author: Morton, J.,

text:
    CLAUDIA J. TOMAS v. JOHN M. TOMAS
    [No. 184,
    September Term, 1976.]

      Decided December 3, 1976.

    The cause was argued before Morton, Powers and Melvin, JJ.

      R. Calvert Steuart, with whom were Pickett, Houlon & Berman on the brief, for appellant.
    No appearance or brief for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellant, Claudia J. Tomas, filed a bill of complaint in the Circuit Court for Prince George’s County (Mathias, J., presiding) on July 29,1975, seeking an absolute divorce from appellee, John M. Tomas, on the grounds of voluntary separation. By motion raising preliminary objection, appellee challenged the court’s jurisdiction, alleging that neither party was a resident of Maryland at the time the action was initiated. After hearing testimony on December 22, 1975, the court granted appellee’s motion and dismissed the action by order dated January 29, 1976. It is from this ruling that the present appeal is taken.

The issue before us is whether the Circuit Court was correct in finding that Mrs. Tomas was not domiciled in Maryland at the time the action was initiated. The relevant facts are fairly simple. Mrs. Tomas lived continuously in Maryland from May, 1972, to July 23, 1975. While living in Maryland she was employed by the U. S. Department of Agriculture at Beltsville. There is no dispute that Mrs. Tomas was domiciled in Maryland during that period.

Shortly before the bill of complaint was filed in this case, Mrs. Tomas moved to the New Jersey home of her parents. She testified at the hearing that this move was motivated by her desire to participate in a job training program (not then available in Maryland) which would eventually qualify her for a higher position with the Department of Agriculture. She also indicated that she planned to return to Maryland upon completion of her training.

Appellee argues that by moving to New Jersey, appellant gave up her Maryland domicile. Appellee elicited testimony which purported to show that Mrs. Tomas did not intend to return to Maryland after completing the program in New Jersey. The court accepted appellee’s theory and ruled that it lacked jurisdiction in the matter. In doing so, the court emphasized that Mrs. Tomas had in fact left Maryland prior to the filing of her complaint. The court also relied on its conclusion that the evidence did not demonstrate an intent to return to Maryland.

Although there is testimony to contradict the latter finding, it is not necessary to determine whether such finding was clearly erroneous, as appellant contends, because the record shows that the court did not correctly apply the Maryland law in reaching its conclusion. We quote the relevant portions of the court’s opinion:

“]T]his case is going to turn to relatively simple facts. * * * [T]he plaintiff in this case did in fact move from Prince George’s County, Maryland, to New Jersey or Delaware prior to the time that the Bill was even filed.
“In other words, her move to New Jersey to take the training program * * * was not related to a training with an intent to return to the Agriculture Department in Prince George’s County, Maryland.”

It is apparent from these portions of the opinion that the court’s decision was based on two factors: first, that appellant had in fact moved and, second, that the court interpreted the evidence as showing that appellant did not intend to return to Maryland. Yet, under the applicable Maryland law, neither of these factors can be conclusive. “It is * * * well settled in Maryland that a person’s domicile remains the same until he acquires a new residence with an intention to remain there indefinitely and that the burden of proof rests on the party who claims that a change of domicile has taken place.” Bartell v. Bartell, 28 Md. App. 180, 186 (1975), rev’d on other grounds, 278 Md. 12 (1976).

The “simple fact” that appellant had moved, which was given considerable weight by the court below, is inconclusive without additional evidence showing an intent to remain at the new residence. Instead of relying on its finding that Mrs. Tomas did not demonstrate an intent to return to Maryland, the court should have required an affirmative showing by appellee that Mrs. Tomas intended to remain at the New Jersey residence “indefinitely.” Otherwise stated, Mrs. Tomas did not give up or lose her Maryland domicile since it was not shown that she had established a new and different domicile. Absent such a showing, her domicile remains in Maryland.

Order granting motion of dismissal, reversed; case remanded for farther proceedings; costs to be paid by appellee.

      . The Maryland courts have consistently held that the words “reside” or “resident” in a constitutional provision or statute are “construed to mean domicile” unless a contrary intent be shown. See Bainum v. Kalen, 272 Md. 490 (1974).


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    WALTER RUSSELL HAWKINS v. STATE OF MARYLAND
    [No. 211,
    September Term, 1976.]

      Decided December 3, 1976.

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

      George E. Bums, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Daniel Cassidy, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Walter Russell Hawkins, the appellant, was convicted of rape, false imprisonment, and the use of a handgun in the commission of a crime of violence by the Circuit Court for Prince George’s County. The jury also specifically found him to have been sane at the time of the offenses. Judge Joseph A. Mattingly imposed sentences totaling thirty-five years. On appeal the appellant contends the trial judge failed to require the proper order of proof, that the evidence was insufficient to support the finding of sanity, and that the trial judge erred in denying a new trial and in failing to merge the crimes of false imprisonment and rape.

The victim testified that on May 21,1974, she was waiting in a wooded area for a friend when the appellant approached her. After a brief conversation, he seized her by the throat and held a gun to her side. She was ordered to disrobe and lie on the ground; whereupon her assailant engaged in sexual intercourse with her without her consent. The defense introduced no evidence denying either the crime or the criminal agency, but after the conclusion of the State’s case produced a psychiatrist who testified, out of the presence of the jury, that in his opinion the appellant was insane at the time the crime was committed. The trial judge ruled that the issue of insanity was presented, and the appellant proceeded to introduce, before the jury, his evidence tending to show that he was insane at the time the crime was committed. The State produced evidence tending to show that he was sane at the time.

Dr. Irving L. Berman, a psychiatrist, testified that he had evaluated the appellant on the basis of a one hour interview on September 19, 1975 and upon examination of the reports and tests from Clifton T. Perkins Hospital. It was his opinion that the appellant was “suffering from chronic undifferentiated schizophrenia” and because of this mental disorder Hawkins lacked the ability to conform his conduct to the requirements of the law. Dr. Irwin J. Papish testified that he had interviewed the appellant on September 10, 12, and October 6, 1975. Based on the interviews, tests, and reports supplied by Clifton T. Perkins Hospital he concluded:

“What I found was that for many years he has been suffering from both visual and auditory hallucinations. These are hearing things that are not real and seeing things that are not real. He has also tended to have suspicious, somewhat paranoid feelings about other people; that they would again have some malice or hostility or ill will towards him. And this has been a feature of his illness.”
“I would state that I think he had some impaired capacity to appreciate the criminality of his conduct, but that he very definitely was substantially impaired as to his ability to conform his conduct to the requirements of the law.”

Appellant’s wife, brother, and cousin testified for the defense stating that Hawkins had suffered from hallucinations and delusions since he was 14 or 15 years of age. (He was 25 at the time the crime was committed.)

A report to the court from the Clifton T. Perkins Hospital, signed by Dr. Yavuz Inel, was introduced; it contained the following paragraph:

“Our evaluation disclosed a Full Scale I.Q. of 93 on the Wechsler Adult Intelligence Scale with no evidence of psychotic symptoms. Psychological examination disclosed adequate reality testing, inadequacy and lack of basic trust. Dr. Inel, Acting Superintendent and Dr. Aceituno, Staff Psychiatrist diagnosed the patient as Schizophrenia, Chronic Undifferentiated Type (in Remission) and felt that, at the time of the offenses, the patient’s mental disorder was in a state of remission, and therefore, he was responsible for his actions. Dr. Mola, Staff Psychiatrist, diagnosed the patient as Schizophrenia, Chronic Undifferentiated Type and she offered the opinion that, at the time of the various offenses, the patient was suffering from Schizophrenia and, because of that, he was not responsible for his behavior. Dr. Adamo, Acting Clinical Director, found no evidence of Schizophrenia at this time or during the extended period at which time the alleged offenses occurred. His diagnosis was Schizoid Personality with Anti-Social Features. It was Dr. Adamo’s further opinion that this patient has been attempting to malinger more serious psychopathology such as auditory and visual hallucinations since the age of sixteen. Dr. Inel also agreed that the patient is attempting to malinger a psychosis.”

Dr. Ido Adamo testified on behalf of the State:

