author: Lowe, J.,

text:
    NORMAN W. GLASGOW v. W. LUTHER HALL et ux.
    [No. 427,
    September Term, 1974.]

      Decided February 18, 1975.

      The cause was argued before Men chine, Lowe and Melvin, JJ.

      William A. Ehrmantraut, with whom were Donahue & Ehrmantraut on the brief, for appellant.

      Ferdinand J. Mack, with whom were Shadoan & Mack on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Norman Glasgow, an attorney whose proficiency was greatest in real estate law, has appealed to us from a jury verdict suffered by him in the sum of $142,700.00. This sum, less a remittitur of $15,071.46, represented legal, costs expended by appellees, W. Luther and Elizabeth Hall, in the collection of a promissory note from a reluctant guarantor upon the note maker’s insolvency.

The appellant participated on behalf of appellees in a somewhat involved sale of real estate in Montgomery County in which appellees took back a purchase money promissory note in the amount of $352,000.00 from a corporate buyer which succeeded the individual contract purchaser, Milton Barlow. Anticipating the non-recourse assignment by Mr. Barlow to one of his corporations, Prospect Properties, Inc. (chartered for this transaction), appellant attempted in vain to obtain Mr. Barlow’s individual endorsement on the note as surety. Mr. Barlow compromised by agreeing to endorse on behalf of The Barlow Corporation, another company of the “schizocarpous” Mr. Barlow. This was satisfactory to Doctor and Mrs. Hall, who then executed the contract of sale to which had been appended an addendum containing the following paragraph, among others:

4 “ (b) The Barlow Corporation shall guarantee by endorsement the purchase money note.”

Such endorsement was neither asked nor offered at the initial settlement on January 18,1965, or subsequently when appellees subordinated their note to Prospect’s construction loan. The absence of that endorsement has been the fulcrum of substantial litigation of which this case is the most recent.

In addition to consenting to the provision in paragraph 4 (b), quoted supra, Mr. Barlow orally agreed that he would provide The Barlow Corporation guarantee. Adding Ossa upon Pelion, appellant elicited from Mr. Barlow the following letter dated May 21, 1965 which was three days before the date of the subordination agreement:

“Dear Mr. Glasgow:
Paragraph 4 (b). It is my understanding that the Halls will produce at settlement their note to which there will be affixed an endorsement by Barlow Properties, Inc., [Barlow Corporation] guaranteeing payment.
Respectfully submitted,
PROSPECT PROPERTIES, INC. by /s/ Milton A. Barlow Milton A. Barlow President.”

When the news media publicized the insolvency of Prospect Properties, Inc. in late 1966 or early 1967, Mrs. Hall became concerned and called Mr. Glasgow. That he might more accurately respond to her inquiries, the note was obtained from her lock box and both attorney and client were dismayed to discover the absence of The Barlow Corporation endorsement, or any other for that matter.

Appellant precipitously made demand upon Milton Barlow for The Barlow Corporation’s endorsement but he refused. Mr. Barlow’s continued refusal to provide the corporate endorsement resulted in one of several suits filed by the Halls, and twice brought to the Court of Appeals, Hall v. The Barlow Corporation, 255 Md. 28 and Hall v. Barlow, 260 Md. 327. The latter case resulted in a judgment for the Halls against Milton Barlow in the full amount stipulated to have been due under the promissory note. It is ironic that it was Mr. Barlow’s promise to provide a corporate endorsement in lieu of his personal guarantee that ultimately brought about his individual liability. Perhaps even more ironic was the fact that when Mr. Barlow was finally compelled personally to pay the note the solvency of The Barlow Corporation, whose endorsement he had refused to provide, was questionable.

After the judgment was affirmed by the Court of Appeals, the Halls received prompt payment of the stipulated amount due of $322,522.56. The damages the Halls now seek from Glasgow consist of the attorney’s fees and costs of litigation expended by them to collect the balance due on the note. They total $127,628.54, represented by the final judgment below.

Appellant questions certain instructions to the jury by the trial judge and asserts as well that the judge erred in denying his motion for directed verdict. Since we reverse as a result of erroneous instructions to the jury we need only say that our review of the record satisfies us that there was sufficient evidence to permit a jury determination.

In Kendall v. Rogers, 181 Md. 606, 611, the Court of Appeals recited with approval the essential elements set forth in Md. Casualty Co. v. Price, 231 F. 397, 401 (4th Cir.) necessary to recovery in a suit against an attorney for negligence. For subsequent analysis we bisect the second of these matters of proof, in order to treat its two parts separately. The prerequisites set forth were:

“ (1) -The attorney’s employment;
(2) -his neglect -of a reasonable duty; and
(3) -that such negligence resulted in and was the proximate cause of loss to the client.”

For the purpose of submission of the case to a jury evidence adequate to support all of the elements was available. The attorney’s employment (1) was admitted but the scope of it was put in issue by the defense. Appellant claimed that the limitations of the employment raised a question of whether or not the scope of that employment (2) created a duty to obtain the endorsement. That in itself became a jury question when testimony of the experts put it at loggerheads. Assuming arguendo that there was such a duty (and that it was neglected) we found ample evidence for a jury to determine that the missing endorsement resulted from the negligence.

On the issue of whether the loss was proximately caused, appellant contended in defense that The Barlow Corporation was insolvent and its endorsement would not have assured payment of the note, even if it had been obtained. Since evidence as to solvency was submitted by both sides the issue was subject to a jury determination and well set out by the trial judge:

“In order for a client to recover damages against an attorney for negligence, a client must show that the injury proximately resulted from the attorney’s negligent act. That is really the basic point that you have to decide first and of necessity, therefore, the plaintiff must demonstrate injury, and in this case the Halls have to establish by this fair preponderance of the evidence that had they been able to bring an action on their note against the Barlow Corporation, they would have been able to recover against that corporation. That is, that the Barlow Corporation would have been financially able to satisfy the judgment obtained by the Halls against them. If you should find or if you are not convinced by this fair preponderance of affirmative evidence that they would not have been able to recover, then you should return a verdict for the defendant because, as I say, there is no real loss incurred by not having it, that guaranty on the note.”

Thus the employment, the duty and the proximate cause were all contested issues with sufficient evidence on both sides to warrant their submission to the jury. We have intentionally withheld our discussion of the “neglect” portion of the element we dimidiated because it relates directly to the cause of our reversal. We hasten to note, however, that we do not question that the evidence of neglect was sufficient to submit to a jury since it is uncontroverted that the endorsement was never obtained.

Neglect

The theory of recovery propounded by the Halls is that had appellant obtained The Barlow Corporation’s endorsement, it would have met the annual payments under the note as they came due. It follows they would not have had to pay the $127,628.54 legal fees that it cost to collect the balance due on the note.

Appellant contended on the other hand, that even assuming it was his responsibility to obtain the endorsement, it had not been proven at what point in time the failure to do so became neglect. He pointed to the case of Hall v. Barlow, supra, and noted the Court of Appeals had already interpreted not only the very contract in question here but the precise paragraph calling for The Barlow Corporation endorsement. He condensed part of the holding of that case into a prayer which he submitted to the trial judge for use as part of his instructions:

“It has been established beyond contradiction that the promise made by Milton Barlow to affix the endorsement of the Barlow Corporation on the Hall’s purchase money note survived the execution and delivery of the deed as well as the date of the execution of the subordination agreement, that is, January 1965 and May 1965 respectively. It is, therefore, well settled that the Halls did not forfeit or waive their right to have the guarantee endorsement of the Barlow Corporation by the fact that such endorsement was not affixed to the note by May 1965.”

The appellant’s theory was obviously that if Mr. Barlow’s obligation to endorse was a continuing one, appellant’s duty to obtain the endorsement likewise continued and the time by which he was bound to obtain it would be whatever the jury determined to be a reasonable time.

The judge’s denial of that request may have been partially accounted for by his explanation to the jury that it was his practice to reject all specific instructions “but to try and embody in my oral instructions . . . the general principles the parties have given to me that I believe are applicable.” However, not only did he fail to include the “general principle” asserted, his instructions set forth, as a matter of law, a principle diametrically opposite to the interpretation sought by the appellant. His instructions in that regard were:

“Now, there is some contention in the case that the contract of sale between the Halls and Mr. Barlow did not have a date on it for the execution of this so-called guaranty by the Barlow Corporation. There is no specific date in that contract, but I do advise you as a matter of law that the contract may reasonably be interpreted and should be reasonably interpreted to mean that the guaranty should he on that note prior to the time that the subordination agreement was delivered to the new lender because after that time the Halls had no means of, short of a law suit, of compelling the execution of that guaranty. Whereas, prior to the time that they signed and delivered the subordination agreement, they could have said, well, we won’t do it until we get what the contract calls for.
So that it seems to me the contract, and I instruct you, the contract should be interpreted to mean that the Barlow Corporation was obligated to place this guaranty on the note prior to the time that the subordination agreement came into effect.” [Emphasis added].

