1 Wharton’s Criminal Law and Procedure (R.A. Anderson ed. 1957), provides:

§ 322. Attempt to rape.
“An attempt to rape is an offense distinct from rape or an assault with intent to rape. The intent to rape must exist at the time that the defendant commits the overt act. To establish an attempt to commit rape, there must be an overt act.
As in the case of all attempts, the defendant must fail to perform the criminal act intended.
§ 323. Assault with intent to rape.
To constitute the offense of assault with intent to rape the defendant must be guilty of (1) assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry this intent into effect by means of force and against the will of the female. An assault with intent to rape must be distinguished from an attempt to rape. The latter is a common-law offense while the former is a statutory offense.” (Footnotes omitted.)

We think it clear from an examination of the elements of assault with intent to rape and attempted rape that, while the purpose to engage in illicit coitus is attendant in each offense, the crimes are different. If an attempt to commit a rape proceeds to a degree whereby it is tantamount to an assault upon the victim, the offense becomes the felony of assault with intent to rape, but if the attempt to rape falls short of an assault, the offense remains a common law misdemeanor. Burton v. State, 8 Ala. App. 295, 62 So. 394 (1913). See also Taff v. State, 69 Tex. Crim. 528, 155 S. W. 214 (1913).

In Maryland, assault with intent to rape and attempted rape are retained as separate and distinct crimes. The authorities, generally, are in accord with our view. 22 R.C.L. 1235 states:

“An attempt to rape is an offense distinct from rape or an assault with intent to rape, and comprehends elements different from those which combine to constitute either of those offenses; an attempt to commit rape may be established by • proof of threats, but an assault with intent to commit rape cannot.”

We believe that the General Assembly originally enacted and has kept viable Md. Ann. Code art. 27, § 12 insofar as assault with intent to ravish is concerned, in order to punish more severely than mere assault, attacks upon victims where an intent to rape is manifest and where the offense does not fall within the ambit of the common law misdemeanor of attempted rape. Inasmuch as the crimes of assault with intent to rape and attempted rape are separate and distinct offenses, an acquittal of one does not ordinarily give rise to a successful plea of double jeopardy to the other. Cousins v. State, 277 Md. 383, 354 A. 2d 825 (1976); Thomas v. State, 277 Md. 257, 353 A. 2d 240 (1976).

Having pointed up the distinction between assault with intent to rape and attempted rape, we turn our attention to the overriding issue now before us.

The indictment handed up by the Grand Jury for Montgomery County read in pertinent part:

“SECOND COUNT: Assault with Intent to Rape The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations, present that William Dean Christensen, late of said County, on the fifth day of July, in the year of our Lord nineteen hundred seventy-two, at the County aforesaid, unlawfully did make an assault in and upon one Mary K. Kramer, with intent then and there unlawfully to ravish and carnally know her, forcibly and against her will, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.
THIRD COUNT: Attempted Rape
The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations, present that William Dean Christensen, late of said County, on the fifth day of July, in the year of our Lord nineteen hundred seventy-two, at the County aforesaid, unlawfully did attempt to unlawfully and violently make an assault in and upon one Mary K. Kramer, and, forcibly and against her will, unlawfully did attempt to ravish and carnally know her, contrary to the form of the Act of' Assembly, in such case made and provided, and against, the peace, government and dignity of the State.”

At the trial on the merits, the jury was instructed as follows:

.. Mr. Foreman, you first consider the first Count and either find this man guilty or not guilty of the first Count, which is kidnapping. Then you go to the second Count, which is assault with intent to rape, and find him guilty or not guilty on that Count.
If you find him guilty on that Count, then your deliberations are at an end.You need not consider the other three Counts.
If you find him not guilty on the second Count, you go to the third Count and find him either guilty or not guilty.
If you find him not guilty on the third Count, then you go to the fourth and fifth Counts, and either find him guilty or not guilty.”