“A. It is my opinion that at the time of all the offenses he was not suffering from a mental disorder which could have caused him to lack substantial capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law.
Q. Doctor, what wás the opinion of Dr. Inel of your staff?
A. Dr. Inel agreed with my opinion.
Q. And how about Dr. Aceituno?
A. He also agreed.
Q. And Mrs. Mola?
A. Mrs. Mola gave a dissenting opinion. She felt that he was suffering from a schizophrenia and, therefore, he was not responsible.
Q. Doctor, in the Clifton T. Perkins report, Defense Exhibit No. 2, is there an admission note in there by Mrs. Mola?
A. On admission she happened to see this man when he first came on April 9th, and at that time she didn’t find any evidence of a psychosis or schizophrenia or delusions. She felt he was a little depressed, non-committal. He didn’t want to talk about the offenses, but she felt there was no evidence of psychosis. She gave the diagnosis of anxiety neurosis at that time. Then she changed her diagnosis.
Q. Doctor, in the report you state that the Defendant has schizoid personality with antisocial features. Would you please explain that diagnosis to the ladies and gentlemen of the jury?
A. That was my diagnosis and still is. Schizoid personality is a personality disorder. It refers to individuals who are somewhat shy, unable to relate well to other people to express their feelings, to show hostility openly. They are suspicious, they don't trust people. That is a schizoid personality. The antisocial features are because of the attitude with regard to the various offenses.
Q. Doctor, have you had an opportunity to sit in the courtroom today as an expert, with the permission of the Court, and listen to some of the defense witnesses in this case?
A. Some of them, yes.
Q. And have you had an opportunity to speak with a Mr. George Shearard, a co-worker of the Defendant?
A. Yes, I did.
Q. And in your conversations with Mr. Shearard as to the Defendant’s past conduct over the last five years, did that strengthen or weaken your diagnosis of the Defendant?
A. It actually reinforces my opinion that I stated very clearly in the letter — I personally dictated the report of the findings of the staff — that there was no evidence that this man has ever been showing clear signs of a psychosis. And in discussions with Mr. Shearard he indicated that he knew him for five or six years — he also is a mail carrier — and never at no time did he notice anything unusual or peculiar in the way he was talking, the way he was communicating with people, with himself, which confirms my own impression.
Q. Are you aware of the fact that the Defendant lived with his wife and two children for approximately eight and a half years?
A. That is correct, yes.
Q. How would that fact have a bearing on your opinion?
A. Well, it is some differences with my own colleagues at Perkins, some of them they actually gave a diagnosis chronic undifferentiated, although they felt he was in remission. And my opinion was that this man has never been documented or reported in a documented fashion as being á psychotic. He has been saying that he hears voices, he has also visions since he was 16. He also has been saying that he becomes some other man within himself who controls him. Now, if a man, if any person develops this kind of symptoms which, as they are reported, they are very severe, very serious to require admission to a psychiatric facility, the individual would be unable to function with those symptoms. Those are symptoms of psychosis, not just schizophrenia. Schizophrenia, there can be some signs. But sometimes a schizophrenic patient can function within some limitations. But when a schizophrenic patient develops these gross secondary symptoms, such as hallucinations, they just can’t function, cannot marry, cannot properly care for their families. They cannot function at work where they are staying for a period of time without drawing the attention of a psychiatrist, coming to the attention of a psychiatrist. That is why I objected to diagnosing this man as a schizophrenia, chronic undifferentiated type. Even the psychological testing, the psychological does not show this man has a psychosis. At the time of the testing, the psychological simply indicated that under stress this individual can develop something else. But it doesn’t say that he will. He can; it is possible.
Q. Doctor, in your report you indicate that you felt the Defendant was malingering.
A. That is correct. The thinking, the way he communicated with us showed that he did not have a thinking disorder, which would be what we call a primary symptom. In order to have a secondary symptom, such as hallucinations, one must show signs of a primary disorder, which is basically in the thinking and the feelings. And he did not show those signs. Therefore, in the absence of that, I felt that he was just saying that he hears the voices in order to exculpate himself from criminal responsibility.
Q. Doctor, did any of the other psychiatrists on the staff agree with your opinion as to the Defendant’s malingering?
A. Dr. Inel agreed with me, although it is not stated in the staff notes.”

“Did the Trial Judge Abuse His Discretion in Permitting the Proper Order of Proof to be Violated?”

At the conclusion of the State’s case, appellant offered a motion for acquittal, arguing in effect that his plea was sufficient to raise the issue of insanity and the State had produced no evidence to prove that the appellant was sane. The trial judge denied the motion on the basis that no evidence of insanity had been produced, and therefore the State could at this point rely on the familiar presumption of sanity. Appellant does not contest that ruling on this appeal. After the motion to acquit was denied, appellant offered evidence outside the presence of the jury that appellant was insane at the time of the offenses. After the court ruled the evidence was sufficient to present an issue as to sanity, the appellant called upon the State to produce its evidence as to sanity. The court ruled the appellant had to present his evidence before the jury first, and then the State could produce its evidence on rebuttal.

Appellant argues that in Bradford v. State, 234 Md. 505, 512, 200 A. 2d 150 (1964), the Court of Appeals ruled that when the defendant produces evidence, sufficiently rebutting the presumption of sanity, it then becomes the State’s burden to prove sanity beyond a reasonable doubt initially. We do not think Bradford supports the argument. In Bradford the Court was considering the question of whether once the issue of insanity is properly raised, does the State have the burden of proving, beyond a reasonable doubt, that the accused was sane, or, as in some states, must the defense prove, by a preponderance of evidence, that the accused was insane. The court ruled that once the issue was properly raised the burden of proving sanity beyond a reasonable doubt was upon the State. It did not address itself to the order of proof, that is, who had to present evidence as to sanity or insanity to the jury first.

Appellant also relies on Strawderman v. State, 4 Md. App. 689, 244 A. 2d 888 (1968), cert. denied, 252 Md. 733, wherein we reiterated the rule, once the issue of insanity was properly raised the State must prove sanity beyond a reasonable doubt. We did not address ourselves to the issue raised here but did state that the evidence concerning the insanity should first be presented outside of the presence of the jury. We reiterated this holding in Dennis v. State, 13 Md. App. 564, 284 A. 2d 256 (1971), cert. denied, 264 Md. 747. Once again, we did not address the specific issue raised by the appellant. We have no difficulty in holding, however, the trial judge arrived at the proper conclusion. The rule requiring the defense to produce evidence of insanity initially outside of the presence of the jury is a means of avoiding confusion by precluding such evidence, before the jury, absent a contest as to sanity. The issue is not raised in the presence of the jury, the trier of the facts, until similar evidence is presented to them, and until that occurs, the State can perfectly properly rely on the presumption that all men are sane. Bradford v. State, supra at 509. Although the State presented no evidence as to sanity in this case in chief, the defense did present evidence as to insanity in its case. The State’s evidence of sanity was therefore timely introduced in rebuttal. Hepple & Jones v. State, 31 Md. App. 525, 358 A. 2d 283 (1976), cert. granted, Sept. 15, 1976.

“Was the Evidence Insufficient to Find the Appellant Sane Beyond a Reasonable Doubt?”

We have set out, somewhat at length, Dr. Ido Adamo’s testimony as to his opinion of the appellant’s sanity at the time of the commission of the offense. In summary, his testimony was that despite some claim by the appellant and his relatives that the accused was a victim of delusions, it was his opinion that the symptoms could not have been as bad as described; otherwise the appellant could not have led a normal family life for eight and one-half years, fathered two children and worked steadily for five and one-half years as a mail carrier. We repeat what we said in Mahoney v. State, 8 Md. App. 44, 50, 257 A. 2d 462 (1969), cert. denied, 257 Md. 734, “It was the function of the jury to resolve the conflicting evidence on the issue and the weight to be given it was a matter for them.” See also Avey v. State, 9 Md. App. 227, 241 263 A. 2d 609 (1970), cert. denied, 258 Md. 725.

“Did the Trial Judge A buse His Discretion in Refusing to Grant a New Trial?”

In Bremer v. State, 18 Md. App. 291, 352, 307 A. 2d 503 (1973), cert. denied, 269 Md. 755, U. S. cert. denied, 415 U. S. 930, we stated:

“The Court of Appeals has recently reaffirmed, in sure and certain language, the established principle that generally the ruling of the trial court on a motion for a new trial in a criminal case lies within the sound discretion of the trial court and cannot be reviewed on appeal, except, perhaps, when the judicial discretion is clearly abused. State v. Devers, 260 Md. 360, 373-381.”

Appellant, to support his argument that the trial judge abused his discretion in denying a motion for a new trial, alleges that the evidence was insufficient to show sanity. As we have stated above, we find that it was sufficient, and thus this argument must fail. In addition, he argues that in three companion cases other courts had found the appellant insane at other times. We cannot say that this argument has any merit because it is entirely possible that he could have been insane at some time but not necessarily on May 21, 1974. The complete answer to appellant’s objection is that there was sufficient evidence to support the finding of the jury; the trial judge did not see any manifest injustice, nor do we.

“Was the Appellant Improperly Convicted of False Imprisonment?”

Under this argument the appellant alleges that his convictions of false imprisonment and rape should have merged. We agree. In Moore v. State, 23 Md. App. 540, 329 A. 2d 48 (1974), cert. denied, 274 Md. 730, this Court declined to merge kidnapping and rape where there was evidence that the victim was taken into the car and driven quite a distance prior to the time the rape occurred, reiterating a similar finding in Rice v. State, 9 Md. App. 552, 566, 267 A. 2d 261 (1970), cert. denied, 259 Md. 735. In the latter case we quoted the established rule from Stewart v. State, 4 Md. App. 565, 569, 244 A. 2d 452 (1968), wherein we stated:

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

The facts of the instant case show the victim was detained only a sufficient time to accomplish the rape. False imprisonment does not require a carrying away, but simply an unlawful confinement. All of the facts necessary to prove the lesser offense were essential to proving the greater one and, therefore, the two offenses merged. See generally Rice, supra. To hold otherwise would be to hold that in every case of rape, a conviction for false imprisonment would also be proper. Of course, confinement after or before the rape is committed would preclude the merger.

Judgment as to false imprisonment vacated.

Other judgments affirmed.

Appellant to pay costs.

      . Dr. Inel’s opinion concerning malingering was not included in the staff notes which he prepared, but was included in this report which was dictated by Dr. Adamo.


author:
Liss, J.,
      Powers, J.,

text:
    JAMES WALTER PAUL et ux. v. GEORGE PAUL LYONS
    [No. 218,
    September Term, 1976.]

      Decided December 6, 1976.

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

      Barry H. Helfand, with whom were Paul T. Stein and Helfand & Stein, P.A. on the brief, for appellants.

      Charles C. Bowie, with whom were Brault, Graham, Scott & Brault on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court. Powers, J., dissents and filed a dissenting opinion at page 98 infra.

Judge Dudley Digges, speaking for the majority in Hensel v. Backward, 273 Md. 426, 427, 330 A. 2d 196, 197 (1974), a case in which the application of the “boulevard rule” was sought to be avoided, said:

“Like the Rock of Gibraltar we remain firm and will not allow the legislative mandates contained in this right-of-way statute to be judicially either bypassed or otherwise eroded through new waves of attack.”

The sole question in this case is — Is this really a piece of the Rock?