The trial judge’s mandated conclusion was actually a factual determination that was clearly the role of the jurors, not the judge. That it is the office of the judge to instruct the jury on points of law and of the jury to decide matters of fact is a maxim of ancient vintage. In a case decided before our advent as a nation, Rex v. Poole, Cas. temp. Hardw. 28, it was held that it is of the greatest consequence to the law and to the subject that these powers of the judge and jury be kept distinct, that the judge determine the law, the jury the fact; and that if ever they come to be confounded, it would prove the confusion and destruction of the law. Accord, Metropolitan Railway Co. v. Jackson, Law Rep., 3 Appeal Cases, 197; Phila., Wilm. & Balto. Railroad Co. v. Fronk, 67 Md. 339, 343.

The instruction here preempted one of the basic questions to be decided by the jury, i.e., assuming the jury found, as they must have, that it was appellant’s duty to have obtained the absent endorsement, when if at all, was it neglect for having failed to do so?

In appellees’ suit against Milton Barlow, Mr. Barlow argued an interpretation in the Court of Appeals analogous to that proclaimed by the trial judge’s instruction. The instruction here would require endorsement pursuant to clause 4 (b) prior to delivery of the subordination agreements. Mr. Barlow argued that his obligation to endorse was waived unless performed prior to the delivery of the deed. Hall v. Barlow, supra. The Court of Appeals decided to the contrary. It held that the agreement to endorse was a continuing obligation “which survived both the settlement date as well as the date of execution of the subordination agreement.” On behalf of the Court, Judge Finan reasoned:

“It is inconsistent and unreasonable to construe the contract as requiring performance of such provisions prior to delivery of the deed, merely because the descriptive term ‘conditions’ had been applied to them. If such a construction prevailed it could only mean that a substantial portion of the agreement was subject to being frustrated because of the deliberate use of inconsistent provisions in the contract. We do not believe reasonable men would so intend. In James v. Goldberg, 256 Md. 520, 527, 261 A. 2d 753 (1970), we recently had occasion to say, ‘ * * * We must determine the intentions of the parties from the language of the contract itself, not by what a party to the contract intended it to mean, or thought it meant, but ‘what a reasonable person in the position of the parties would have thought it meant.’ Chesapeake Isle, Inc. v. Rolling Hills Development Company, Inc., 248 Md. 449, 453, 237 A. 2d 1, 3 (1968).’
We think each of the provisions in the addendum must be viewed with reference to the contract as a whole, and where the contract states that ‘the provisions’ of the contract ‘shall survive the execution and delivery of the deed,’ the mere designation of a promise as a condition does not necessarily make it one. There are no doubt some provisions in the addendum which were conditions, such as the necessary rezoning; however, again, we think each provision must be interpreted while viewing the contract and addendum as a whole.
Having determined that paragraph 4 (b) of the addendum was not a condition but a contractual promise (which survived both the settlement date as well as the date of execution of the subordination agreement), whereby Milton Barlow impliedly warranted that The Barlow Corporation would endorse the purchase money note, we come to the final question as to whether Milton Barlow breached this warranty. We think that he did.” [Emphasis added], 260 Md. at 343.

The instruction in the present case that “as a matter of law . . . the contract should be interpreted to mean . . . that the endorsement should be on the note prior to the time that the subordination agreement was delivered,” was on its face contradictory to the preceding interpretation.

Apparently the trial judge had decided that the subordination agreement was an additional extra-judicial lever available to the Halls to induce Mr. Barlow’s execution of the endorsement. We do not quarrel with the reasonableness of that conclusion. The jury would have been free to find that the subordination agreement was such an inducement, and that Mr. Glasgow forfeited that inducement by not insisting on the endorsement prior to delivery of the agreement. So finding, it could well have found negligence notwithstanding the continuing legal obligation of Mr. Barlow to endorse. The error here became manifest when the trial judge removed that and similar choices from the jury’s consideration, and .elevated to a “matter of law” his own factual conclusions on those questions, as well as his view on the continuing vitality of the Barlow obligation — a view which directly contradicted the Court of Appeals. Hall v. Barlow, supra, 260 Md. 327.

There is an additional factor which should be considered in analyzing the alternatives Mr. Glasgow faced and determining whether he acted negligently. It seems apparent that if the agreement to endorse was not conditioned upon subordination, Hall v. Barlow, supra, neither was the agreement to subordinate conditioned upon the endorsement. The Halls had contracted to subordinate, just as Mr. Barlow had contracted to endorse, and thus had a continuing contractual obligation to deliver the agreement.

The trial judge should at the very least have instructed the jurors that if they found a duty by Mr. Glasgow to obtain the endorsement that duty should have been exercised with a reasonable degree of diligence.

“An attorney is liable to his client for the possession of a reasonable degree of skill in his profession as well as for the exercise of a like degree of diligence in the conduct of the transaction about which he is employed.” Watson v. Calvert Bldg. Ass’n., 91 Md. 25, 33. [Emphasis added].

The “reasonable degree of diligence” standard under the circumstances of this case was the subject of expert testimony by both sides. That testimony taken in the light of Hall v. Barlow, supra, did not foreclose the possibility that the jury may have found that Mr. Glasgow’s solicitation of the endorsement, attempted subsequent to Prospect Properties’ insolvency, was an exercise of “a reasonable degree of skill... as well as ... the exercise of a like degree of diligence in the conduct of the transaction about which he was employed.” Watson, 91 Md. at 33. Even appellees’ expert buttressed that possibility. Because the judge may not have agreed with the reasonableness of such a conclusion, he had no right to foreclose it from the jurors as one of their alternatives.

Judgment reversed; case remanded for retrial; costs to be paid by appellees.

Appendix

Appellant’s defense relied primarily upon the scope of his employment, i.e., that he had been sporadically hired to perform a series of services rather than retained to assume the total responsibility for the entire transaction. From this premise he raised the questions: whether the obtention of the endorsement was his responsibility, and if so, was not the effort refused by Mr. Barlow together with the letter of commitment from Mr. Barlow sufficient fulfillment of that responsibility. Only if these were resolved against him would he reach the questions: whether his failure to compel Mr. Barlow’s “continuing promise” to endorse constituted negligence, and if so, after what point in time did it become negligent.

The facts upon which appellant relies for the scope of employment issues are in essence a chronology of his employment. Briefly he notes:

1. First contact with the Halls was through a realtor, Thelma Edwards, to provide rezoning for the property subject to putting it on the market for sale. That service was concluded successfully and paid for by the Halls.

2. The next involvement came after the Halls rejected a proposed contract with Mr. Barlow submitted through Mrs. Edwards who again recommended Glasgow to the Halls for their protection in renegotiating the contract. It was at this phase when appellant extracted Mr. Barlow’s agreement to endorse on behalf of The Barlow Corporation. The contract of sale was executed.

3. Settlement was scheduled by Mrs. Edwards at a title insurance company office for January 5, 1965. She advised the Halls to contact appellant. They did not do so. The settlement was aborted because of a title problem. Thereafter Mrs. Edwards solicited the advice of appellant to overcome the title difficulty and proceeded on her own to do so (the obtention of a quit claim to a well easement by heirs of a former owner).

4. The settlement was rescheduled at the title company office for January 18, 1965. Again appellant was not asked by the Halls to be present. Nevertheless, Mrs. Edwards called him from the title company and requested his presence “to inspect the quit claim deed.” This interrupted his own schedule, however, since the title company was just across the street, he agreed to “slip over.” He received the quit claim deed and “check[ed] out the math” on the settlement sheet, but because he had interruped his schedule was compelled to return to his office prior to the conclusion of settlement. Before leaving he approved the Halls “sign[ing of] the papers,” asked the settlement officer to “take care of . .. some papers that were not ready,” (presumably the note and deed of trust which were to be prepared in accordance with his instructions), and advised the Halls to obtain the instruments when prepared.

5. Some months later appellant was asked to review the subordination documents pursuant to which he obtained from Mr. Barlow his post dated letter of May 21,1965, recommitting The Barlow Corporation endorsement on the note.

6. On May 27, 1965 at appellant’s office Mrs. Hall signed the subordination agreement and it, along with Mr. Barlow’s letter as well as all other documents related to the subordination were turned over to Mrs. Edwards for her to “be about getting all the signatures that were required,” including Dr. Hall’s. Mrs. Edwards obtained them one by one by going to each person involved.

7. Two days later, May 29, 1965, Mrs. Hall received the note in the mail from the title company after twice calling them for it. Pursuant to Mr. Glasgow’s instructions at the January settlement she deposited it in her safe deposit box and did not see it again until 1966 or early 1967 when the news media reported Prospect Properties’ financial problem.

Appellant contends that these facts which we have appreciably condensed relieved him of responsibility to perform the “ministerial act” of obtaining the endorsement. Appellees contend that it was his responsibility and he failed to do so at all. They add that his attempt when he called Mr. Barlow in 1966 or early 1967 at the urgency of Mrs. Hall was too late. Both parties produced expert opinions relating to the issues so raised.

      . The case was removed and tried before a jury of the Circuit Court for Frederick County.

      . Condition number six of the addendum to the contract of sale said “This contract may be assigned without personal liability to Milton Barlow.”

      . See Appendix No. 1.

      . “Ad quaestionem facti non respondent judices ad quaestionem leges non respondent juratores.” 8 Rep. 808.