Upon the jury’s return to the courtroom, they were asked by the clerk if they had reached a verdict, and they responded affirmatively. The record then discloses:

“Ladies and gentlemen of the jury: Look upon the prisoner at the bar. What say you, is he guilty of the matters whereof he stands indicted or not guilty? First count?
THE FOREMAN: First charge, kidnapping, not guilty.
THE CLERK: Second count?
THE FOREMAN: Assault with intent to rape, not guilty.
THE CLERK: Third count?
THE FOREMAN: Third count, attempted rape, guilty, mercy recommended.”

Inasmuch as it was only the third count upon which Christensen was found guilty in the case sub judice we focus our attention upon that particular charge. It avers that the appellant “did attempt to unlawfully and violently make an assault in and upon ... [the prosecutrix], and, forcibly and against her will, unlawfully did attempt to ravish and carnally know her. .. .” There is no such crime as an attempt to commit an assault. 1 Wharton’s Criminal Law & Procedure § 72 (R. A. Anderson Ed. 1957).* * Indeed, assault is an attempt, Ott v. State, 11 Md. App. 259, 265, 273 A. 2d 630, 633 (1971), and a battery, the execution of the assault. Judge Powers, writing for this Court in Woods v. State, 14 Md. App. 627, 288 A. 2d 215 (1972), cert. denied, 266 Md. 745 (1972), carefully spelled out the difference between assault and assault and battery. “The common law crime of assault was described by Blackstone as ‘an attempt or offer to beat another, without touching him. . . .’ The same author wrote that the crime of battery ‘. . . is the unlawful beating of another.’ ” 14 Md. App. at 629, 288 A. 2d at 216. Patently, then, the third count in part asseverated a non-existing crime, i.e., an attempt to commit an assault or, reduced to its actual meaning, an attempt to attempt. While it may be argued that we could strike from the indictment the “unlawfully did attempt to unlawfully and violently make an assault” language as mere verbiage, we do not see it that way. In our view, the jury may well have relied upon the “attempted assault” portion of the count to bottom their verdict; and because we are unable to say that they did not do so, we are unable to conclude that the questionable language is surplusage.

We think the appellant’s motion to dismiss the indictment should have been granted.

Order denying motion to dismiss reversed.

Costs to be paid by Montgomery County.

      . The first four chapters are: I, the trial of Christensen in the Circuit Court for Montgomery County; II, Christensen’s first appeal to this Court. See Christensen v. State, 21 Md. App. 428, 320 A. 2d 276 (1974); III, Certiorari, and reversal of the Court of Special Appeals, 274 Md. 133, 333 A. 2d 45 (1975); IV, Plea of Double Jeopardy,

      2. The correct Atlantic Second citation is 157 A. 2d 988.

      . Judge Moore, for this Court in Lightfoot v. State, 25 Md. App. 148, 161, 334 A. 2d 152, 160 (1975) stated that “... the element of failure remains an essential part of criminal attempt; but it is not an essential element of attempt for all purposes.” On certiorari, the Court of Appeals in affirming said, ‘The better view, we believe, is the one adopted by the Court of Special Appeals in the instant case, by the majority of other jurisdictions, and by Professor Perkins, that failure to consummate the crime is not an indispensable element of criminal attempt.” 278 Md. 231, 237-38, 360 A. 2d 426, 430 (1976). The Court expressly disapproved of the language in Franczkowski v. State, 239 Md. 126, 210 A. 2d 504 (1965) and Wiley v. State, supra, that held to the contrary.

      . But see n. 3 supra wherein it is said that the failure to perform the criminal act is not an essential element of criminal attempt.

      . See e.g., State v. Gager, 45 Haw. 478, 370 P. 2d 739 (1962); State v. Jenkins, 411 S.W.2d 441 (Mo. 1967); State v. Hetzel, 159 Ohio St. 350, 112 N.E.2d 369 (1953); State v. Smith, 90 Utah 482, 62 P. 2d 1110 (1936); State v. Hyams, 64 Utah 285, 230 P. 349 (1924).

      . Christensen pled guilty in another case to rape and perverted practice. He was sentenced to sixteen years in that case. The sentence was made to run concurrently to the sentence imposed in the instant case. No appeal was noted. Subsequently, the sentence was reduced to twelve years. See Criminal No. 13017 Circuit Court for Montgomery County.