The testimony produced at the trial before a jury consisted in pertinent part of the following facts: Appellants are husband and wife. On July 27,1973, at about 6 p.m. on a clear and sunny day, appellant James Paul (Paul) was operating a VW Beetle at the intersection of Howard Chapel and Damascus Roads in Montgomery County. Traffic on Howard Chapel Road, along which Paul was proceeding, was controlled by a stop sign; Damascus Road is a through highway. Paul testified that he stopped at the stop sign and looking to his right, he could see for a distance of about 100-150 feet. No other vehicle was seen approaching from his right, so he proceeded to inch out and make a right hand turn into Damascus Road southbound. He was approximately 25 feet down Damascus Road when he first saw a Chevrolet Blazer (a multi-purpose type vehicle in the truck category) approaching on his side of the street to the left of the center line. The Blazer, later determined to be operated by George Lyons (Lyons), was passing another car at a point governed by a no passing zone. Paul pulled his vehicle over to the middle left within the solid yellow lines, with the left side of his vehicle at the edge of the yellow lines. Paul’s vehicle was struck twice by the Lyons’ vehicle and pushed back toward the intersection, some 4 to 6 seconds having elapsed from the time that Paul first saw the other vehicle until the moment of impact. Appellant testified that he did not move his vehicle to the left or right because there was a ditch on the right and cars approaching on the left. There was testimony concerning the injuries and damages sustained by Paul, but for the purpose of this appeal it need not be considered. At the close of appellants’ case, appellee offered a motion for a directed verdict on the issue of liability which the trial court granted; and in discharging the jury, the court said:

“The boulevard rule holds that a person who is the favored driver that is who is on the boulevard has for all intents and purposes an absolute right of way while he’s on that road, and the person who leaves the stop sign and enters the boulevard insures the safety of any person who is on that boulevard that he will be able to enter the road or cross the road safely.”

Judgment was entered in favor of appellee as a result of the directed verdict, and it is from that judgment that this appeal was seasonably filed. We shall reverse for the reasons stated herein.

In determining whether the trial court was correct in granting the motion for a directed verdict, this Court must consider the evidence in a light most favorable to the appellants together with all reasonable and legitimate inferences which may be deduced therefrom. Wood v. Johnson, 242 Md. 446, 219 A. 2d 231 (1966); Sun Cab v. Carter, 14 Md. App. 395, 287 A. 2d 73 (1972).

The “boulevard rule” requires traffic on an unfavored highway to come to a full stop and yield the right-of-way at the entrance to a through highway. The rule, Maryland Code (1957, 1970 Repl. Vol.) Art. 66V2 § 11-403 (b), is too well known to require its verbatim repetition in this opinion.

We are aware of the long line of cases ably summarized by Judge Digges in Creaser v. Owens, 267 Md. 238, 297 A. 2d 235 (1972), and the principles there enunciated, which have been followed by both the Court of Appeals in Hensel v. Beckward, supra, and this Court in Johnson v. Dortch, 27 Md. App. 605, 342 A. 2d 326 (1975). In Hensel at page 431, Judge Digges stated the rule as follows:

“This large group of previous cases makes clear that when the unfavored driver sues, the ‘boulevard rule’ barring his recovery applies to an accident which occurs between an unfavored driver and the favored motorist on the ‘boulevard’, either in the intersection or at a point, though technically outside the intersection, so close to it that the unfavored entering driver interferes with the favored driver’s right-of-way into or through the intersection .. . unless, under appropriate circumstances, the unfavored driver is rescued by the doctrine of last clear chance ....” (citations omitted).

Appellants urge, however, that our Courts have recognized a refinement of this rule which more properly applies to the case at bar. This has been beautifully stated by Judge Oppenheimer in Grue, et al. v. Collins, 237 Md. 150, 157, 205 A. 2d 260, 263 (1964):

“However, once the entering car has cleared the intersection and reached a point where it does not interfere with the favored driver’s right of way through the intersection, the boulevard law ceases to be applicable. McCann v. Crum, 231 Md. 65, 188 A. 2d 537 (1963) and cases therein cited. Rigorous as are the duties imposed upon the unfavored driver in entering the public highway for the protection of the public and for the smooth flow of traffic, he is not a perpetual pariah; if he has observed the mandates of the law in entering the intersection and has become a part of the flow of traffic on the favored highway, he has the same rights and is subject to the same duties as the other drivers on that highway.”

Appellants contend that this rather than the “boulevard rule” is applicable to this case. In Ness v. Males, 201 Md. 235, 93 A. 2d 541 (1953), where the evidence showed that an unfavored driver after completing his turn into a favored highway had proceeded on his proper side of the highway at least 33 feet north of the intersection before colliding with a southbound tractor trailer, an inference that the accident was a passing one, and not an intersectional one, was held to be permissible.

In Kowalewski v. Carter, 11 Md. App. 182, 273 A. 2d 212 (1971), a similar case in which the applicability of the “boulevard rule” was considered, Judge Orth, speaking for this Court, said at 189:

“The lower court submitted to the jury, and we think properly so, the issue whether the collision occurred while the Kowalewski car was entering Route 22 or whether at the time his car was struck by the Carter car he had yielded the right-of-way and become a part of the flow of traffic on the favored highway. The evidence was not conclusive that the accident did occur while entering. There was no evidence that the collision occurred within the confines of the intersection so the presumption that the unfavored driver was entering the favored highway at the time of the accident did not arise. Nor was the evidence conclusive that the unfavored car had successfully entered.”

On the record before us, we believe that the issue of whether the collision occurred while appellant was entering the favored highway so as to interfere with the favored driver’s right of passage through the intersection, or whether appellant’s car had cleared the intersection, entered the flow of traffic, and reached a point where his vehicle did not interfere with the favored driver’s right-of-way through the intersection should not have been withdrawn from the jury: the appellant flatly stated in his testimony that he had completed his turn into Damascus Road and had proceeded about 25 feet on Damascus Road before he noticed anything unusual. At that point he saw the Lyons’ vehicle intruding onto his side of the road in violation of a no passing zone while attempting to pass another vehicle. The state trooper who investigated the accident was vague in his testimony as to the point of impact, but at one time placed it at some 10 feet from the intersection. It was uncontradicted, however, that the vehicles collided twice during the course of the accident and that Paul’s car was pushed back by the impact. The trooper obtained his information about the accident from both drivers, and his official report stated that Paul’s vehicle had just completed a right hand turn when it was struck by Lyons’ car which was attempting to pass a slower vehicle. Lyons, in answer to an interrogatory which was read into the record, stated that he was in the process of passing another vehicle when he saw appellant enter Damascus Road and “started to come straight at me.”

When we give the appellant, as we are required to do, the reasonable and legitimate inferences which arise from the state of this record it is, at least, arguable that this accident was not governed by the “boulevard rule.” It is clear, then, that the trial court erred in withdrawing the case from the jury.

We believe that our decision in this case does not disturb the pristine beauty of the Rock and that the “boulevard rule” remains the beacon which our superiors intended it to be.

Judgment reversed.

Remanded for new trial.

Costs to be paid by appellee.

Powers, J.,

dissenting:

I cannot agree that the boulevard rule does not apply to the motor vehicle collision which gave rise to this case. I am satisfied that the evidence showed that the collision occurred because of Mr. Paul’s entry upon the favored highway, and before he had shed his character as a newly entering driver.

The most favorable view that could be taken of the plaintiffs’ evidence is that Mr. Paul, on Howard Chapel Road, stopped at the stop sign, and then entered the intersection, making a right turn onto Damascus Road. Mr. Paul testified that he had traveled 25 feet on Damascus Road when he saw the Lyons vehicle coming at him on his side of the road. He estimated the time, presumably from then until the impact, as four to six seconds. He said that his car was driven back by the impact. He also said that when the cars came to rest they were within the intersection.

The investigating police officer, called as a witness by the plaintiffs, estimated that the point of impact was 10 feet from the intersection.

If the boulevard rule applied, Mr. Paul was negligent as a matter of law. That negligence precluded any recovery on his claim, and on the derivative claim by his wife, and the trial judge correctly directed a verdict for the defendant. I am not persuaded that Ness v. Males, 201 Md. 235, 93 A. 2d 541 (1953), or Grue v. Collins, 237 Md. 150, 205 A. 2d 260 (1964), support a different conclusion, especially in the light of the firm application of the rule in Creaser v. Owens, 267 Md. 238, 297 A. 2d 235 (1972); Hensel v. Beckward, 273 Md. 426, 330 A. 2d 196 (1974); and Johnson v. Dortch, 27 Md. App. 605, 342 A. 2d 326, cert. den., 276 Md. 745 (1975).

I would affirm the judgment of the circuit court.

      . We do not adopt this as a correct statement of the “boulevard rule.’’

      . Last clear chance is not an issue in this case.

      . Later, Chief Judge, Court of Special Appeals; presently Associate Judge, Court of Appeals.


author: Liss, J.,

text:
    MARY ALICE TERRY v. STATE OF MARYLAND
    [No. 233,
    September Term, 1976.]

      Decided December 6, 1976.

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

      Victoria A. Saltier, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Mary Ann Willin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

“Man's inhumanity to man Makes countless thousands mourn! ”

How much more mournful is the increasing incidence of brutality and abuse of children by adults?

The appellant, Mary Alice Terry, was convicted of second degree murder and child abuse in a jury trial in the Criminal Court of Baltimore (Levin, J., presiding).

In May of 1975, the Baltimore City Police were alerted to the fact that Michael Hall, the five year old son of the appellant, had been missing since sometime in September of 1974. The police in the course of their investigation interviewed the appellant, and she finally admitted that the child had died in September of 1974 and that she and a friend had disposed of the child’s body by throwing it into a storm sewer. The body was never recovered.

The appellant stated that the child had been sick for several days prior to his death because of beatings administered by her husband, John Terry, the child’s stepfather. She contended that she had not taken the child to the hospital or reported the incident to the police because her husband had threatened to kill her and two of her children who also lived with them if she reported the beatings.