      . One expert witness who had remained in the courtroom pursuant to the procedure approved in Consol. Mech. Contractors v. Ball, 263 Md. 328, was called by appellees to express his opinion on the “obligation or . . . standard required by Mr. Glasgow ....” The essence of the expert testimony was directed at whether there was a duty upon appellant to obtain the endorsement, and if so — when. Instances elicited on cross-examination follow:
      “Q Now, where in the contract of sale is it required that the promissory note bear the endorsement of The Barlow Corporation in January of 1965?
      A It stated as a condition, and it would be a continuing obligation of — the better practice would be to have it done at that settlement.
      Q Well, but —

        A — But it could have been done subsequently and still conform to the contract, if that’s what you mean.
      Q So isn’t it fair to say that there was no requirement for The Barlow Corporation to endorse that note until the subordination provisions of the contract went into effect?
      WITNESS: It could have been placed on there subsequently, yes, and still have been in conformity with the contract.
      A I think that’s correct, yes.
      Q Now, Mr. Bullard, have you examined the letter of May 21, 1965?
      A Yes, sir.
      Q And that letter commits The Barlow Corporation to endorsing the note at the time of subordination, assuming that the Halls produced the note, does it not?
      A Could I see it? — is —
      (Supplied)
      WITNESS: Yes, it does.
      MR. EHRMANTRAUT: And that created a continuing obligation to furnish the necessary endorsement on that note, isn’t that correct?
      A That’s correct.
      Q And that’s what the Court of Appeals said, isn’t it?
      A Right.”
      It is apparent therefore that the point of time beyond which a duty to obtain the endorsement would have been “neglect of [that] duty” was not established without equivocation even by appellees’ expert, that in itself would not have made it any less a question for jury. The Court of Appeals “has observed that an expert’s opinion is of no greater probative value than the soundness of his reasons given therefore will warrant.” A. H. Smith Sand and Gravel Co. v. Dep’t Water Resources, 270 Md. 652, 667.


source: Caselaw Access Project

license: Public Domain

text:
    DIANA W. PALMS et al. v. SHELL OIL COMPANY et al.
    [No. 447,
    September Term, 1974.]

      Decided February 18, 1975.

      The cause was argued before Menchine, Moore, Lowe and Melvin, JJ.

      Bernard J. Casey and Louis J. DiTrani, with whom were William H. Wilcox and Gall, Lane & Powell on the brief, for appellants.

      William H. Clark and Joel Savits, with whom was Matthew J. Kastantin on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

The parents of Valerie Anne Palms sued High Point Shell, Inc. and Shell Oil Company, on their own behalf and as Valerie’s next friend in the Circuit Court for Prince George’s County. Valerie was 18 months old when she was injured as a result of her family’s having sought service for their motor vehicle.

Mr. and Mrs. Palms were traveling through Maryland from their New Jersey home on their way to visit Mrs. Palms’ brother in Potomac, Maryland. Their automobile broke down en route and they were towed by a High Point tow truck into the High Point service station. After learning that the vehicle could not be repaired until the morrow, the Palms called for Mrs. Palms’ brother to pick them up, then headed for the waiting room and office to await his arrival.

The small room in which they waited was sparsely furnished with a desk, a chair, a vending machine, display materials and advertising signs. One such sign was a thin circular piece of sheet metal, with four prong-like projections, firmly set in a stand on the floor. It was designed to be placed within a tire with the prongs projecting inside the tire casing leaving the advertising on the circular portion exposed for viewing. The tire would serve as a large cushion-like frame for the rather sharp sheet metal of which the sign was composed. On this occasion the sign was exhibited bare, without the encircling tire, braced upright in a tire stand near the front window of the room.

The front wall of the room where the Palms waited faced out upon the service area containing the gas pumps, etc. The wall consisted primarily of a plate glass window set upon a ten inch high ledge supporting it, which on other occasions had held displays. The ledge was approximately eight inches wide (measured into the room from the window) forming a short wall-like effect beneath the window. To pass the time, Valerie and her sisters were looking out the window. Apparently to obtain a better view the 18 month old Valerie climbed on the ledge, took one or two faltering steps then fell into the sharp metal sign standing in the tire rack near the ledge.

Valerie was severely injured by a cut extending over one inch on the right side of her nose and three and one half inches over the right cheek and into the chin. The cut went almost completely through her cheek into the mouth cutting all layers of tissue except the lining of the mouth. Sixty-seven sutures were required to close the wound.

The evidence was heard by a jury; however, at the conclusion of the submission of evidence by the parties, the judge granted High Point and Shell a directed verdict. In explaining this action to the jury the judge told them:

“ This directed verdict will be granted on the theory that there was intervention of an independent factor; namely, the slipping, which was the proximate cause of the injury. And any negligence, if any, by the omission of duty or the failure to utilize the sign in the purpose intended by placing the naked insert where it was, of course, in the Court’s opinion, was not in and of itself the proximate cause of the serious consequences.”

That which the judge called “proximate cause” is more descriptively termed “responsible cause .. . which is the culpable act of a human being who is legally responsible for such act.”, State v. Hecht Company, 165 Md. 415, 421, and which comprises a breach of a duty to the injured party. See Tri-State Truck and Equipment Company, Inc. v. Stauffer, 24 Md. App. 221, citing W. Prosser, Law of Torts, § 41 at 236, 241, 242, (4th ed.) The duty here is conceded by High Point as being one of ordinary care and caution to the invitee Valerie, to see that the portion of the premises used by her was in such condition as not to imperil her. Evans v. Hot Shoppes, Inc., 223 Md. 235.

To that duty is usually added a caveat making it applicable only in the event the invitee herself exercised ordinary care. We are not burdened with any question of contributory negligence here, however, since the Court of Appeals has held that children of such tender years are incapable of exercising judgment or discretion and thus cannot be guilty of contributory negligence. Miller v. Graff, 196 Md. 609 applied the principle to a four year old child, and we have no trepidation holding it applicable to Valerie at 18 months. Would that all of the sequelae of proximate cause resolve themselves so easily.

We find ourselves faced with applying principles of negligence to two appellees; one the service station which invites the public to its premises; the other the distributor of the instrument of injury. The duties of each to Valerie differ substantially. Initially we deal with High Point, subsequently with Shell.

High Point’s Liability

Appellees claim that “ ... it was the intervening act of Valerie Palms walking along the ledge in High Point Shell’s service station, along with the inattentive care displayed by the parents to their daughter’s act, that proximately caused the accident.” We do not agree that the evidence is so conclusive that this should be determined as a matter of law. In State v. Hecht Company, 165 Md. at 421, Judge Adkins explained the application of the doctrine of an intervening cause:

“The connection between a defendant’s negligence and the plaintiff’s injury may be broken by an intervening cause. But in order to excuse the defendant, this intervening cause must be either a superseding or a responsible cause. It is a superseding cause, whether intelligent or not, if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury. It is a responsible one, if it is the culpable act of a human being, who is legally responsible for such act. The defendant’s negligence is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause. But the connection is not actually broken, if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation.”

In gauging “foreseeability” of a subsequent act matters of common knowledge are imputed to the actions, Lashley v. Dawson, 162 Md. 549, and occasional negligence which is one of the ordinary incidents of human life often must be anticipated. Restatement of Torts, 2d § 302. It is not beyond the realm of ordinary anticipation to conceive that a room to which the public is invited will be occupied by children from time to time; nor is it even beyond the common knowledge of an ordinary man that children are inquisitive, exploratory, inclined to climb and “occasionally negligent.”

The question of whether placing of the naked, sharp and potentially dangerous sign in a place designed to accommodate the public could be considered by a jury as a “substantial factor” contributing to the injuries. Holler v. Lowery, 175 Md. 149; Farley v. Yerman, 231 Md. 444; and as indicated by Hecht, supra, the foundation upon which the judge’s opinion should have rested but to which he makes no allusion in his opinion is whether or not the intervening act, without which the injury may not have occurred was foreseeable, or could reasonably have been anticipated. Holler v. Lowery, supra, at 162; State v. Hecht Company, 165 Md. at 421-422; Penn. Steel Co. v. Wilkinson, 107 Md. 574, 581.

The “intervening act” of Valerie’s fall, even if negligent, cannot act as a bar under the contributory negligence doctrine, Miller v. Graff, 196 Md. 609, Cf. Taylor v. Barlly, 216 Md. 94; nor can the onus of the parental neglect, asserted also by appellees, be imputed to the child so as to thwart that concept. Courts Art., § 10-910, formerly Md. Code, Art. 75, § 2. In Caroline v. Reicher, 269 Md. 125, the Court of Appeals through Judge Digges declined to permit a superseding cause instruction on the basis of parental negligence conceding it an “attempted end run around the provisions of Art. 75, § 2.” The Court said at 131:

“ ... if that section is to have any meaning it is only in the somewhat extraordinary situation where the parent’s negligence is such as to constitute an independent and superseding cause of the child’s injuries, that the dormant negligent act of another is discharged, Katz v. Holsinger, 264 Md. 307; Farley. v. Yerman, 231 Md. 444; Barnes v. Housing Authority, 231 Md. 147.” [Emphasis added].