      . See also Wilson v. State, 53 Ga. 205 (1874); Brown v. State, 7 Tex. App. 569 (1880).


author: Menchine, J.,

text:
    PRINCE GEORGE’S COUNTY, MARYLAND v. BAHRAM BAHRAMI
    [No. 83,
    September Term, 1976.]

      Decided November 10, 1976.

      The cause was argued before Gilbert, C. J., and Menchine and Liss, JJ.

      David S. Eliden, Associate County Attorney, with whom were James C. Chapin, County Attorney, Ellis J. Koch, Deputy County Attorney, on the brief, for appellant.

      Jess Joseph Smith, Jr., for appellee.
   Menchine, J.,

delivered the opinion of the Court.

On July 25, 1969, Bahram Bahrami (Bahrami or appellee) applied to the District Council for the Maryland-Washington Regional District in Prince George’s County, Maryland (District Council) for the rezoning of 0.97 acres of land on the northwest side of St. Barnabas Road. On April 30,1975, the District Council, acting after a granted motion for reconsideration of a previously granted conditional reclassification, denied the application for rezoning. Events occurring before the District Council in the intervening years were the causes of the timely and successful appeal by Bahrami to the Circuit Court for Prince George’s County. The trial court’s reversal had the effect of restoring a prior order of the District Council that had granted conditional rezoning. Prince George’s County, Maryland ("County) now has appealed to this Court.

County and Bahrami both question, for widely differing reasons, the issues that are available to the litigants in the appeal from the District Council’s order of April 30,1975.

County contends that “the appellee should have taken action to terminate the reconsideration process in 1971. He cannot now come before the court and attack the reconsideration. An appeal [to the circuit court] could only be taken from the subsequent decision of the District Council denying the requested rezoning, and not from the Council’s original action granting the petition for reconsideration.”

Alternatively, the County contends that the trial court’s restoration of the prior order of the District Council that had granted the requested rezoning with conditions, was erroneous. County argues that the trial court’s action resulted from a misinterpretation of the zoning ordinance’s time limitation upon the District Council’s exercise of the right to reconsider. Otherwise stated, County also is contending: (1) that the motion for reconsideration, filed on March 4, 1971, was timely; (2) that the District Council’s action on April 8,1971, in voting to reconsider its prior grant of the zoning reclassification to the subject property was a lawful and timely exercise of the authority conferred by the zoning ordinance; and (3) that the trial court’s restoration of the District Council’s previously granted conditional reclassification was erroneous.

Bahrami contends that the petition filed on March 4,1971, seeking reconsideration by the District Council of its prior order granting conditional reclassification, was without legal effect: (1) because of the alleged failure to serve the same upon two individuals claimed to have been parties to the original hearing; (2) because it lacked a required affidavit; and (3) because it was not acted upon within the time prescribed by law.

We reject, as did the trial court, County’s first contention that Bahrami could not in 1975 appeal from the 1971 reconsideration order of the District Council. In Kay Constr. Co. v. County Council, 227 Md. 479, 177 A. 2d 694 (1962), it was said at 489-90 [700]:

“Moreover, this Court has construed statutory provisions for appeal from decisions of administrative agencies as applicable only to orders that are final in nature, and not to preliminary procedural or interlocutory orders. Celanese Corp. v. Bartlett, 200 Md. 397, 90 A. 2d 208 (1952); Bogley v. Barber, 194 Md. 632, 72 A. 2d 17 (1950). The resolution of the County Council granting reconsideration was not an order final in nature from which an appeal could be taken. Appellant was thus entitled, upon appeal from the subsequent unfavorable decision of the Council after the rehearing, to a review of the legality of the recons ideration. ”

We reject the first two contentions of Bahrami because: as to (1) the individuals allegedly unserved with a copy of the petition for reconsideration are not shown by the record to have been parties to the cause in the original hearing before the District Council, and as to (2) the petition for reconsideration recites compliance with the provisions of the ordinance and bears the signature and seal of a notary public, plainly implying that the document was under oath as required thereby.