The testimony at the trial revealed that Michael had resided with his grandmother in North Carolina until he was four years old. In November of 1973, he came to Baltimore to live with his mother and her husband. Almost immediately after his arrival at his mother’s home a systematic brutalization began. An aunt testified that shortly after Michael arrived she visited the Terry house for two months and saw Michael being beaten frequently with a leather strap. Michael’s ten year old brother and eight year old sister testified to mistreatment extending over a period of almost a year. The brother, Charles, saw the appellant beat Michael a “few times” with “a big white stick” and a “lot of times with a red strap.” He also testified that he saw his mother, the appellant, hang Michael “on the door by his feet a few times for a little while.” On one occasion he saw blood on Michael’s arms and face after the appellant “beat Michael by making him stand on his head.” She would not feed Michael “a lot” and would put him naked in the basement “a lot.” Michael was skinny and walked with a limp from a beating given him by his mother. The last time he saw his brother he was upstairs on a mattress throwing up for a long period of time. When he woke up the next morning Michael was gone and Charles never saw him again.

The sister, Yvette, substantiated the testimony of Charles and added that Michael had little scars on his back, arms and legs caused by the beatings administered by her mother and stepfather.

A next-door neighbor testified that Michael had “plenty” of scars on him and that she had seen the appellant “slam” him down and kick him in the buttocks. In addition, she said she had seen him being thrown out of the back door of the Terry house and had also seen him naked in the Terry’s basement. She heard beatings administered to him four or five times a week.

Another State’s witness, James Watson, testified that he had seen Michael beaten with a dog’s leash for two to three minutes on three to five occasions. He recalled the day Michael died was a Sunday, and that earlier in the week Michael was sick and “could hardly move” after the appellant had beaten him. He asked the appellant to take Michael to a doctor, but she did not do so. The day Michael died Watson and John Terry had been out together all day. When they returned, the appellant was waiting for them in the doorway and asked Watson to wait outside. John came out and said “we might as well tell him, he’ll find out anyway.” Appellant then told him Michael was dead. Watson saw Michael on the bed with raw wounds on his back and buttocks. Appellant told them she had beaten Michael, and when she turned him loose he began throwing up all over the floor. Appellant persuaded Watson to assist her in disposing of the body which was placed in a laundry bag and the bag and body dropped down a manhole into the sewer.

The final State’s witness was Dr. Hormez Guard, Assistant Medical Examiner for the State of Maryland. Dr. Guard recited his qualifications as an expert in the field of forensic pathology and stated that he was qualified to give opinions in that field. No issue was raised by defense counsel as to his expertise. Dr. Guard had been present in court during all of the testimony of the State’s witnesses with the exception of one, and the testimony of that witness was read to him. The doctor was then asked the following question:

“Now, again, Dr. Guard, based on the testimony that you have heard, seen, and which has been read back to you, with reference to the death of Michael Hall, can you with any reasonable degree of medical probability or reasonable probability tell the members of the jury the cause of death of Michael Hall?
MR. HARLAN: Your Honor, for the record I object. I do not wish to be heard.
THE COURT: Overruled. You may answer.
MR. HARLAN: Thank you, Your Honor.
A. From the testimony presented to this Court and to which I have been a witness for the last two days it is my opinion that the death of Michael Hall, a five year old child, resulted from cumulative effects of repeated child abuse.”

The State thereafter continued its questioning of Dr. Guard and elicited the following testimony:

“Q. Thank you, Dr. Guard. Dr. Guard, taking the facts of this particular case with which you are familiar would you enumerate for the members of the jury the compilation of causes of the death of Michael Hall?
A. As I said before I listened very carefully to the testimony presented by the two young siblings of young Michael Hall. Also the testimony of the others that were presented here. I have heard that he was beaten repeatedly with a wooden stick and with a heavy dog leash. I am aware of the types of dogs that were in the family, two large shepard dogs. That means that the leash was a strong metallic leash part of which was entered into evidence also. I have not seen the wooden stick but the way it is described it looked like it is a strong enough piece of wood which would inflict severe injuries. Then there is the record of causes of injuries which produced multiple scars. It must be realized that a scar is produced in skin when it is broken. If it is only a bruise which may redden or yellow on healing but disappears, does not leave a scar. When a scar is formed in the skin it means that the skin was broken and healing took place finally causing a dense fibrous scar. That means that at some time this injury had bled and had been an open wound. There is testimony to this where witnesses have said they have seen bleeding injuries on the skin of this child. There is evidence of chronic malnutrition. The child was repeatedly denied normal nourishing food at regular intervals. The siblings have said, that was also said by Mr. Watson, that he was denied food, that he had to feed him, this should be the normal procedure to come from the parents. And there was isolation in the basement which was, I do not know why it was used maybe it was used for punishment to bring in discipline. I do know what time of the year, what clothing on, he was put into the basement, it may have been in the winter time without proper clothing. He may have been exposed to extreme degrees of cold. Basements are not normally heated. And then the last which disturbed me most was hanging the child by his feet as demonstrated by his own brother in a drawing as to how it was done. The human body is not designed to live in an inverted condition. The anatomical systems of the human body, as the circulatory design in which the heart can pump the blood. In order to do that function very well the veins which bring the blood into the heart have valves. The veins of the legs have valves. But the veins of the neck and the upper portion do not have valves with the result if you invert a person and hold him in that position it would cause severe congestion of his face, his lungs, and it would congest his brain which may rupture some of his blood vessels and which would ultimately lead to death. We do not know how long this boy was hung upside down but with his condition of malnutrition, poor status, I am sure that this inversion of the body must have produced severe effects.
Q. Dr. Guard, in your opinion as an expert what was the manner of death?
MR. HARLAN: Objection for the record, Your Honor.
THE COURT: Overruled.
MR. HARLAN: Thank you, Your Honor?
A. In view of the evidence presented I come to the conclusion that the manner of death is to be considered as homicide.”

The appellant contends the questions propounded to Dr. Guard, in which he was requested to give an opinion as to the cause and manner of death of Michael Hall, were objectionable and the doctor should not have been permitted to testify. We have carefully considered the reasons given by the appellant and we do not agree. We shall affirm.

The appellant, for clarity, has separated her reasons for objecting to Dr. Guard’s testimony into four parts. Initially, she complains the trial court failed to apprise the jury that the witness was merely assuming the facts to be true. The appellant submits in support of her contention Treffinger v. Sterling, 269 Md. 356, 359, 305 A. 2d 829, 831 (1973), in which our Court of Appeals said that there are two methods to frame properly a hypothetical question. “[0]ne is to state for the witness such facts as are essential to the foundation of an opinion, ask him to assume the truth of the facts so stated, and then render an opinion upon them; the other is to ask the expert to predicate his opinion upon uncontradicted evidence heard or read and assumed to be true.”

Our reading of the cases does not convince us that a failure to include the prefatory phrases “assume the truth of the facts so stated” or “assumed to be true” would make otherwise admissible opinion evidence inadmissible and reversible error. To suggest that the jury might be misled into believing the witness was premising his opinion on a belief of the truth of the testimony rather than on an assumption of its truth seems to us to be specious. We note the trial court in its charge to the jury correctly stated the law as to the jury’s responsibility in considering the evidence. The trial court said:

“The testimony of a witness should be considered and weighed by you like any other evidence in this case, and given the weight to which you deem the opinion to be entitled. You may reject the opinion if the facts upon which it is based have not been established to your satisfaction by the evidence, or, if you are not satisfied with the reasons given in support of the opinion. However, the reverse may equally be true; i.e., if you do find credible the reasons advanced by the witness, then you may in your own judgment and determination give such credence to the expert’s opinion as you may wish.”

No objection was made to the charge as given, nor did the appellant request any additional clarifying instructions. In any event the issue has not been preserved for appellate review. Md. Rule 756 g.

Secondarily, the appellant urges that the witness failed to apprise the jury with particularity of the basis for his conclusions, and that the expert witness had an insufficient basis for expressing his opinion. Our reading of the record makes it clear that the basis for the witness’ conclusion was the testimony he had heard and had had read to him. The compilation of the causes of death to which he testified was fourfold and he categorized them as: (1) bleeding injuries to the body producing multiple scars; (2) chronic malnutrition; (3) exposure; and (4) inversion of the body. There was evidence in the case supporting each of these categories. The expert witness was subjected to rigorous cross-examination by competent trial counsel which the jury could consider in reaching its conclusion as to the weight to be given to the expert’s testimony. See Williams v. Graff, 194 Md. 516, 71 A. 2d 450 (1950); Plank v. Summers, 205 Md. 598, 109 A. 2d 914 (1954). We have quoted in full the statement by the expert as to the factual basis for his conclusion and we find it more than sufficient to support his conclusion.

We shall consider together the third and fourth complaints concerning the expert’s testimony. The appellant contends the witness’ opinion was of no appreciable help to the jury and that the opinion was based upon conflicting evidence.

The admission of expert testimony is within the sound discretion of the trial court. Nolan v. Dillon, 261 Md. 516, 276 A. 2d 36 (1971). The approved test as to the admissibility of expert opinion is whether the jury can receive appreciable help from the particular witness on the subject, not whether the jury can decide the particular issue without expert help. Nizer v. Phelps, 252 Md. 185, 249 A. 2d 112 (1967); Baltimore Co. v. State, Use of Keenan, 232 Md. 350, 193 A. 2d 30 (1962); Harper v. Higgs, 225 Md. 24, 169 A. 2d 661 (1961); 7 Wigmore, Evidence § 1923 (3rd ed. 1940); McCormick, Evidence § 13 (1972). The medical examiner’s testimony as to the factual basis on which he reached his conclusions was detailed and specific. The technical explanation of the effect that hanging the child by his feet would have on the child’s circulatory system was not information ordinarily known to the average layman. The explanation of the cumulative effect on the health and well-being of a child subjected to the abuse detailed in the testimony required the expertise of one familiar with the physiology of the human body. Our reading of the record convinces us that the trial court did not abuse its discretion and that the expert opinion and the factual basis upon which it was reached could have been and was of appreciable help to the jury. Nor is the appellant’s contention that the opinion was based on conflicting evidence of any merit. While it has been stated that an expert’s opinion based upon assumed facts cannot be based upon conflicting evidence as to the facts, the rule does not say that an expert may not express an opinion where some fact or facts may point to one conclusion and another or others point to an opposite conclusion. Twombley v. Fuller Brush Co., 221 Md, 476, 158 A. 2d 110 (1960); Nolan v. Dillon, supra. There is no basis for concluding that the trial court abused its discretion in admitting the expert’s opinion.