Thus it would seem that if the contributory negligence of the child is not a bar, Miller, supra, and the neglect if any of the parent being far from “extraordinary” as a matter of law can neither be imputed to the child, Courts Art. § 10-910, nor serve as a superseding cause, Caroline v. Reicher, supra; Farley v. Yerman, 231 Md. at 448-450, appellees cannot by synergism combine the two to effect a preclusive result which neither alone could achieve. We think that this case classically presents the “middle ground” alluded to by Judge Digges in Reicher “where the issue of the existence of superseding negligence is properly left to the trier of fact.” As is pointed out by Professor Prosser, Law of Torts, supra, at 242:

“The plaintiff is not, however, required to prove his case beyond a reasonable doubt. He need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. Proof of what we call the relation of cause and effect, that of necessary antecedent and inevitable consequence, can be nothing more than ‘the projection of our habit of expecting certain consequents to follow certain antecedents merely because we had observed these sequences on previous occasions.’ If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.”

Finally, we are cognizant of and easily distinguish the passive-active negligence test asserted by appellees and applied in Maggitti v. Cloverland Farms Dairy, Inc., 201 Md. 528 as first propounded by Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 387 while discussing proximate cause:

“Variously stated, the universally accepted rule as to the proximate cause is that, unless an act, or omission of a duty, or both, are the direct and continuing cause of an injury, recovery will not be allowed. The negligent acts must continue through every event and occurrence, and itself be the natural and logical cause of the injury. It must be the natural and probable consequence of the negligent act, unbroken by any intervening agency, and where the negligence of any one person is merely passive, and potential, while the negligence of another is the moving and effective cause of the injury, the latter is the proximate cause and fixes the liability.”

In Bloom, in addition to the passive negligence (in that case, a double parked vehicle), the Court rested its holding on the fact that the accidents were caused by independent intervening acts which were neither induced by, nor foreseeable as, the consequence of the passively negligent act. Jubb v. Ford, 221 Md. 507, 514. We find untenable appellees’ argument that, as a matter of law, Valerie’s actions here (or similar ones by other children) unforeseeably joined with High Point’s negligence to cause injury. That exposed sharp objects in public places are dangerous, especially to immature invitees whose judgment and discretion are limited at best, is not a consequence we find beyond the realm of ordinary intelligence.

But this case is even more easily distinguishable on the basis of Bloom’s “passive” terminology. An instrument with exposed sharp edges on every side made stationary and left in a stand on the floor, knee high to an adult and head high to a child, in an area open to the public by invitation, is something more than “passive negligence.” It constitutes an overt exposure of a continuing danger. It is potential perhaps, but certainly not “passive.”

In distinguishing the passive-active philosophy of Bloom and Maggitti the Court of Appeals said in Jubb, 221 Md. at 513-514:

“An act is negligent if the actor should realize that it is likely to affect the conduct of another or third person in such manner as to create an unreasonable risk to the other .... The connection between [High Point’s] acts and omissions and the injury was stronger and more direct, and what occurred here was far more likely to have occurred as a result of what [High Point] did and did not do, and so to have been anticipated, than in those cases.”

Looking at the evidence in the light most favorable to appellants, as we are compelled to do, it is clear that “the evidence presented and the logical inferences deducible therefrom [did not] admit of but one conclusion.” Reicher, 269 Md. at 131; accord, Penn. Steel Co. v. Wilkinson, 107 Md. 574, 581. The trier of fact should have been permitted to determine whether the sign as exposed by High Point constituted negligence on the part of High Point, and if so, was it reasonably foreseeable that the resultant injury would occur.

Shell Oil Company

We have treated the question of liability exclusively as it related to High Point as distinguished from the Shell Oil Company because of the obvious distinction necessary in assessing responsibility for the injury. Shell owned the premises, leased it to High Point and supplied High Point with most, if not all, of the products sold there. Shell provided substantial advertising for the products supplied and distributed the sign upon which the child was injured.

The record contains evidence and argument on the question of Shell’s control or lack of control over High Point’s activities both supporting and negating the application of the respondeat superior doctrine. Although the judge specifically stated that he was going to rule on that question, he did not do so, apparently because of seeming lack of necessity as a result of the directed verdict. While we are given limited discretion to decide questions presented but not decided by trial courts, this “Court will not ordinarily decide any point or question which does not appear by the record to have been tried and decided by the lower court; . . . .” [Emphasis added]. Md. Rule 1085.

We note upon remand that the record is not clear whether Shell manufactured these signs as well as distributed them. Nor was there argument below addressed to the question of Shell’s liability for design defect or intended use as the supplier of the sign. Cf, Volkswagen of America v. Young, 272 Md. 201; Babylon v. Scruton, 215 Md. 299. Since this question is a novel one in Maryland we think the trial judge should have the opportunity, and we the benefit, of that nisi prius determination. For those reasons, we decline to consider these questions. If raised upon remand, the trial judge should address himself to them.

Reversed and remanded for a new trial.

Costs to be paid by appellees.

      . A foreseeability instruction on these facts would seem to have more precisely'clarified the issue for the jury than would the more technical and not so precise question of intervening cause, raised below and argued here.


text:
    STATE OF MARYLAND v. WILLIAM JAMES BECKER
    [No. 451,
    September Term, 1974.]

      Decided February 18, 1975.

      The cause was argued before Menchine, Moore, Lowe and Melvin, JJ.

      George A. Eichhom, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William E. Brannan, State’s Attorney for Baltimore County, and John Austin, Assistant State’s Attorney for Baltimore County, on the brief, for appellant.
    No appearance or brief for appellee.
   Lowe, J.,

delivered the opinion of the Court.

No constitutional right gives greater concern to this Court than the fundamental Sixth Amendment guarantee that an accused shall enjoy the right to a speedy trial. There is a delicate balance to be maintained in assuring expeditious prosecution which is not an exclusive benefit of an accused.

. . there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The. inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system.” Barker v. Wingo, 407 U. S. 514, 519.

In part to obviate defense manipulation by hyper-technical application of this right and yet assure its protective application, the Supreme Court “attempted to set out the criteria by which, the speedy trial right is to be judged.” Barker, 407 U. S. at 516. The keystone among those criteria was the question of whether the accused was prejudiced. The Court recognized that “unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.”

The case at bar provides a novel twist to that much-litigated issue. A dismissal was granted by the trial judge below and the State appealed.

Appellee was indicted by the Grand Jury of Baltimore County for automobile larceny. Since time is at the root of the issue before us we will recite the record revelations chronologically.

August 27, 1973 — Indictment filed. Capias issued.

September 7, 1973 — Motion for discovery and inspection by defendant in proper person.

September 20, 1973 — Petition for Habeas Corpus ad testificandum filed by defendant in proper person due to his federal incarceration, to obtain transportation, etc. and reciting intent to retain counsel for pre-trial motions.

September 21+, 1973 — The court alerted Public Defender by letter.

September 7, 1973 — Writ of Habeas Corpus issued.

September 27,1973 — State answered discovery motion.

October 5, 1973 — Defendant moved to dismiss indictment for lack of evidence.

October 11, 1973 — Defendant moved to inspect Grand Jury minutes.

October 12, 1973 — Petition for order for out-of-state witnesses for defendant filed by Public Defender.

October 16, 1973 — Defendant filed Motion for Bill of Particulars.

October 19, 1973 — State excepted thereto.

October 2k, 1973 — Defendant filed Motion to Suppress Identification.

October 29, 30, 1973 — Defendant’s letters to court asserting defenses and complaining of counsel and court conduct. Defendant dismissed Public Defender assigned to him.

November 6, 1973 — Correspondence expressing intent to retain private counsel.

November 12, 1973 — Court correspondence in reply — also notice of bail set.

January 31, 197k — Motion for transcript of hearing filed.

February 7, 197k — Motion to waive counsel filed.

February 13, 197k — Pre-trial motions set for hearing on March 15,1974.

February 26, 197k — State’s answers to motions to dismiss, discover, and inspect filed.

March 15, 197k — Docket entries reflect action on all motions filed. The entry regarding waiver of counsel reads as follows:

“Hearing had on Defendant Becker’s motion filed February 7, 1974; motion granted, then, at Becker’s request, motion DENIED on ground Defendant Becker now says he does not want to waive his constitutional right to counsel. ...”

April 16, 197k — Hearing on April 16, 1974 pursuant to defendant’s motion for out-of-state witnesses and evidence. The court instructed the State’s Attorney to do whatever was necessary to provide defendant with his request:

“Yes. I am going to put the burden on you [the Assistant State’s Attorney] to do the secretarial work on this. You can do the same thing, Mr. Becker, you can issue a subpoena to them. But I think you can get it if you simply write to them and explain the situation, Mr. Austin, [Assistant State’s Attorney] and tell them if they don’t provide it — tell them you are willing to pay for a copy — but if they don’t provide it, then they will be put to the trouble — we will issue an out-of-state subpoena, and require them to produce somebody here. I think when you tell them that, that you will get it.”

The court then considered defendant’s evidentiary needs for trial, item by item, recommending to the State’s Attorney the procedure to follow in assisting the accused. The case was assigned for trial on the 29th of April, which the State expressed as one reason it had “been pushing hard” and was so willing to assist Defendant at the court’s suggestion. The court deferred discussion on the out-of-state witnesses motion and marked it “hearing had on Becker’s request to subpoena out-of-state witnesses, continued to 4/24/74 at 3: P.M.” This was done because the State’s Attorney “knows what follow-up he has to do and you [Becker] know what follow-up you have to do .... By that time you ought to know whether you can get these things or not.” Defendant then did another about face on his request for counsel. In response to the court’s question after admonishing him “You’ve got to make up your mind. Do you want counsel or don’t you? The defendant responded “I want to represent myself.”