In our view, the basic question on appeal is:

Was the motion for reconsideration of the grant of reclassification with conditions acted upon within the time prescribed by ordinance?

If the answer to that question is “No,” then the reconsideration action of the District Council was a nullity and the decision of the trial court restoring the prior order granting reclassification with conditions must be affirmed. If the answer to that question is “Yes,” then the action taken by the District Council to reconsider was validly made and the decision of the trial court to the contrary must be reversed. In the latter case the cause must be remanded for determination whether the final action by the District Council in denying reclassification was reasonably debatable.

What we conceive to be the pertinent parts of the Prince George’s Zoning Ordinance, bearing upon or controlling our decision in the subject case, are these:

“30.4 District council action on proposed amendment.
No action shall be required by the district council on any proposed zoning map amendment at the time of public hearing. The district council shall announce its decision granting, denying, modifying, or deferring the proposed zoning map amendment within thirty (30) days of the date of public hearing. Deferred applications, upon which no decision is rendered within ninety (90) days of the date of deferral, shall be considered denied.
30.41 REVISORY POWER OF DISTRICT COUNCIL.
(a) For a period of thirty (30) days after the date of mailing the notice of the action or final decision of the district council on any application for a zoning map amendment, or thereafter pursuant to a petition for reconsideration filed within such thirty (30) day period, the district council shall have revisory power and control over such action or final decision. After the expiration of such period the action or decision shall stand and be the final determination as to all matters considered under the application and no revisions thereof may be made except to correct mistakes or irregularities not amounting to a change of use permitted in the zoning expressed in the decision.
(b) Reconsideration. The district council may, pursuant to a petition for reconsideration or upon its own motion, filed or acted upon within the time set forth in subparagraph (a) of this subsection, reconsider the application on such grounds as may be stated in the petition or motion. The petition, in addition to setting forth grounds for reconsideration, shall have contained therein an affidavit that the same is not filed for the purpose of extending the time of appeal of the action or decision, that there is good and sufficient reason to support the petition and that a copy of it has been served by regular mail, postage prepaid, upon each party who appeared at the public hearing or his spokesman or counsel. An opportunity will be given to the parties named in the record of the public hearing to be heard or to file a response if any member of the district council requests it before the petition or motion is acted on. The district council may act upon the petition for reconsideration with or without a hearing and shall act upon such petition or its own motion within sixty (60) days of the original decision or the same shall be deemed to be affirmed.
80.5 Conditional zoning.
In approving any zoning map amendment, the district council may give consideration to and adopt such reasonable requirements, safeguards and conditions (hereinafter referred to as ‘conditions’), as may in its opinion be necessary to protect surrounding properties from adverse effects which might accrue from such zoning map.
80.51 The applicant may in his application consent to conditions believed to be desirable for the consideration of the planning commission and the district council. Conditions consented to by the applicant in the application, or in the evidence adduced before the district council shall be binding if imposed by the district council. Conditions adopted by the district council shall become a permanent adjunct to the zoning map amendment and shall be binding so long as the zoning category granted by the council shall remain in effect.
30.52 When a zoning amendment is approved subject to adopted conditions, the applicant shall have ninety (90) days from the date of approval to accept or reject the land use classification as conditionally approved. The district council’s action shall be final upon entry of an order incorporating the acceptance or rejection of the land use classification as conditionally approved. The applicant shall advise the council in writing within such period of the land use classification as conditionally approved. Failure to advise in writing within such period of such acceptance or rejection shall be deemed a rejection thereof. Rejection shall have the effect of voiding the zoning amendment and reverting the property to its prior zoning classification, and such reversion shall be evidenced by the passage of a board order by the district council.”

Understanding of the disparate contentions of the litigants requires a knowledge of the dates on which the District Council acted and the nature of the action taken thereon from the first to the final action taken by the District Council:

Action Date
Public Hearing September 9,1970
Action Deferred October 7,1970
DATE
October 23,1970 Vote to Approve C-0 with conditions
December 2,1970 Notice of October 23rd action sent
December 28,1970 Acceptance of Conditions
February 2,1971 Vote to Approve after acceptance
February 10,1971 Notice of 2/2/71 decision sent
March 4,1971 Petition for Reconsideration received
April 8,1971 Vote to Reconsider
April 30,1975 Denial of Reclassification after Reconsideration
Appeal to Circuit Court for Prince
May 28,1975 George’s County

The litigants concede that Bahrami’s appeal from the final order of the District Council was taken within thirty (30) days of its passage and permitted consideration whether the order appealed from was lawfully within its power at the time of passage.