At argument, counsel for the appellant called our attention to Benjamin v. Woodring, 268 Md. 593, 303 A. 2d 779 (1973). We have carefully reviewed that case and find it to be inapposite. There the issue was whether the medical examiner’s statement of opinion in a death certificate that death resulted from a suicide was admissible. The examiner was not called as a witness. In spite of the suggestion by the Court that the investigative duties of medical examiners are limited by law to “essential facts concerning the medical causes of death,” we cannot conceive that this precludes calling the medical examiner as an expert witness to express his opinion in a case. Once called, testifying under oath, subject to the requirement that he state the basis for his conclusion and be subject to cross-examination, an entirely different situation exists than an effort to introduce that opinion into evidence solely on the basis of a death certificate.

Judgments affirmed.

Costs to be paid by appellant.

      . Robert Burns, Mom Was Made to Mourn, Stanza 7 (1786).


author: Moylan, J.,

text:
    PHILIP ASAY JEANDELL v. STATE OF MARYLAND
    [No. 236,
    September Term, 1976.]

      Decided December 6, 1976.

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

      H. Michael Hickson, Assigned Public Defender, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Floyd L. Parks, State’s Attorney for Kent County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Philip Asay Jeandell, was convicted in the Circuit Court for Kent County by a jury, presided over by Judge George B. Rasin, of breaking and entering a storehouse and related offenses. Upon this appeal, he raises the single contention that the evidence was not legally sufficient to permit the case to go to the jury. That sufficiency question, in turn, revolves around whether two State’s witnesses, Albert Williams and Michael Bell, were accomplices and whether, if that be so, their testimony was corroborated.

In terms of corpus delicti, it was established that the Eastern Shore Auto Supply Store in Chestertown was broken into at some time. over the weekend of Saturday-Sunday-Monday, October 4, 5 and 6, 1975. Merchandise was stolen therefrom. Ultimately the police picked up both Williams and Bell and interrogated them. They admitted their complicity in the breaking and the larceny and implicated the appellant as well. Their status as accomplices is without doubt.

As to the quality and nature of non-accomplice testimony sufficient to corroborate the testimony of accomplices, the law was well stated in Foxwell v. State, 13 Md. App. 37, at 39:

“Although only slight corroboration is necessary, the corroborative testimony must tend either: (1) to identify the defendant with the perpetrators of the crime, or; (2) to show the defendant’s participation in the crime itself. Spies v. State, 8 Md. App. 160, 162, 258 A. 2d 758.”

See also Early v. State, 13 Md. App. 182, 186. In terms of arguable corroboration, there was no testimony tending to show the appellant’s participation in the crime itself. At most, the corroborating testimony tried “to identify the defendant with the perpetrators of the crime.”

The only arguable corroboration came from Patricia Williams, the mother of one of the accomplices, and Cheryl Williams, the sister of that accomplice. Patricia Williams testified that she saw the appellant in the company of Williams and Bell at about 10:30 p.m. on Sunday evening, October 5, sitting on a porch of a house near her own residence on Cannon Street. Cheryl Williams testified that on that same evening of Sunday, October 5, she observed the appellant with Williams and Bell coming up Mill Street near Cannon Street. This was the sum total of the corroborative testimony.

The two accomplices, to be sure, had testified that they together with the appellant perpetrated the burglary and larceny over a period of several hours from roughly 9:30 p.m. to roughly 11:30 p.m. on that Sunday night of October 5 and that in the course of the breaking, they had to make several trips to the vicinity of Cannon Street, their home base, in order to get equipment.

It would be sufficient by way of corroboration for the State to show, by non-accomplice evidence, that the appellant was in the company of the perpetrators of the crime in the general vicinity of the crime scene and at about the time when the crime occurred. In Wise v. State, 8 Md. App. 61, we deemed corroboration sufficient when the non-accomplice testimony placed the defendant there in the company of the perpetrators at the scene of the crime and one hour before the crime occurred. In Kitt v. State, 2 Md. App. 306, the corroboration was sufficient which placed the defendant with the accomplice minutes after the robbery-murder in that case (but also in inculpatory possession of a gun). In Ham v. State, 7 Md. App. 474, the corroboration was held to be sufficient which placed the defendant together with the accomplice several hours after the robbery, but at the crime scene and in the vehicle used in the robbery. In Holt v. State, 3 Md. App. 544, the corroborating testimony was sufficient when the accomplice’s wife placed the accomplice and the defendant in that case together “immediately before and immediately after the hour of the robbery.”

The difference between the appellant and the State in this case is not on the state of the law. Both agree that non-accomplice testimony identifying the appellant with the accomplices at approximately the time when the crime occurred would be sufficient corroboration. The difference between the appellant and the State in this case is not over the facts either. Both agree that two non-accomplices placed the appellant with the accomplices on Sunday evening, October 5 — Patricia Williams putting them together at about 10:30 p.m. and Cheryl Williams placing them together at approximately 11 p.m. The difference rather between the appellant and the State is over an elusive nuance of analysis. We need to keep distinctly in mind the difference between the accomplice testimony which needs corroboration, on the one hand, and the non-accomplice testimony which supplies the corroboration, on the other hand.

The thrust of the State’s argument is that what is needed by way of corroboration is testimony placing the appellant in the company of the two accomplices, and thereby identifying him with the perpetrators of the crime, at or near 10:30 p.m. on October 5. If independent evidence had established that the crime had occurred during that several-hour period on Sunday evening, October 5, we think the corroborative testimony might well have been sufficient. The fallacy in the State’s argument, however, is that it depends upon the testimony of the accomplices, which needs corroboration, for the establishment of the corroboration. We must ask which of the two following propositions is the object of corroboration:

(1) That the appellant was identified with the perpetrators at approximately 10:30 p.m. on Sunday night, October 5; or

(2) That the appellant was identified with the perpetrators at approximately the time when the crime occurred. In terms of independent inculpatory significance, it is quite obviously the latter of the two propositions that is material. The State would argue, however, that in this case the two are identical — that to have established the first proposition by non-accomplice testimony is, ipso facto, to have established the second. The State’s argument, however, is an instance of the accomplice testimony pulling itself up by its own bootstraps — of the accomplice testimony being used in part to corroborate itself. The heart of the matter is that only the accomplice testimony itself serves to equate “10:30 p.m. on that Sunday evening” with “approximately the time when the crime occurred.”

The thing rather that must be established by independent, corroborating evidence is not the identifying of the appellant with the accomplices at roughly 10:30 p.m. on Sunday night but the identifying of the appellant with the accomplices at or near the time of the crime. That must be done independent of the accomplice testimony.

In terms of ascertaining the time when the crime occurred, the non-accomplice testimony gives us a range of almost 42 hours. Mr. Hickman, the store owner, testified that he closed his place of business, after having secured the doors and windows, at noon on Saturday, October 4. He was notified by the police of the breaking and entering and returned to his store at between 5:30 and 6 a.m. on Monday morning, October 6. A fuller presentation of evidence by the State — the officer who walked the beat on Saturday and Sunday and the officer who first observed evidence of breaking in the early morning hours of Monday — might well have closed this gap significantly. On the face of the record, however, that 42-hour gap was not closed. All, therefore, that the corroborating testimony did was place the appellant in the company of the accomplices at a time which could have been as much as 34V2 hours removed from the time of the perpetration of the crime (measured from noon on October 4 to 10:30 p.m. on October 5).

All the non-accomplice testimony could supply, in and of itself, by way of corroboration was that the appellant was observed with the perpetrators some blocks from the scene of the crime within a period no more than 34V2 hours from the time when the crime was perpetrated. That is clearly not sufficient by way of corroboration. We feel here as we did in Foxwell v. State, supra, at 40-41:

“While it is true that sufficient corroboration may be found in a showing that appellant was in the company of the perpetrators at the scene of the crime one hour before the crime, Wise v. State, 8 Md. App. 61, 258 A. 2d 55, there is no such evidence in this case. The admitted conversation by appellant with Perry occurred several hours earlier and eight blocks from the scene. Although this testimony places appellant and Perry together, the placement is too remote in time and place from the commission of the crime to be adequate corroboration under all the circumstances.”

Judgments reversed; case remanded for a new trial.

Costs to be paid by Kent County.


text:
    JOHN RESETAR, JR. v. THE STATE BOARD OF EDUCATION OF MARYLAND et al.
    [No. 241,
    September Term, 1976.]

      Decided December 6, 1976.

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

      Earl H. Davis and Josiah Lyman, with whom were Davis & Nace on the brief, for appellant.
    No appearance or brief for appellees.
   Thompson, J.,

delivered the opinion of the Court.

John Resetar, Jr., the appellant, was dismissed from his position as a teacher in Montgomery County which action was upheld by the State Board of Education. He appealed to the Circuit Court for Montgomery County. In the proceedings the appellant filed two petitions alleging he could not obtain a fair trial in Montgomery County and requesting a removal to another court having jurisdiction. As he alleged no facts showing why he could not obtain a fair trial in Montgomery County, he was relying upon an alleged absolute constitutional right of removal under Article IV, section 8 of the Maryland Constitution. The court denied the motion. An appeal from such an order, though interlocutory in nature, does lie, providing the order denies an absolute constitutional right. Smith v. Fredericktown Bank & Trust Company, 258 Md. 141, 265 A. 2d 236 (1970). Contra if the right of removal is discretionary with the court. Johnson v. State, 271 Md. 189, 191, 315 A. 2d 524 (1974) .