April 25, 197k — Hearing on motion to sever trial from that of a co-defendant and on request for out-of-state witnesses. The trial date was postponed partially because of the unavailability of the witnesses and partially because of the unavailability of the co-defendant who requested a postponement. The court denied the motion to sever but because of defendant’s complaint that this caused him a delay in trial the court said:

“The case will not be further postponed, Mr. Austin. On May 31st the State will proceed to trial or the Court will direct an entry of a nol pros. Understand that?
MR. AUSTIN: Yes, Your Honor.
THE COURT: That is for sure. If I am sick in bed or if I am dead or dying, if I have a broken skull or something, I am going to send a memorandum to Judge Barrett and Judge Proctor that if anything happens to me, that some other judge would be appointed to preside so that the case can go forward.
MR. BECKER: Thank you, Your Honor.
THE COURT: This man is entitled to get his case tried. Now, I recognize there have been an awful lot of pleadings going on here since he filed a motion for a speedy trial, and a lot of it has been instigated by him, which has the effect of postponing a trial, and for that reason I don’t think Mr. Becker’s constitutional rights have been injured in any way. Assign it for May 31st, it will not be taken out of the assignment, and will be tried....
THE COURT: All right. Motion for Severance denied. Motion Re Subpoenas for Out-of-State Witnesses denied, this motion having been adjusted by the State and defendant in open court. Case assigned for 5/31/74. No further postponements to be granted. Of course, if someone dies that will be a different proposition, and I will reverse myself, but I don’t want anybody to die.
MR. BECKER: Your Honor, do I make another application for the two witnesses that we agreed on for the new date, the 31st, or does that cover that, too?
THE COURT: Which two?
MR. BECKER: Mr. Sarsfeld and Mr. Gililand he said they are going to appear voluntarily.
THE COURT: He [the State’s Attorney] is going to notify them, and you also notify them of the trial date, and tell them it is your understanding that they will come voluntarily, and that you want them here, and please to respond to your correspondence, and advise you that they will be here. And if they say, no, they are not coming, let me know.
MR. BECKER: Thank you, Your Honor.”

May 28, 197k — In addition to receiving defendant’s waiver of his demand for jury trial, defendant’s request for out-of-state witnesses was reheard. When the State refused to stipulate to the testimony of the witnesses the court said the witnesses would be made available:

“THE COURT: I will afford Mr. Becker the necessary wheels, whatever they are, I don’t know, I am not going to look it up, whatever is necessary for him to issue a subpoena action, and I will grant it as to these two individuals. That is all you want now?
MR. BECKER: That is all I want.
THE COURT: If that is so, it is obvious the case cannot go forward tomorrow.
MR. BECKER: This again was a delay on his part, your Honor, on the State’s part.
THE COURT: I understand that. But you want them here.
MR. BECKER: Yes.
THE COURT: So the delay has been given for your benefit. You can’t get a subpoena in their hands —
MR. BECKER: He’s in Washington, D.C., and Mr. Gililand is in the Federal Penitentiary in Lewisburg, Pennsylvania.
THE COURT: You can’t get a subpoena in their hands today, that is obvious. But I will assign the case for trial — any other pretrial motions?
THE COURT: Do you need an order for issuance of subpoenas for these two out-of-State witnesses? MR. AUSTIN: I will prepare it, your Honor.
THE COURT: Prepare an order, and get Mr. Becker — you have been very cooperative, Mr. Austin — and give Mr. Becker further cooperation to get the names and addresses, if you don’t already have them, and see to it that a subpoena, the necessary order is signed, and a subpoena is issued. How long will it take non-jury?
THE COURT: Why don’t the two of you go back in the State’s Attorney’s office and get these gentlemen separately on the phone, and find out when they are available, and assign it for a time when they can be here? And if necessary I will recess this jury case, say, from a Tuesday to a Thursday or a Monday to Wednesday, or something like that, and fit this in so we can get rid of it; I want to get rid of it, you want to get rid of it.
MR. BECKER: One other question, your Honor. Again, Mr. Austin indicated to me again this morning that Mr. Lano will appear voluntarily. Do you remember, we talked about the F.B.I., and you said notify the local office here? Again I ask you the same question.
MR. AUSTIN: To my knowledge, he said as long as we give him sufficient notice he would be here.
THE COURT: Talk to him today on the phone, and say, look, we appreciate your willingness to appear voluntarily, don’t get mad with us, we are going to issue you a subpoena anyway.”

June 3, 197k — Defendant filed Motion to Dismiss Indictments for Lack of Prosecution.

June 7, 197k — The hearing on Motion to Dismiss Indictments for Lack of Prosecution was treated by the court as being a motion to dismiss on grounds of lack of speedy trial. The motion was granted by the court which placed the blame for delay on the State seemingly because the State had not produced the defendant’s out-of-state witnesses:

“THE COURT: The case was set for February 7th, and it was postponed at the State’s request. We had a hearing before me on April 16th relative to getting these out-of-state witnesses present for trial on the 29th, and at the hearing I told you that you would have until April 24th to notify Mr. Becker’s out-of-state witnesses so that the trial could go forward on April 29th. And there was a further hearing on April 25th, at which time the case was postponed because, in my opinion because of the lack of vigor and industry on the part of the State in getting this case ready for trial, it was postponed until May 31st. Implicit in all this conversation relative, for example, to Mr. Sarsfeld, on page 7: ‘Mr. Austin: He is in Washington, D. C., with the Federal Energy Office, your Honor. I can call him back and tell him we would like to have him here, and it would be up to Mr. Becker to discuss his testimony with him.’ ‘The Court: Call him, and arrange to have him here. That takes care of that.’ At that time on page 15 of the transcript the May 31st date was postponed because of your request, because you said Mr. Corbin was in custody out in Missouri, and you couldn’t get him here. You could have gotten him here, you have just told me you could have, you answered my question directly, yes.
MR. AUSTIN: Your Honor, as I recall, if I may be heard briefly, your Honor came into criminal jury with the April term of court. As soon as your Honor got into criminal jury I contacted your office, got a trial date of the 29th.
THE COURT: We had preliminary hearings so that it could go forward on the 29th.
MR. AUSTIN: Your Honor, the interstate agreement on detainers gives the prisoner whose ' custody is requested 30 days to object. And acting as fast as I could, there was not 30 days between the time we requested him and the time of the trial; although we had thought that perhaps —
THE COURT: Wait a minute, Mr. Austin. Don’t quibble on this. We had a hearing, and I assigned this case for hearing on April 29th, and you could have notified him any time after that case was assigned for hearing on April 29th. Thereafter it was postponed until May 31st. So you had well more than 30 days.
MR. AUSTIN: Not prior to the 29th trial date, your Honor.
THE COURT: You had plenty of time prior to the May 31st trial date.
MR. AUSTIN: He was here for the 31st trial date, your Honor. As you recall, Mr. Goldberg could not be present, and —
THE COURT: But the State wouldn’t go forward as to this man without going forward as to Corbin. I don’t care about Corbin, he is not before me. This

man is entitled to a speedy trial. And I told you at that time, and I will read it. ‘The case will not be further postponed, Mr. Austin. On May 31st the State will proceed to trial or the court will direct an entry of a nol pros. Understand that? Mr. Austin: Yes, your Honor. The Court: That is for sure. If I am sick in bed or if I am dead or dying, if I have a broken skull or something, I am going to send a memorandum to Judge Barrett and Judge Proctor that if anything happens to me, that some other judge would be appointed to preside so that the case can go forward.’ It is now June 7th, and Mr. Becker has made a motion for a dismissal of the charges against him.

MR. AUSTIN: May I be heard briefly?
THE COURT: You have been heard, I heard you until you sat down, Mr. Austin; you can’t get five or six bites at the same apple. Sit down, Mr. Austin. You have a right to take an appeal from my ruling. The Defendant has made a motion to dismiss the indictments for lack of prosecution. There eventually has to be a time when under the law and under the decisions of the Supreme Court a person who is asking to be tried has a right to be tried or have the charges dismissed. That time has been reached in this case. The motion will be granted. You can still go forward as to the co-defendant. The entry will read —
MR. BECKER: I think he’s left the courtroom, your Honor.
THE COURT: What? Tell him to come back here, Mr. Tormino.
MR. SEIBERT: He thought you were finished, your Honor.
MR. BECKER: Your Honor, on behalf of myself and my family I’d like to thank you.
THE COURT: Don’t thank me, I am simply doing the duty that is imposed upon me by my oath of office.
MR. BECKER: Thank you, your Honor.
THE COURT: The docket entry will read: Defendant Becker’s motion to dismiss granted. Indictment dismissed as to the Defendant Becker.”

The judge was correct when he advised the State that it had a right to appeal. State v. Hunter, 10 Md. App. 300, 307. We do not agree as readily that appellee was denied a right to a speedy trial.