The trial court held: (a) that the District Council vote to reconsider on April 8, 1971 was taken beyond the sixty day period provided by § 30.41 (b) of the ordinance and thus was beyond the lawful reach of District Council action, and (b) that the order passed by the District Council on February 2, 1971, granting conditional zoning reclassification was the final order of the District Council that fixes the zoning applicable to the subject property.

County’s position on what we conceive to be the basic issue on this appeal is that February 10, 1971 is the beginning date for calculation of the sixty day period within which the District Council is authorized to reconsider a prior reclassification and that the vote to reconsider on April 8, 1971, was timely taken.

Bahrami takes two alternative positions:

1. “[T]he ‘original decision’ of the District Council was on the October 23, 1970, date when the District Council originally or first decided to conditionally grant the requested rezoning, and is the date from which the sixty (60) days [of § 30.41 (b)] is measured, and that the action by the District Council in granting the Petition for Reconsideration on April 8, 1971 was beyond the sixty (60) day requirement.”
2. “[E]ven if the date of the District Council decision on February 2, 1971, in granting the approval of the rezoning after the conditions had been accepted is considered as the ‘original decision, the District Council still acted five (5) days beyond the sixty (60) day requirement when it acted on the Petition for Reconsideration on April 8,1971.”

In Crozier v. Co. Comm. Pr. George’s Co., 202 Md. 501, 97 A. 2d 296 (1953), it was said at 506 [298]:

“The requirements of the [zoning] ordinance are binding on the Commissioners sitting as a District Council and they may exercise their zoning powers only by following the procedure specified; this is implicit, if not explicit, in Sections 985 and 988 of the Prince George’s County Code and Sections 4 and 5 of Article 66B of the Code (1951 Ed.). The cases spell out the necessity of substantially complying with legislative procedural and substantive prerequisites as to notice and hearings if the action of zoning authorities is to be valid.”

It is incumbent upon us accordingly, to examine and declare the meaning and effect of the subject zoning ordinance.

The rules of law governing our action in such a determination have been clearly stated and firmly fixed, as is demonstrated by reference to three decisions of the Court of Appeals of Maryland.

In Md.-National Capital Park and Planning Comm., et al. v. Mayor and Council of Rockville, 272 Md. 550, 325 A. 2d 748 (1974), it was said at 555-56 [752]:

“The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent, Radio Com., Inc. v. Public Serv. Comm’n, 271 Md. 82, 93, 314 A. 2d 118 (1974); Scoville Serv., Inc. v. Comptroller, 269 Md. 390, 393, 306 A. 2d 534 (1973); Silberman v. Jacobs, 259 Md. 1, 267 A. 2d 209 (1970); Atlantic, Gulf v. Dep’t of Assess. & T., 252 Md. 173, 249 A. 2d 180 (1969); and in ascertaining that intent, the Court considers the language of an enactment in its natural and ordinary signification, City of Gaithersburg v. Mont. Co., 271 Md. 505, 511, 318 A. 2d 509; Grosvenor v. Supervisor of Assess., 271 Md. 232, 315 A. 2d 758 (1974); Radio Com., Inc. v. Public Serv. Comm’n, supra. If there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the legislature, Scoville Serv., Inc. v. Comptroller, supra; Atlantic, Gulf v. Dep’t of Assess. & T., supra. ”

In Amalgamated Cas. Ins. Co. v. Helms, 239 Md. 529, 212 A. 2d 311 (1965), it was said at 585-86 [315-16]:

“Of course, the cardinal rule of statutory construction is to seek and carry out the true intention of the Legislature. Casey Devel. Corp. v. Montgomery County, 212 Md. 138. And in so doing, it sometimes becomes necessary, under unusual circumstances, to look to the spirit and purpose of an enactment. Cearfoss v. State, 42 Md. 408; Bickel v. Nice, 173 Md. 1; Smith v. Higinbothom, 187 Md. 115. But Chief Judge Marbury very clearly pointed out in Clark v. Tawes, 187 Md. 195, that the rule that real intent must prevail over literal intent is adopted only when the literal words of a statute say something that the Legislature could not possibly have meant. He said that this Court has repeatedly stated that as a general rule a court may not surmise a legislative intention contrary to the plain language of a statute, nor insert or omit words to make the statute express an intention not evidenced in its original form. See also Pressman v. State Tax Comm., 204 Md. 78 and cases cited therein; and Fowel v. State, 206 Md. 101. And, if a statute be plain and free from ambiguity, its application may not be enlarged or extended by construction. Grimm v. State, 212 Md. 243.
“In other words, the courts, in the absence of ambiguity, should, as a general rule, confine themselves to a construction of a statute as written, and not attempt, under the guise of construction to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature.”

In Prince George’s Co. v. White, 275 Md. 314, 340 A. 2d 236 (1975), it was said at 317-18 [239]:

“No rule of statutory construction is more fundamental than that, in ascertaining the intention of the Legislature, we are to read all parts of a statute together to find the intention as to any one part; and that all parts are to be reconciled and harmonized if possible.”

It becomes quickly apparent that the sixty (60) day limitation upon the time within which a motion for reconsideration must be acted upon by the District Council cannot be held to begin on October 23, 1970, the date upon which the District Council voted initial and tentative approval of C-0 zoning with conditions.

Reconsideration by the District Council is forbidden, either upon petition by a party or upon its own motion, unless “filed or acted upon within the time set forth in subparagraph (a) [of § 30.41].” Action then is required thereon by the District Council “within sixty (60) days of the original decision.” § 30.41 (b), supra. Subparagraph (a) of § 30.41 in turn requires that a petition for reconsideration must be filed within “thirty (30) days after the date of mailing the notice of the action or final decision of the district council on any application for a zoning map amendment.”

Unless the thirty day limitation imposed upon the parties for the filing of petitions to reconsider and the sixty day limitation upon the power of the District Council to reconsider commence on the same date certain, an absurd result surfaces in conditional zoning cases. If the date of tentative initial approval of conditional reclassification (in this case October 23, 1970) were held to be the triggering date for the commencement of limitations upon the power of the District Council to reconsider its prior action, the applicant could defeat such reconsideration by the expedient of delaying his acceptance of the conditions imposed upon the reclassification to a date subsequent to the sixtieth day after passage of the tentative order. This is so because an applicant has ninety (90) days within which to accept or reject conditional zoning. § 30.52, supra.

We think that all zoning reclassifications, including grants subject to conditions, were intended to be subject to the reconsideration provisions of the ordinance.

Moreover, under the ordinance, the tentative grant of conditional rezoning to an applicant automatically would abort and the property would revert to its prior zoning classification if the applicant rejected or failed timely to advise the District Council of acceptance (§ 30.52). In short, the decision of October 23, 1971, was totally lacking in finality. We find no legislative intention to have the reconsideration provisions of the ordinance triggered by the passage of such a tentative order.

We find the language used in Greenbelt Consumer v. Acme Mkts., 272 Md. 222, 226-27, 322 A. 2d 521, 524 (1974), particularly pertinent to the subject zoning ordinance:

“The principles which guide us in construing legislative enactments have been consistently applied by this Court for many years. Of these, the cardinal rule requires that the legislative intent be discovered and carried out. This purpose must be discerned from the words the Legislature chose to employ unless there exists an ambiguity or obscurity, in which case we need to look elsewhere. M.T.A. v. Balto. Co. Revenue Auth., 267 Md. 687, 695, 298 A. 2d 413 (1973). This is so, in the absence of a constitutional defect, even if we believe the policy'of the statute to be unwise, harsh or unjust. Flanagan v. Flanagan, 270 Md. 335, 337-38, 311 A. 2d 407 (1973). Thus, in construing statutory language, we consider the words utilized in their natural and ordinary significance. However, if the phraseology employed has a doubtful meaning, this Court will examine the legislative intent so as to determine ‘the objectives and purposes of the enactment and the consequences resulting from one meaning rather than another . . . .’ Md. Medical Service v. Carver, 238 Md. 466, 478, 209 A. 2d 582 (1965). Furthermore, if necessary in doing so, we will examine all parts of all pertinent legislative enactments which shed light on what is the true legislative purpose. M.T.A. v. Balto. Co. Revenue Auth., supra; Hunt v. Montgomery County, 248 Md. 403, 414-15, 237 A. 2d 35 (1968); Amalgamated Ins. v. Helms, 239 Md. 529, 535-36, 212 A. 2d 311 (1965).”

We see in the subject ordinance a plain legislative purpose to grant to the parties a right to seek reconsideration of final action by the District Council but to impose stringent time limitations upon the initiation of such a right. We see as well an equally stringent time limitation upon the power of the District Council to reconsider a prior final action. Such a legislative purpose is achieved only if the parties’ right and the District Council’s duty is limited to final orders granting or denying requested reclassification with the same triggering date for the commencement of limitations upon the exercise of that right and that duty.

We find nothing in the ordinance indicating a legislative purpose to exclude conditional zoning reclassifications from the reconsideration process or to indicate that the process was intended to be triggered by orders that are manifestly interlocutory in nature.

In sum, we hold that the initial, tentative grant of conditional zoning is not such an order as will trigger commencement of limitations.

We turn, accordingly, to the ultimate question: Was commencement of the period of limitations upon the power and authority of the District Council to act upon the petition for reconsideration triggered by the District Council’s action: (a) on February 2, 1971 — when it voted to approve conditional rezoning after applicant’s acceptance of the conditions; or (b) on February 10,1971 — when it gave notice of the voted approval of conditional rezoning by mailing the order to the parties to the zoning action?

If the date February 2, 1971, is the triggering date then the petition for reconsideration filed on March 4, 1971, was beyond the time limited by § 30.41 (a) (30 days). Similarly, in such a case the District Council’s vote to reconsider, taken on April 8, 1971, was beyond the time limited by § 80.41 (b) (60 days).

On the other hand, if the date February 10, 1971, is the triggering'date, then both the petition for reconsideration and the District Council’s action upon it were timely.

We think that February 10,1971, was the triggering date. The clear legislative determination to authorize conditional zoning contains not the slightest indication that the revisory and finality provisions of the ordinance should not apply to final orders in such cases.

The reconsideration provisions are interacting and apply fully to conditional reclassifications under § 30.5, et seq., supra.

We hold, accordingly, that the petition for reconsideration of March 4, 1971, was filed with thirty (30) days of the effective date of conditional rezoning (February 10, 1971). Similarly, the District Council’s vote to reconsider (April 8, 1971) was taken within sixty (60) days of the effective date of the original decision (February 10, 1971). See § 30.41 (b), supra.

We are reinforced in this view by the fact that if the period of limitations for filing a petition for reconsideration were held to begin on the date of the vote by the District Council, the parties’ opportunity to seek reconsideration would be lost if notice of decision was withheld for thirty-one days. In such a case, the ordinance’s obvious purpose to assure meaningful notice of decision to parties to zoning cases would become a mockery.

Order reversed and cause remanded for further proceedings not inconsistent with this opinion.

Costs to abide the result of the ultimate decision.

      . The application for rezoning from a residential to a commercial classification was filed prior to adoption of the charter form of government in Prince George’s County. Under the charter, the “County Council sitting as the District Council” succeeded to the rezoning powers previously vested in the former District Council. The organizational change has no bearing upon the issues now before this Court.

      . February 10,1971, is the date upon which the District Council mailed to the parties a notice of its conditional reclassification order of February ° n<vn.

      . § 30.52{ supra, provides, inter alia, that: “Failure [of the applicant] to advise in writing within such period of such acceptance or rejection shall be deemed a rejection thereof. Rejection shall have the effect of voiding the zoning amendment and reverting the property to its prior zoning classification____”