Unfortunately for the appellant’s position, the Court of Appeals in Davidson v. Miller, 276 Md. 54, 344 A. 2d 422 (1975) , declared Article IV, section 8 of the Maryland Constitution in conflict with the Equal Protection Clause of the United States Constitution insofar as section 8 purports to give an absolute right of removal.

As the appellant has no absolute constitutional right of removal we have no jurisdiction and we must dismiss the appeal from the interlocutory order sua sponte. Nu Car Carriers, Inc., et al. v. Everett, et al., 33 Md. App. 310, 364 A. 2d 71 (1976); Firstman v. Atlantic Construction & Supply Co., 28 Md. App. 285, 345 A. 2d 118 (1975).

Appeal dismissed.

Appellant to pay the costs.

      . Appellant also cites the recently enacted Chapter 454 of the Laws of 1976 amending Courts and Judicial Proceedings Article, § 6-204 (Code, 1974 Vol.,_1975 Cum. Supp.) as authority for the_right to have his case removed. This was declared unconstitutional in Perkins v. Eskridge, 278 Md. 619, 366 A. 2d 21 (1976), per curiam order filed Sept. 24, 1976.


author: Menchine, J.,

text:
    BENJAMIN B. WEITZ v. EDWARD G. MARRAM et ux.
    [No. 246,
    September Term, 1976.]

      Decided December 7, 1976.

      The cause was argued before Morton, Menchine and Mason, JJ.

      Edward S. Horowitz for appellant.

      Eliot SisJdnd and Basil E. Moore, Jr., for appellees.
   Menchine, J.,

delivered the opinion of the Court.

This is an appeal by Benjamin B. Weitz (Weitz or appellant) from a judgment in his favor in the amount of $1571.43 against Edward G. Marram (Marram or appellee).

The law action had been initiated by appellant in the Circuit Court for Prince George’s County by way of a declaration and confession of judgment under which judgment by confession in the amount of $60,000.00 had been entered against Edward G. Marram, Beverly S. Marram, Robert V. MacKenzie and Jennie MacKenzie. The trial court, purporting to act under Maryland Rule 645, had vacated the judgment by confession with leave to all defendants to file pleadings and to contest liability on the merits. An earlier appeal by Weitz contested vacation of that judgment as to the defendants, Robert V. MacKenzie and Jennie MacKenzie, upon the ground that the motion by those two defendants to vacate the judgment against them had not been filed within the time limited by Rule 645, but judgment had become enrolled and was beyond the trial court’s power to strike. The Court of Appeals in Weitz v. MacKenzie, 273 Md. 628, 331 A. 2d 291 (1975), sustained Weitz’s prior appeal and restored finality to the $60,000.00 judgment as to the MacKenzies.

Vacation of the initial judgment for $60,000.00 against Edward G. Marram and Beverly S. Marram was not an issue in Weitz v. MacKenzie, supra, and is not here.

After voluntary dismissal with prejudice as to Beverly S. Marram, the case came to bench trial on the merits in the Circuit Court for Prince George’s County as to Marram only. The trial judge gave judgment in favor of Weitz against Marram for $1571.43, the result of his holding that Weitz in spite of the fact that he had paid $60,000.00 to American National Bank of Maryland and had received the promissory note of a principal debtor and an assignment of a guaranty agreement to the Bank, was entitled only to proportional contribution from Marram. The trial judge said: .. the plaintiff paid $60,000.00, one seventh of which is $8571.43; since it is stipulated that the defendant has already remitted $7000.00 to the plaintiff, judgment will be less this amount.” The trial judge rejected Weitz’s claim of entitlement to counsel fees.

Weitz has appealed to this Court. Marram did not appeal.

Weitz’s principal contention is that he acquired, as assignee of American National Bank of Maryland, all rights possessed by the latter under a guaranty agreement and thus was entitled to recover judgment against Marram as fully as could the Bank.

Weitz alternatively contends that, “If this Court holds appellant is entitled to contribution only, appellant is entitled to contribution based on the number of co-guarantors within the jurisdiction who are not insolvent.”

The Principal Contention

Weitz, claiming as an assignee of a guaranty agreement running to American National Bank of Maryland, contends that he acquired all rights possessed by the latter, uninfluenced by the circumstance that he was one of seven guarantors who executed the assigned guaranty.

The undisputed facts are these:

On October 2, 1972, Benjamin B. Weitz (appellant) and others had executed a guaranty agreement running to American National Bank of Maryland, in the amount of $60,000.00. In parts here pertinent the guaranty agreement provided:

“2. In order to induce Bank to make a loan or loans, or renewal or extension thereof, to [Pets and Things, Inc.], the undersigned hereby unconditionally guarantees to the Bank... the prompt payment when due, of [Pets and Things, Inc.] Liabilities to Bank....
3. The amount of the Undersigned’s liability hereunder shall be Sixty Thousand and no/100, $60,000.00.
7. ... The Liability of [Pets and Things, Inc.] and each of the Undersigned shall be joint and several.”

On October 4, 1972, Pets and Things, Inc. by two of its officers, Weitz and Marram, executed a promissory note to American National Bank for $60,000.00, payable ninety days after that date.

On July 2, 1973, after Weitz had paid $5,000.00 on account of the principal of the prior note, Pets and Things, Inc. by two of its officers, Weitz and Marram, executed a new promissory note to American National Bank for $55,000.00, payable ninety-one days after that date. It is conceded that the second note was in renewal or extension of the first and that the liability created thereby is subject to the legal operation and effect of the guaranty agreement. The bankruptcy of Pets and Things, Inc. is conceded. Weitz subsequently paid the second note and received an assignment of the guaranty agreement.

The two counts of the declaration and confession of judgment as instituted by Weitz may be summarized as follows:

Count I claimed “money payable by the [four] Defendants to the Plaintiff for money loaned Defendants by American National Bank of Maryland at the request of the [four] Defendants as evidenced by a promissory note and guarantee which has been endorsed and assigned to the Plaintiff.”
Count II alleged in substance that the note of July 2,1973, had been executed by Pets and Things, Inc., that the four defendants “among others, executed a guarantee in favor of American National Bank of Maryland whereby they unconditionally, and jointly and severally guaranteed the repayment of the indebtedness evidenced by the note dated July 2, 1973”; that the guarantors authorized confession of judgment against them, including 15% attorney’s fee in the event suit was filed; that Weitz on January 7,1974, purchased the promissory note for $60,000.00 and thereby became the assignee and holder of the July 2, 1973, promissory note; and claimed “the full amount due by said guarantors under the terms of said guaranty” plus all costs and expenses including attorney’s fees.

The trial judge, giving judgment for Weitz against Marram for $1571.43, did so because Weitz “has failed to act in good faith as required under Section 1-203 óf the Commercial Law Article.” We agree with the result reached below but for a different reason than that assigned by the trial judge.

We have pointed out supra that Weitz disclaims any right of recovery based upon his status as a holder of the promissory note of Pets and Things, Inc. to American National Bank of Maryland. (See footnote 3, supra.)

His contention on appeal is that as assignee of the guaranty agreement he acquired, by the specific provisions of that document’s paragraph 8, (see footnote 1, supra) “. . . all of the rights of his assignor in the contract of guaranty.” From that premise he argues that, “One of those rights acquired by assignment was the right to joint and several liability of the parties to the contract. By the terms of the contract, appellant could proceed against any one or more of the guarantors for the entire amount due.”

This contention wholly ignores a basic tenet of guaranty law. The Restatement of Security, § 141 at 383 (1941), in part here pertinent says:

“Where the duty of the principal to the creditor is fully satisfied, the surety to the extent that he has contributed to this satisfaction is subrogated
(d) to the rights of the creditor against co-sureties and to the creditor’s interest in security held by them, but in such case the cosurety’s personal liability is limited to the amount which will satisfy his duty to contribute his share of the principal’s default. (Emphasis added.)

In comment upon clause (d), supra, it was said at 390-91:

“i. The surety who satisfies the principals’ duty may be subrogated to the creditor’s rights not only against the principal but to the creditor’s right against cosureties and to the creditor’s interest in security held by cosureties. In the enforcement of the creditor’s right the surety’s recovery is limited to the cosurety’s contributive share.”

In 18 C.J.S. Contribution § 6 b (1939), it is said:

“Each coobligor is liable to contribute in proportion to his share of the common debt or obligation, and, in the absence of a showing of insolvency of other coobligors, may not ordinarily be held to greater liability. Thus, a joint debtor cannot be compelled wholly to reimburse another who has paid the joint debt, unless as between themselves the latter is surety.” (Emphasis added.)

In Hooper v. Hooper, 81 Md. 155, 31 A. 508 (1895), it was said at 169 [510]:

“Whilst the undertaking of a guarantor technically differs from that of a surety (Kramph v. Hats, 52 Pa. St. 525), still the contract of guaranty is the obligation of a surety. Davis v. Wells, Fargo & Co., 104 U. S. 159. Both are accessory contracts; that of a surety is in some sense conditional; that of a guarantor is strictly so.”

We hold, accordingly, that the undisputed relationship between Weitz and Marram as co-guarantors with five others, operates as a matter of law to restrict the right of Weitz to the. recovery of no more than Marram’s contributory share of the obligation owed by Pets and Things, Inc. to American National Bank. In the absence of evidence to the contrary, that contributory share is one-seventh of $60,000.00 or $8571.43, the sum found by the trial judge. The trial judge correctly allowed, as a credit upon that contributory share, the sum of $7000.00 paid by Marram to Weitz prior to trial.

The Alternative Contention

Appellant alternatively requests this Court to remand the cause for the establishment of “contribution based on the number of co-guarantors within the jurisdiction who are not insolvent.”

We have previously pointed out that such an issue was not the subject of allegation or proof in the lower court. The issue not having been raised or decided below, it is not before us. Maryland Rule 1085.