Constitutional Dimension and Length of Delay

In order to decide whether or not appellee has been denied a speedy trial we must first determine whether there has been any true “delay” in the constitutional sense. State v. Jones, 18 Md. App. 11. That case points out at 22-23:

“If, upon preliminary examination, we may determine that there has been no ‘delay’ of ‘constitutional dimension’ — if the claim of ‘speedy trial’ denial is clearly frivolous — if the passage of time is patently not inordinate — we are relieved of all necessity to make further analysis. If this threshold of ‘constitutional dimension’ has not been crossed, there is no need for the delicate weighing of social values in order ‘to balance the right of the individual to obtain a speedy trial against the right of society to punish those who are properly shown to have committed a crime against it.’ There is no need to look to the subtle interaction of the four factors: (1) length of delay, (2) reason for delay, (3) prejudice to the accused, and (4) assertion of the right by the accused. State v. Lawless, [13 Md. App. 220,] 229-232.”

The time to be counted runs from the time “the putative defendant in some way becomes an ‘accused’ . . . .” United States v. Marion, 404 U. S. 307, 313; Jones, 18 Md. App. at 16. For appellee this came as a result of his indictment on August 27, 1973. The only trial dates shown in the record were to have been April 29, 1974 and then May 31, 1974. Neither eventuated because the defendant’s witnesses were not made available and the State did not bring a co-defendant from a Missouri prison in time.

Whether we view the period as nine and a half months or measure it from when trial was first set makes some, but little, difference. While we recognize that the Legislature, attempting to expedite criminal trials, has given us guidance by establishing six months from arraignment as a benchmark, Md. Code, Art. 27, § 591, that is but a single factor to consider in resolving the question of denial of a speedy trial. Young v. State, 15 Md. App. 707; Hunter v. State, 16 Md. App. 306. On more than a dozen occasions we have held as insubstantial delays from four months in Britton v. State, 10 Md. App. 70, to twenty-three months in State v. Williams, 6 Md. App. 5. The length of the delay is simply “. . . a triggering mechanism .... [T]he length . . . that will provoke ... an inquiry is necessarily dependent upon the peculiar circumstances of the case. . . . [T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U. S. at 530-531.

Nine and one-half months standing alone may get us over the threshold of constitutional dimension but is, alone hardly “substantial” unless intentional or at least the result of utter disregard or irresponsible neglect on the part of the State. It is, however, sufficient to persuade us to look deeper in the cause.

The Reason for Delay

In seeking the reasons for delay we again find in Barker that different weights should be assigned to different reasons, the heaviest being ascribed to deliberate attempts to delay whether to hamper the defense or to gain a tactical advantage. No such intentional delay is asserted. To the contrary, the record negates any such inference. “A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, 407 U. S. at 531. It is within the latter category the State finds itself, at least as to the more suspect period after hearing April 25, 1974 when the State admitted it would be unable to produce the co-defendant for trial on the date set. In looking to the record we find that the accused filed over a dozen pro se petitions and demands which required three hearings. Had these issues not been resolved pre-trial, the accused could properly have complained about their delayed resolution and undoubtedly would have done so. These motions, while proper, placed an additional burden on a court already overtaxed by numerous and complex cases. In our overburdened judicial system defendants regrettably must upon occasion forego expedition in return for added attention. Even if we agree with the trial court’s conclusion that there was a degree of dilatoriness on the part of the State in acquiring the defendant’s witnesses (notwithstanding the State’s expressed reason for agreeing to do so in order to attempt to meet the assigned trial date) appellant’s claim would still not rise above the “more neutral reason” which is “weighed less heavily . . . but nevertheless should be considered.” Barker, supra.

A great portion of the delay, even after April 16,1974, (the first hearing on appellee’s request to subpoena out-of-state witnesses) was directly attributable to appellee and could largely have been averted had he not declined assistance of counsel. Appellee wanted certain witnesses summonsed for his trial. The record indicates that the prosecutor agreed to aid appellee in securing the attendance of these witnesses in order to expedite proceedings. The judge who dismissed the indictment had denied Mr. Becker’s request to summons them in the belief that both appellee and the State, under his direction had either agreed that certain of the witnesses would not be necessary or that the witnesses would come without a subpoena. As it turned out, and as the prosecutor pointed out at the June 7, 1974 hearing, at least two of the witnesses needed subpoenas. There was no evidence of any culpable attempt to stall the trial on the part of the prosecutor, especially since he was attempting to help appellee who did not have counsel and who had waived his right to counsel. This we think is at the heart of the problem.

Appellee had every right to waive counsel; however, the judge was wrong in then directing the State to assist the man it was prosecuting. The State in turn was equally in error by offering — or even accepting — that responsibility. The record indicates that both judge and prosecution were tactically outsmarted by appellee who step by step led them to the course they eventually pursued.

The expressed reason for the delay at the final hearing was the absence of defendant’s witnesses. We think the appellee must equally share responsibility with the State whose wrongful conduct was no 'more than ineffective, but well-intentioned aid.

The Assertion of the Right

The “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U. S. at 532. At no time does the record disclose that appellee demanded or requested an early trial until his objection to postponement of the April 29, 1974 date. This belated lament which came in the form of oral argument was asserted to reinforce a motion for severance. Encouraged by the “come hell or high water” remarks of the trial judge, supra, four days prior to the June 7,1974 hearing he filed the Motion to Dismiss the Indictment for Lack of Conviction which was granted. While the right was not waived, it could hardly be said that it was asserted either.

Substantial Delay

We must now consider whether appellee has demonstrated “substantial delay.” If so, there was created a rebuttable presumption of prejudice which would have shifted the burden of going forward with the evidence to the State. Lawless, 13 Md. App. at 232-233. To determine the “quantitative and qualitative degree of delay” which will give rise to the presumption of prejudice causing the burden to shift, we have noted that the factors used in the overall Barker v. Wingo, weighing process are the same ingredients which must be weighed and analyzed.

Our preceding analysis indicated that there was no inordinate length of delay, that the reasons for it were neutralized by the State’s submission to the judge’s erroneous direction to acquire the accused’s witnesses, and that the right was belatedly asserted. Appellee makes no allegation that the reasons for delay by the State were deliberate. Additionally, our independent review reflects “no likelihood of prejudice to the person of the appellee and no demonstrated prejudice to [his] defense.” Jones, 18 Md. App. at 28. This adds up to a failure to show either the “quantitative or qualitative degree of delay [which] will give rise to a rebuttable presumption of prejudice and will shift the burden of going forward with the evidence from the accused to the State.” Lawless, 13 Md. App. at 233. Having failed to shift the burden to the State, there rests upon the accused, as the moving party, the burden of demonstrating actual prejudice.

At this juncture, however, the trial judge incorrectly treated the burden as having shifted and called upon the State to justify the delay. Even were we to assume, arguendo, that the State was burdened to explain its actions, we think it adequately did so:

“Your Honor, not having had the transcripts before me, I forget exactly which hearing it was Mr. Becker raised these same points previously about his having been denied a speedy trial. At that time I argued to the court that Mr. Becker could have been tried last December; he came in, the witnesses were here, we were ready to go to trial, but he prayed a jury trial at that time. Since then, of course, he has changed attorneys, he has gotten out on parole, he has asked the witnesses be summonsed, all of which I would think would have worked to his benefit and not to his detriment. I would think the delay in bringing him to trial had not hurt him but benefited him in this regard. Even if there is some prejudice, it has not been brought on by any acts of lack of diligence on the part of the State, rather by Mr. Becker’s own acts, especially in view of the fact that he has now elected to proceed before the court without the aid of a jury, which he could have done on December 7th.”

Whether or not the delay had reached substantial proportions, after hearing the State’s proffered justification the court never called upon the accused to meet his burden of showing actual prejudice. Instead, it continued to shelter him with the judicial mantle. Despite the absence of an affirmative showing, we turn to the record for indications of prejudice.

Prejudice to Appellee

Deprivation of the right to speedy trial may adversely affect three primary interests of a defendant. Barker, 407 U. S. at 532. Here only one of these interests we find to have been adversely affected and then we know not for which period.

The first interest affected is prevention of oppressive pre-trial incarceration. Although initially confined for other causes in federal prison, it may be inferred from the record that the detainer for this case suspended appellee’s eligibility for parole notwithstanding bail was set for this offense. Beyond that inference from unexplained papers filed in the record, we have no evidence of the period during which he was so detained.

The second interest is minimization of the accused’s anxiety and concern. We find nothing in the record to indicate anxiety and concern beyond that which might be expected. Each day following an indictment must hang heavily over any accused person. In this instance it did not appear so discomforting as to distinguish it from the apprehension inherent in any case of like nature.

The third interest is the most serious and is the core of prejudice, viz., “to limit the possibility that the defense will be impaired.” Barker, 407 U. S. at 532. This element of prejudice certainly cannot be relied upon by appellee.

We note in passing that it is not always essential to affirmatively demonstrate prejudice, since it is but one of the factors to be considered; nor is prejudice confined to one’s inability to defend, Moore v. Arizona, 414 U. S. 25. In the absence of appellee’s proof of prejudice inferable from the mere length of delay or from the reasons for the delay, together with his failure to assert his right, we are left only the possible presence of actual prejudice. As we have noted, appellee has failed to demonstrate it.