We express no opinion as to the right of appellant to relitigate at law or in equity, the issue we decline to consider in this appeal. See Maryland Rule 515; compare: Mansfield v. McReary, 497 P. 2d 654 (Oregon 1972), with Mansfield v. McReary, 501 P. 2d 69 (Oregon 1972). See also Jackson v. Cupples, 239 Md. 637, 640-41, 212 A. 2d 273, 275 (1965); Sheeler v. Holt, 161 Md. 366, 372-73, 157 A. 195, 197 (1931).

Claim for Attorney’s Fees

Paragraph 6 of the guaranty agreement in pertinent part had provided:

“6. In addition to all other liability of the Undersigned hereunder ... the Undersigned also agrees to pay to the Bank on demand all costs and expenses which may be incurred in the enforcement of the Principal Debtor’s Liabilities to Bank or the liability of the Undersigned hereunder. Such expenses shall include all counsel fees incurred by Bank before the filing of any suit to enforce this Guaranty, and in the event of suit shall include an additional 15% of Principal Debtor’s Liabilities to Bank then remaining unpaid....”

This language makes it plain that the provision has no application to counsel fees in an action between co-guarantors. The trial court properly rejected appellant’s claim for counsel fees.

Judgment affirmed.

Costs to be paid by appellant.

      . The right here asserted by Weitz is claimed under paragraph 8 of the guaranty agreement that reads as follows:
      “8. This Guaranty shall inure to the benefit of the Bank, its successors, assigns, endorsees and any Person or Persons, including any banking institution or institutions, to whom the Bank may grant any interest in the Principal Debtor’s Liabilities to Bank or any of them, and shall be binding upon the Undersigned’s executors, administrators, successors, assigns and other legal representatives.”

      . Weitz does acknowledge that Marram would be entitled to a credit for “appellant’s proportional share as co-guarantor and less the $7,000.00 already paid by appellee.” Brief of appellant, p. 19.

      . The guaranty agreement bore signatures purporting to be those of the following persons: Joel Kline, Edward P. Marram, Beverly S. Marram, Benjamin B. Weitz, Myrna Weitz, Robert V. Mackenzie and Jennie MacKenzie..

      . No explanation appears in the declaration for the failure to include as parties defendants the other individuals purporting to have executed the guaranty agreement, namely, Myrna Weitz (wife of appellant) and Joel Kline. Weitz, himself, of course, acknowledges that he executed the guaranty agreement.

      . On appeal, Weitz disclaims reliance upon his status as holder of the note, stating at page 6 of his Brief:
      “In the pleadings and argument, appellant emphasized that his cause of action was based on the assignment to him of the rights of the creditor under the contract of guaranty. Appellant did not rely on his status as a holder of the $60,000.00 note. The note was merely evidence of a debt covered by the contract of guaranty, and the assignment of that note to appellant was evidence of his full payment to discharge his obligation as a guarantor. Appellant therefore claimed that he was entitled to collect from appellee the full amount of the obligation under the contract of guaranty, inasmuch as he had acquired all of the rights of the creditor.”

      . The record shows neither allegation nor proof that any of the signatory guarantors were insolvent or without the jurisdiction of the court. Nor was there any evidence that Marram was a surety as to Weitz.


text:
    THOMAS GLENN CONNER v. STATE OF MARYLAND
    [No. 261,
    September Term, 1976.]

      Decided December 7, 1976.

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

      Robert J. Kniaz, with whom was Robert E. Ammons on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Franklin D. Henderson, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

The appellant, Thomas Glenn Conner, was charged in a single indictment with three violations of the criminal law. They were: 1st count, motor vehicle larceny; 2nd count, receiving stolen goods; and 3rd count, possession of a manufactured article whose serial number had been removed or altered.

On June 7, 1975, Corporal Jahn of the Prince George’s County Police Department was in a marked county police car routinely patrolling the Bladensburg area. A passenger in his vehicle was Thomas Blair, an assistant State’s Attorney for Prince George’s County. There apparently was no special significance to Blair’s presence in the car other than as a testimonial to his zeal beyond the call of duty.

Corporal Jahn and his passenger observed a Harley-Davidson motorcycle, which they later determined was being operated by the appellant, proceeding at a rate of speed substantially higher than that permissible in the area. It is conceded that Conner was exceeding the speed limit. The police officer stopped the appellant and requested him to produce his driver’s license and registration card. Conner gave the officer a “completely obliterated” District of Columbia driver’s license, as well as a driver’s license from Virginia, and an Alabama registration slip in the name of Gerald King. Corporal Jahn gave the registration slip to Blair who walked to the opposite side of the motorcycle and compared the numbers on the registration slip with those on the motorcycle frame and engine housing of the vehicle. These numbers were visible on the outside of the motorcycle. Blair had some experience with motorcycle identification in his position as an assistant State’s Attorney; he verified that the numbers on the frame and housing were identical, but he noticed that they had been stamped in a die not usually found on Harley-Davidson motorcycles.

Blair called this fact to Jahn’s attention whereupon Jahn checked Conner’s license status through the computer at the Motor Vehicle Administration and learned that Conner had been refused a license to operate a motor vehicle in Maryland. The appellant was requested to follow Corporal Jahn to the Hyattsville station for further investigation. At the station Corporal Bruciak, an auto theft investigator for the county police, made a further examination of the vehicle and discovered that the frame number was stamped in a standard die stamp — not the “posident” die. In addition, the number was not enclosed with a star in front of the number and a star at the end of the last number as was the practice of Harley-Davidson. There was evidence that the original number on the vehicle had been obliterated. Corporal Bruciak checked a “secret” number located near the crankcase of the vehicle and obtained from that location a different identifying number. Investigation disclosed that one Jeffrey Ashe had reported a motorcycle owned by him, bearing that number, to have been stolen. On the basis of this information the charges previously recited were placed against the appellant.

Prior to trial the appellant filed a motion to suppress all the evidence obtained as a result of the search and seizure of the motorcycle on the grounds that the search and seizure was without a warrant and without probable cause and that the appellant did not consent to the search.

A hearing was held on the motion to suppress and the motion was denied. On a later date, trial was had before a jury (Mathias, J., presiding) and the appellant was found not guilty of the larceny charged in the first count of the indictment but was found guilty of receiving stolen goods and possession of a manufactured vehicle whose serial number had been removed or altered. After a motion for new trial was denied, sentences were imposed and it is from these judgments that this appeal was filed.

I

The appellant urges six grounds for reversal. We have considered each of them and for the reasons detailed infra, we have determined that they are without merit. We shall affirm.

The first question raised by the appellant in this appeal is: Did the trial court err in denying the appellant standing to raise the issues urged by the appellant in his motion to suppress? We have in this instance a classic case of a correct result reached for an incorrect reason. The judge who heard the motion to suppress relied on the legal principles enunciated by this Court in Duncan and Smith v. State, 27 Md. App. 302, 340 A. 2d 722 (1975). He held that Conner, in possession of recently stolen goods, did not have standing to raise the issue of the alleged illegal search and seizure. Several months later the Court of Appeals had Duncan before it on certiorari.

The Court in Duncan and Smith v. State, 276 Md. 715, 351 A. 2d 144 (1976), vacated our judgment and remanded the case for a determination as to whether the search and seizure was proper. In its opinion, Judge Smith, speaking for the Court, held that when the possession of the evidence is in itself an essential element of the offense charged against the accused, the State is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. The Court neid that Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L.Ed.2d 697 (1960), was still controlling law in Maryland, and that under the circumstances the defendant had automatic standing to raise the issue of the validity of the search and seizure.

The subsequent decision of the Court of Appeals in Duncan and Smith v. State, supra, makes it obvious that the trial court’s reason for the denial of the motion to suppress was incorrect.

The appellant has consistently argued that the search and seizure of his motorcycle was illegal because of the proscriptions of the Fourth and Fourteenth Amendments to the United States Constitution.

Our appellate review is limited to the evidence that was submitted to the trial court, out of the presence of the jury, at the hearing on the motion to suppress the evidence obtained as a result of the search of the motorcycle. Glover v. State, 14 Md. App. 454, 287 A. 2d 333 (1972). We have reached the conclusion that the trial court’s denial of the motion to suppress was correct.

Cardwell v. Lewis, 417 U. S. 583, 94 S. Ct. 2464, 41 L.Ed.2d 325 (1974), was before the Supreme Court on certiorari from the United States Court of Appeals, Sixth Circuit. In a habeas corpus proceeding, the United States District Court for the Southern District of Ohio had ruled the warrantless examination of the exterior of a vehicle was a search violative of the Fourth and Fourteenth Amendments. The Sixth Circuit affirmed. The Supreme Court in a plurality opinion reversed. The case arose out of the murder of a victim who had died as a result of shotgun wounds. Tire tracks from a vehicle other than that in which the deceased’s body had been found were discovered at the scene. Casts were made of these tracks and, in addition, foreign paint was removed from the right rear fender of the vehicle in which the deceased was found. An investigation over a period of several months indicated that there was probable cause to believe Lewis was involved in the homicide. Lewis was arrested by law enforcement officers who had secured an arrest warrant for his person. After his arrest, Lewis’ car keys and a parking lot claim check were released to the police. A tow truck was dispatched to remove the car from the parking lot where it had been left by Lewis, and the car was taken to the police impoundment lot. There a technician made a cast of the right rear tire of the vehicle, and it was found to match the cast of the tire taken at the scene. In addition, paint samples scraped from Lewis’ vehicle were found to match those of the paint on the victim’s car. Both the District Court and the Sixth Circuit Court of Appeals held that the evidence obtained should have been excluded on the grounds that the scraping of the paint from the exterior of the car was an unlawful search, that it was not incident to the arrest, and that the seizure of the car could not be justified as a seizure of an instrumentality of a crime in plain view.

Mr. Justice Blackmun, writing for the plurality, said at page 589, 90:

“ ‘The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy ....’ At least since Carroll v. United States, 267 U. S. 132 (1925), the Court has recognized a distinction between the warrantless search and seizure of automobiles or other movable vehicles, on the one hand, and the search of a home or office, on the other. Generally less stringent requirements have been applied to vehicles .... ‘[T]he circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Chambers v. Maroney, 399 U. S., 50-51.’ ” (citations omitted).