Having adhered to the admonition of the Supreme Court in Barker, to consider each case on ad hoc basis in light of the criteria espoused, we have carefully reviewed the record, we have analyzed that which we have reviewed, and we reverse the decision of the trial court. Indeed we find appellee barely negotiated the initial threshold of “constitutional dimension,” if indeed he did so. Concededly, it may have been the very paternalism we sought to avoid, rather than the factual posture of his case, which compelled us to extend the review prescribed by Barker. We have done so nonetheless and can find nothing to justify the dismissal. If there were additional evidence or issues not brought to our attention because of absence of counsel, appellee is solely at fault. The society that provided him counsel if he chose, has a right to expect absolute impartiality on the bench and vigorous advocacy on its behalf.

Order dismissing indictment reversed and case remanded for further proceedings.

Cost to be paid by appellee.

      . While distinguishing the speedy trial right from other constitutional rights, Mr. Justice Powell recognized “that deprivation of the right may work to the accused’s advantage. Delay is not an uncommon defense tactic.” Barker v. Wingo, 407 U. S. at 521.

      . The issuance of the writ filed subsequent to the petition was dated as issued and filed 13 days before the petition.

      . The record discloses no motion for speedy trial up to this time. The only motion aimed at that result is the June 3,1974 motion to dismiss.

      . There is nothing in the record or docket entries to indicate either that the case was set or postponed.

      . “MR. AUSTIN: . . . Because of the time period involved with the interstate agreement on detainers, it wasn’t possible to physically get him [the co-defendant] here.
      THE COURT: It could have been possible if you had acted sooner, couldn’t it? Answer yes or no.
      MR. AUSTIN: Yes.”

      . We are unable to find in the record any indication that the trial judge conducted the waiver inquiry required by Md. Rule 719 c. prior to permitting defendant’s waiver of counsel. On remand, the proper inquiry .should be conducted and the record should so indicate.

      . Appellee argued that he had “filed for a speedy trial” in August of 1973 (he was not indicted until August 27, 1973), however, there is nothing in the record to support the assertion made during argument on April 25, 1974.
      “MR. AUSTIN: This man has waived his right to a speedy trial, Your Honor,' by his activities in the past. We were ready t() go to trial once béfore, and this man prayed a jury trial, and he has since then delayed it by his, — any delay that has been occasioned in this case has not been the result of the State. This is the first postponement requested on behalf of the State.
      MR. BECKER: Your Honor, back on October 29th, 1973,1 note the date I was brought here before Judge Cicone, in August I filed for a speedy trial, and I had done everything, even under the Gibbon? decision from the Supreme Court, I was brought here and housed in your jail, to propose a defense —”


author: Thompson, J.,

text:
    GILBERT GLENFORD DAVIS a/k/a Jimmie Johnson a/k/a James Johnson v. STATE OF MARYLAND
    [No. 458,
    September Term, 1974.]

      Decided February 18, 1975.

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

      Geraldine K. Sweeney, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender and Frank Sacks, Assistant Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and William Monfried, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The Grand Jury of Baltimore City indicted the appellant for escape under the names Gilbert Glenford Davis, a/k/a Jimmie Johnson, a/k/a James-Johnson. After a jury trial in the Criminal Court of Baltimore which began on January 15, 1974, appellant was convicted and sentenced to a term of three years consecutive to the sentence he was then serving. He contends on appeal that the trial judge erred in failing to dismiss the indictment with prejudice under the provisions of Md. Code, Art. 27, § 616S, which require trial within 120 days of a prisoner’s request in an intrastate detainer situation.

The record shows that on August 9, 1973, the Clerk’s Office of the Criminal Court of Baltimore and the State’s Attorney’s Office for Baltimore City received by certified mail (1) “Notice of Untried Indictments, Informations or Complaints and of Right to Request Disposition”; (2) “Inmate’s Notice of Imprisonment and Request for Disposition of Indictments, Informations or Complaints”; and (3) A “Certificate of Inmate Status” as required by the provisions of Md. Code, Art. 27, § 616S (a). All of these papers were on appropriate forms used by the House of Correction and requested that the appellant’s indictment for escape be finally disposed of. As shown above, the trial on the escape indictment did not begin within 120 days after the notices were received by the appropriate court and State’s Attorney. We will therefore reverse the judgment of conviction and direct the indictment be dismissed with prejudice in accordance with § 616S (c).

The Court of Appeals in the recent case of State v. Barnes, 273 Md. 195, 328 A. 2d 737 (1974) took the occasion to review the statute involved herein in detail and succinctly pointed out its purposes at 743-744:

“It has long been recognized that detainers for untried charges — whether interstate or intrastate in nature — may result in ‘undue and oppressive incarceration.’ Undue delay in the disposition of such detainers has been recognized as minimizing the possibility that a defendant incarcerated might receive a sentence at least partially concurrent with the term he is serving and that under the procedures widely practiced, the duration of his imprisonment may be increased and the conditions under which his confinement must be served greatly worsened because of the pendency of an additional charge against him and the potentiality of additional punishment. Similarly, it has been recognized that a long delay in the trial of the detainer charge may impair the ability of the accused to defend himself since he is often in a prison far removed from the place where the added offense allegedly took place, resulting in an impairment of his ability to keep apprised of the whereabouts of witnesses, and isolates him from the ready availability of the assistance of his counsel. It has even been stated that the pendency of such a detainer constitutes a serious impediment to the prisoner’s ability to take maximum advantage of the institutional opportunities for rehabilitation. See Smith v. Hooey, 393 U. S. 374, 378-380, 89 S. Ct. 575, 21 L.Ed.2d 607 (1969). See also Note, 77 Yale L. J. 767, 769-771 (1968); Note 18 Rutgers L. Rev. 828, 833-834 (1964). In some jurisdictions the pendency of such a detainer precludes the prisoner from eligibility for parole consideration; in others it excludes him from placement on work-release programs, and it has been known, because of the potentiality of escape, to cause the prisoner to be confined under more strict and harsh security measures than might otherwise be applicable to his case, except for the detainer on file.
“In an effort to ameliorate such conditions, which were found to ‘produce uncertainties which obstruct programs of prisoner treatment and rehabilitation’ and in order ‘to encourage the expeditious and orderly disposition of such charges,’ the General Assembly, by Ch. 627 of the Acts of 1965, enacted the Interstate Agreement on Detainer Act (codified as Art. 27, §§ 616A-616R) and complementary thereto, at the same session by Ch. 628, enacted our own version of an Intrastate Detainer Act (codified as Art. 27, § 616S).” (Footnotes omitted).

In that case, the Court determined that the Intrastate Detainer Act should be liberally construed to accomplish its purposes and affirmed the holding of this Court to that effect in Barnes v. State, 20 Md. App. 262, 315 A. 2d 117 (1974).

In light of the Court of Appeals’ decision in Barnes, it is our holding in the instant case that as soon as the appropriate court and State’s Attorney’s Office have received notices of the prisoner’s request for disposition in proper form, the 120 day period within which the case must be tried begins to run and the indictment must be dismissed with prejudice when the trial is not begun within the 120 days except where the record shows that a necessary or reasonable continuance has been granted by the court in compliance with § 616S (a) of the statute.

The State has advanced four arguments in support of its contention that the statutory remedy of § 616S (c) should not be invoked.

The first contention is that the case was properly continued under the statute on two occasions in September and November of 1973 and therefore under the provisions of Art. 27, § 616S dismissal was inappropriate. The statute provides as follows:

“(a) Request by prisoner; statement from warden having custody. — Whenever the Department of Correction receives a detainer against any prisoner serving a sentence in any correctional institution under the jurisdiction of the Department or whenever any county or city jail receives a detainer against any prisoner serving a sentence in the county or city jail any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State’s Attorney of the City of Baltimore or of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be filed within 30 days of the prisoner’s notification of any untried indictment, information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.
“(b) Duty to inform prisoner. — The warden, superintendent or county or city law enforcement officer having custody of the prisoner shall inform the prisoner within 15 days in writing of the source and contents of any untried indictment, information, or complaint against said prisoner concerning which the warden, superintendent or county or city law enforcement officer has knowledge, and of the prisoner’s right to make a request for final disposition thereof.
“(c) Dismissal when action not commenced. — If action is not commenced on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above, the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dismissing the untried indictment with prejudice.”

It is the State’s argument that the trial judge correctly found that the case was properly continued on each of the above occasions because the State showed that a courtroom was not available and because there was confusion in the State’s Attorney’s Office because of the appellant’s use of two names, i.e., Gilbert Davis and James or Jimmie Johnson. The finding that the courtroom was unavailable was based upon the unsworn testimony of the Assistant State’s Attorney in argument on the appellant’s motion. While we do not at this time pass upon the unavailability of a courtroom as a proper reason to continue a case, it is apparent that the bare statement of a State’s Attorney in argument on a motion to dismiss is not adequate to show that such a situation did in fact exist. Dennett v. State, 19 Md. App. 376, 383-384, 311 A. 2d 437 (1973), cert, denied, 3/18/74, 271 Md. 734. The record indicates neither appellant nor his attorney was present when the continuances were granted as required by the statute. Thus the continuances, for this reason alone, cannot be invoked to avoid the application of the statute.

The confusion in names requires some explanation. The trial record shows that the appellant had been indicted under the name of Jimmie Johnson for a narcotics violation and that he had escaped from the Baltimore City Jail while waiting trial on that charge. When apprehended, he produced a driver’s license and registration card bearing the name of Gilbert Davis. The police officer to whom he presented the documents was not deceived. The officer said he knew the appellant’s correct name was Jimmie Johnson and that this was confirmed by fingerprints. The officer had applied for a warrant in the name of Jimmie Johnson but for some unknown reason the District Judge had issued the warrant under the name of Gilbert Davis, a/k/a Jimmie Johnson. To complete the scenario, the indictment was drawn up in all of the names recited above: Gilbert Davis, a/k/a Jimmie Johnson, a/k/a James Johnson. It appears that the appellant wrote several letters to the Chief Judge of the Supreme Bench of Baltimore and to the State’s Attorney’s Office requesting a speedy trial of his escape indictment. In those letters appellant used his real name, Jimmie Johnson. In the official notice invoking the Intrastate Detainer Act prepared by the warden the name Jimmie Johnson was also given, perhaps because that was the name under which appellant was imprisoned for the narcotic charge. In a letter to the State’s Attorney’s Office regarding the date of his trial, appellant used the names Davis and Jimmie Johnson. In any event the record clearly shows that the clerk of the Criminal Court wrote the correct indictment number on his copy of the official notice sent by and on behalf of the appellant and that at least one law clerk in the State’s Attorney’s Office was aware that the appellant was indicted under the several names. In a letter received by the appellant after he had signed the forms invoking the Intrastate Detainer Act, the aforementioned law clerk directed the appellant to correspond with the State’s Attorney’s Office in the name of Davis. We are unable to see how the confusion over the appellant’s name justified a continuance in the instant case. There is no evidence at all that the appellant intended to confuse the appropriate authorities in the procedure to invoke his rights under the act. More importantly, the record indicates that the State’s confusion, if any, resulting from the several names, was minimal and self-inflicted in that the Clerk of the Criminal Court was able to relate the appellant’s request to the appropriate indictment and at least one member of the State’s Attorney’s Office knew the indictment was in all three names and that the appellant at times used one of those names other than Davis. Indeed it seems appropriate and not unduly burdensome to require that where an individual is indicted under several names, a cross-index be kept for all the names so that cases can proceed with dispatch no matter under which of the names a communication with reference to the indictment may be received.

We hasten to add that our decision today should in no way be interpreted to allow a prisoner by the use of aliases and fictitious names to deliberately attempt to obfuscate the process of obtaining a speedy trial under the act in the hopes that the 120 day rule will be violated. We hold that in an appropriate case, any intentional or even grossly negligent use of several names by a prisoner in communicating his request to the appropriate authorities would be sufficient cause to deny him the benefit of the Intrastate Act. No such inferences can be drawn in the instant case.

The State next contends that the indictment should not be dismissed because the record shows that either the warden did not give notice to appellant within fifteen days as required by the statute, § 616S (b) or that the appellant did not make his request in thirty days as required by § 616S (a). The record in this respect is not entirely clear. The record shows the detainer was placed against the appellant on May 25, 1973. The appellant testified he was notified of the detainer at that time. He later testified that it was not until June that he was given the proper written notice and that his requests were not typed up until July 26 because of the illness of the typist at the House of Correction. It was on this basis that the trial judge found as fact that either the warden had failed in his duty to notify the prisoner within fifteen days or that the prisoner had not filed his notice with the warden within thirty days as required by the statute. Regardless of the factual situation, we hold that the fifteen and thirty day time periods indicated in the statute are directory rather than mandatory. We note that although a State’s Attorney can at any time proceed on the trial of an indictment against a prisoner incarcerated in Maryland, he can proceed on a trial with reference to a prisoner incarcerated in another State only with the consent of appropriate authorities in that State. Yet the statute governing Interstate Detainers, Md. Code, Art. 27, § 616D, gives no time limit on such notices with reference to a prisoner incarcerated out of State. We think that in incorporating such provisions in the statute which applies to Maryland officials and prisoners, the legislature was simply directing those officials and prisoners to proceed with due diligence rather than indicating that those time limits were crucial.

Our conclusion that the time periods are directory rather than mandatory is supported by the rule of statutory construction that provides that the use of the words “shall” or “may” are not in and of themselves controlling in determining whether a statute is mandatory or directory and that the intent of the legislature as gathered from the nature of the subject matter and the purposes to be accomplished is the controlling factor. Director v. Cash, 269 Md. 331, 344, 305 A. 2d 833 (1973); Hitchins v. City of Cumberland, 215 Md. 315, 323, 138 A. 2d 359 (1958). More importantly in this regard it has been held that where, as in the instant case, a statute provides no penalty for failure to act within the time period prescribed, the time period is directory. Director v. Cask, supra at 345. See Snyder v. Cearfoss, 186 Md. 360, 370, 46 A. 2d 607 (1946). Other than the sanction of dismissal for failure to prosecute within 120 days, § 616S provides no penalties for non-compliance with its stated time periods. In King v. State, 5 Md. App. 652, 662, 249 A. 2d 468 (1969) this Court discussed that fact and stated:

DAVIS v. STATE Opinion of the Court. [24 Md. App.

“Thus the Act assumes that all parties concerned will do what its provisions call upon them to do but it provides a sanction for failure to do so in only one instance, i.e., when the prisoner is not brought to trial within the time limitation after his request and the warden’s statement have been delivered to the appropriate State’s attorney and court. But the court does not lose jurisdiction and the indictment still has force and effect and shall not be dismissed with prejudice for any other failure to comply with the provisions, not only on the part of the prisoner but also on the part of the State’s authorities.”

The State argues that this Court arrived at a contrary decision in King v. State, supra. In State v. Barnes, supra, the Court quoted at length from King as follows:

“ ‘The evidence did not establish that the appellant made request for final disposition of the untried complaints within 30 days of notification of them. The Act was not available to the appellant for that reason. Even on an assumption that the letter of 15 September 1967 was such request, and that it was filed on time, it was not accompanied by a statement from the warden containing the information required by the Act. The Act was not available to the appellant for that reason. And even if the evidence before the court be considered as showing that the appellant was precluded from filing the request as required because the warden, although he had knowledge, did not inform the appellant of the source and contents of the untried complaints and of the appellant’s right to request final disposition thereof, [Footnote omitted] no relief was available to the appellant under the Act. And even had the evidence proved that the appellant made request as required but that the warden failed to deliver it, accompanied by the statement, to the appropriate State’s attorney and the court, no relief was available to the appellant under the Act. In short, for reasons we have hereinbefore stated, since it was not established that the appellant and the prison officials did all that they were called upon to do by the provisions of the Act, the Act was not invoked, no matter where the fault lay.’ (Emphasis supplied.) 5 Md. App. at 665-66, 249 A. 2d at 476-77.” State v. Barnes, 273 Md. 195, 328 A. 2d at 742-743.

We think by its emphasis on the last sentence in the above quote and by its use of the express language, “we thus see no incompatability between the holdings in King v. State, supra and the results reached in this respect by the Court of Special Appeals [in Barnes v. State, supra], 273 Md. 195, 328 A. 2d at 745, the Court of Appeals indicated that the holding in King was limited to those situations in which there has been an utter disregard for the statutory procedure and that King therefore should not be construed to require a strict construction of § 616S. In addition, the Court went on to point out that neither Gibson v. State, 17 Md. App. 246, 300 A. 2d 692 (1973) nor Carter v. State, 15 Md. App. 242, 289 A. 2d 837, cert, denied, 266 Md. 734 (1972) nor Davidson v. State, 18 Md. App. 61, 305 A. 2d 474, cert, denied, 269 Md. 757 (1973) was authority for strictly construing the statute. In Gibson and Carter we refused to invoke the statute where no detainer had been filed. In Davidson we held the statute inapplicable where the appellant at the time he attempted to invoke the act (interstate) was awaiting trial in a Delaware prison and had not entered upon a “term of imprisonment” as required for the application of § 616D (a). In all of the cases including King we pointed out the manifold instances where the statutory procedure had not been properly followed. In none of those cases did we hold that a prisoner would be deprived of his rights under the statute simply because the warden had failed to act within fifteen days or because the prisoner had failed to act within thirty days. We reiterate our holding in the instant case that the time in which the warden is to notify the prisoner and the time in which the prisoner is to notify the warden of his request for a trial under the terms of the statute are directory only. Thus it would appear that the results as well as the language of our prior opinions are consistent with the holding herein even though an isolated sentence taken out of context may at times be misleading.

When both the appropriate State’s Attorney’s Office and the appropriate court have received notice of the intention of a prisoner to invoke the Intrastate Detainer Act, accompanied by the appropriate documents required by the statute, we see no excuse, other than those provided in the Act, for the officials to fail to comply with an act which was passed by the legislature of Maryland now some nine years ago. We, therefore, reverse the judgment of conviction and remand the case for dismissal of the indictment with prejudice in accordance with this opinion. In view of our decision we do not reach the other question raised by the appellant.

Judgment reversed.

Case remanded for further proceedings.