At page 592 Mr. Justice Blackmun continued:

“Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments.”

The main thrust of the plurality opinion was that the Fourth Amendment was inapplicable. The Court said at pages 588-589:

“The evidence with which we are concerned is not the product of a ‘search’ that implicates traditional considerations of the owner’s privacy interest. It consisted of paint scraping from the exterior and an observation of a tread of a tire on an operative wheel. The issue, therefore, is whether the examination of an automobile’s exterior ... invades a right to privacy which the interposition of a warrant is meant to protect.” (Emphasis in original).

The plurality opinion went on to conclude that a citizen had no constitutional expectation of privacy in the exterior of an automobile. At page 591 the opinion stated:

“In the present case, nothing from the interior of the car and no personal effect, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence. With the ‘search’ limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed.”

We agree with this reasoning. We find no reasonable expectation of privacy in serial numbers stamped on a motorcycle readily visible to a cursory inspection. Under the circumstances, we find the rights guaranteed under the Fourth Amendment inapplicable. Though the ground for the denial of the motion to suppress was incorrect, the action of the Court was proper for the reasons we have stated.

II

The appellant next contends that the trial court committed reversible error in admitting Ashe’s Virginia title and warranty cards since he contends that they were the only pieces of documentary evidence which enabled the State to prove that the correct vehicle identification number (serial number) on the motorcycle was the same as the number on the vehicle which had been stolen from Ashe.

Ashe identified the title as the original Virginia title to his motorcycle. The warranty card was furnished to him at the time of purchase. These were the personal records of the owner and admissible as direct evidence. Assuming, arguendo, that it was error to admit these documents, the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967); Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976). The record reveals that the information as to the serial numbers was testified to by a factory representative of Harley-Davidson. His testimony established that the vehicle identification number found on the exterior of the seized motorcycle was not the same number assigned to the vehicle sold to Ashe. The owner, Ashe, identified the motorcycle as being his property by three different identifying marks: a dent on the front fender, markings on the rear fender caused by a loose chain, and markings on the engine block made during repairs on the motor. The testimony as to the title and the warranty card was cumulative and its admission was not prejudicial.

Ill

For convenience, we shall consider together the appellant’s third and fifth suggestions of error. In the third complaint, the appellant contends that the oral testimony of Corporal Bruciak, a police officer, concerning the manufacturer’s “secret” serial number located in a “secret” place on the motorcycle should not have been admitted under the “Best Evidence Rule.” The fifth complaint is that the trial court restricted the cross-examination of Corporal Bruciak as to the actual location of the “secret” number and that this restriction amounted to reversible error.

From our reading of the record, it is obvious that counsel for the appellant attempted, by his objections, to force the State to steer a dangerous course between Scylla and Charybdis. The appellant urged that the trial court require the State to prove the “secret” number either by bringing in the motorcycle and demonstrating its position, or at the very least requiring the production of a photograph which would show the location of the number. On cross-examination it was established that the “secret” number was in the general area of the crankcase of the vehicle, but the Court refused to permit any additional testimony which would have finally pinpointed its actual position on the motorcycle. To have required the State to comply with the appellant’s trial tactics would have been to destroy the usefulness nationwide of the “secret” number.

The rulings made by the trial court were within the bounds of its discretion. Wigmore, in discussing the Best Evidence Rule at Section 1182 (Chadbourn Rev. 1970), said:

“It is impossible to say that any settled doctrine has found favor respecting the application of the rule to material objects, not paper, bearing inscriptions in words .... The rational and practical solution is to allow the trial court in its discretion to require production of an inscribed chattel wherever it seems highly desirable in order to ascertain accurately a material fact.” (emphasis added)

Our Court of Appeals in General Builders v. MacArthur, 228 Md. 320, 327, 179 A. 2d 868, 872 (1962), indicated the flexibility to be applied to the Best Evidence Rule when it said:

“[ W]here it is not shown by the objecting party that there is a higher grade of available evidence, which, if produced, would more satisfactorily explain and establish a fact than the evidence offered, then the evidence actually produced should not be excluded on the ground that it is secondary evidence. See 32 C.J.S. Evidence, Section 780; Billeter v. Halsam Products Company, 38 N.E.2d 994 (Ill. 1942)....” (emphasis added)

Similarly, the scope of cross-examination is within the discretion of the trial judge, and grounds for reversal will occur only when there is an abuse of that discretion. Kable v. State, 17 Md. App. 16, 299 A. 2d 493 (1973); Johnson v. State, 4 Md. App. 648, 244 A. 2d 632 (1968); Holt v. State, 3 Md. App. 544, 240 A. 2d 355 (1968).

The trial court restricted cross-examination as to the exact location of the “secret” number after noting the need for confidentiality to preserve the ability of law enforcement officials to prosecute offenders for the theft of vehicles. Gurleski v. United States, 405 F. 2d 253 (5th Cir. 1968), cert. denied, 395 U. S. 981, 89 S. Ct. 2140, 23 L.Ed.2d 769 (1969), was a case in which the appellant insisted the trial court committed reversible error by not allowing him to cross-examine an FBI agent as to the location of the secret identification number.

The Court in rejecting the appellant’s contention said at page 266:

“Just as the prosecution need not generally divulge the name of an informer unless some materiality is shown, they need not reveal the location of these marks, which are a highly valuable tool to law enforcement officers in discovering and solving car thefts.”

The record reveals an even more compelling reason for finding that the trial court did not abuse its discretion in refusing to allow the cross-examination of the Corporal as to the “secret” number. The evidence as to the existence and location of the “secret” number was irrelevant to the appellant’s defense. There was already in the record evidence more than sufficient to identify the “bike” as the one owned by Ashe which had been stolen from him. It is significant that the defense offered by the appellant, through the only witness called on his behalf, was that the appellant had purchased a similar motorcycle from a man named Gerald King. Considering the nature of the “secret” number and the patent justification for its confidentiality, the appellant has failed to convince us that it would have been “highly desirable” to require the production of the motorcycle or a photograph depicting the “secret” number. It would have been even less desirable to permit cross-examination as to its location.

IV

The appellant complains that the trial court erred in permitting the owner of the vehicle to refer to a “warranty card” when testifying as to the serial number of the motorcycle. There is no merit to this contention. This is clearly an instance of present recollection revived in which the witness was permitted to use the writing to refresh his recollection so that he might testify about past events from present recollection. In Askins v. State, 13 Md. App. 702, 284 A. 2d 626 (1971), cert. denied, 264 Md. 745, this Court held that it is within the sound discretion of the trial court to permit a witness to use a memorandum or any other object as a stimulus to present memory, without restriction by rule as to authorship, guarantee of correctness, or time of making, cf. Edwards and Person v. State, 31 Md. App. 562, 358 A. 2d 590 (1976).

V

The appellant’s final ground for reversal is his contention that the assistant State’s Attorney who tried the case made impermissible comments on the defendant’s failure to testify. A reading of the record indicates that at one point the prosecuting attorney in his argument did say, “the defendant must prove to you that it wasn’t recently stolen property.” Defense counsel objected, a bench conference was held and the trial court then instructed the jury that while there was an inference of guilt raised by the possession of recently stolen property, the prosecutor’s statement that “the defendant must prove” was “completely inconsistent with the law.” The jury was instructed by the Court to disregard the statement “the defendant must prove.” The prosecuting attorney in continuing his argument corrected his terminology and stated “he must give a reasonable explanation for his possession.” The appellant contends, however, that the use of the pronoun he in connection with statements “he did not explain his possession,” and “he had no reasonable explanation for having the bike” were impermissible comments on the appellant’s failure to testify in his own behalf. No objection to the offending language was made in the trial court, nor did the appellant request any correction of the allegedly improper language even though the trial court had acted promptly in the one instance where objection was made. A failure to object and to request the Court’s correction is a waiver of the contention for appellate review. Maryland Rule 1085.

Our review of the closing argument convinces us that the appellant’s construction of the effect of the offending language is not justified. We believe Sizemore v. State, 5 Md. App. 507, 248 A. 2d 417 (1970), is dispositive of the appellant’s argument.

Judgments affirmed.

Costs to be paid by appellant.

      . Harley-Davidson stamped its vehicles at the factory with a “posident” _die not generally available to the public. Blair testified that the die on this motorcycle seemed to be the kind available in a hardware store.

      . This ruling was made in advance of trial by another trial judge who did not preside at the trial on the merits.

      . Lewis v. Cardwell, 354 F. Supp. 26 (S.D. Ohio, 1972).

      . Lewis v. Cardwell, 476 F. 2d 467 (6th Cir. 1973).

      . Mr. Justice Blackmun, the Chief Justice, Mr. Justice White and Mr. Justice Rehnquist were in the plurality. Mr. Justice Powell concurred in the result because of his belief that federal collateral review should not be available on the merits of a Fourth Amendment question. Mr. Justice Stewart delivered the dissenting opinion on behalf of the four justices who dissented.

      . See, Moylan, The Automobile Exception: What It Is and What It Is Not — A Rationale in Search of a Clearer Label, 27 Mercer L. Rev. 987 (1976).

      . Homer’s Odyssey (Latimore translation) Book 12, lines 220-270. One of the hazards of Ulysses’ journey was to traverse the narrow channel between Scylla, the six-headed monster who sat on a rock, and Charybdis, another monster who by sucking in water created a whirlpool. In avoiding the whirlpool Ulysses passed too close to Scylla who seized six of his sailors and ate them.
      Jason and his Argonauts had a somewhat more successful adventure with the clashing rocks which guarded the entrance to the Bosporus Straits. By following the advice of Phineas to send a dove between the rocks first he was able to traverse the passageway without injury to his ship or his sailors. The dove lost a few tail feathers and his dignity.