author: Menchine, J.,

text:
    PETER JAY et al. v. CAROLYN FIELDER SMITH et al.
    [No. 290,
    September Term, 1976.]

      Decided February 2, 1977.

      The cause was argued before Moylan, M enchine and Moore, JJ.

      Charles B. Keenan, Jr., for appellants.

      Cypert O. Whitfill, with whom was Elwood V. Stark, Jr., on the brief, for appellee Carolyn Fielder Smith. Submitted on brief by John E. Kelly, County Attorney for Harford County, and Maurice W. Baldwin, Jr., Deputy County Attorney for Harford County, for other appellee.
   Menchine, J.,

delivered the opinion of the Court.

Carolyn Fielder Smith (applicant) applied for zoning reclassification from Agricultural, (A-l) to Suburban Residence District, (R-l) for 10 acres of land on the west side of Glenville Road, 3d Election District, Churchville, Harford County, Maryland. The 10 acres formed part of a farm of 278 acres (Fielder Farm) owned by applicant. Her application proposed a development for non-personal use comprising five lots of about 2 acres each. The proposed subdivision plat had been reviewed by the Planning Advisory Board, Development Advisory Board, Harford County Health Department and the Staff of the Department of Planning and Zoning. The planning staff and the Planning Advisory Board recommended the requested rezoning for the 10 acre tract.

Fielder Farm had been placed in the A-l classification at the time that initial Harford County comprehensive zoning was enacted in 1957.

From that time until December 4, 1973, the A-l classification permitted use of the land under § 7.012 of the Harford County Zoning Law as follows:

“Single-family and two-family (detached) dwellings, and individual trailer for single family occupancy when located on an individual lot.”

By ordinance 73-42, effective December 4, 1973, § 7.012 was amended to change the permitted use of all land in Harford County to which the A-l zoning applied so that the same read as follows:

“A. single-family or two-family detached dwelling or mobile home, for personal use, and not for development, when located on a lot of not less than one acre. If a property owner or developer petitions for rezoning to an “R” classification for subdivision purposes he shall submit a subdivision map for preliminary plan review so that both the subdivision and rezoning applications can proceed simultaneously.” (Emphasis added.)

The ordinance contained a preamble reading as follows:

Legislative Intent. This subsection is designed to avoid lot splitting and circumvention of the proposed County Comprehensive Plan, the County Water and Sewer Plan and to prevent haphazard growth in Harford County. Pressure on agricultural land for urban development puts undue pressure on existing public facilities and creates problems of an urban nature that may be in conflict with agricultural conservation.”

Otherwise stated, prior to December 4, 1973, the construction of five homes upon the 10 acre tract in question would have been a permitted use under the A-l classification; but after that date such construction under the A-l classification was forbidden except for the personal use of the owner of the land. Under the requested R-l zoning, single family dwellings would be a permitted use.

On July 1, 1975, the County Council of Harford County passed a resolution, providing, in part here pertinent, the following:

“NOW, THEREFORE, BE IT RESOLVED, that the Harford County Council, by affirmative vote of 5-2, ratifies and adopts the Hearing Examiner’s recommendation as its own final decision to approve the requested zoning reclassification based on the findings of fact and conclusions of law set forth in said recommendation; and
“BE IT FURTHER RESOLVED, that the Harford County Zoning Map of 1966 be and hereby is amended according to the mandate of these findings of fact and conclusions; ...”

The finding of facts and conclusions of law of the Hearing Examiner, in parts here pertinent, may be summarized as follows:

(a) the “neighborhood” affected by the proposed reclassification consisted of an area “within one (1) mile outside the perimeter of the Fielder Farm surrounding the subject property”;

(b) that construction between 1957 and December 4,1973, of 46 single family dwellings on lots of 20,000 square feet scattered within the defined “neighborhood” and construction of 25 dwellings in an area known as “Rolling Green,” within that same time period and also within the defined “neighborhood,” constituted a substantial change in the “neighborhood” that justified reclassification of the 10 acre tract from A-l to R-l;

(c) that Glenville Road was meant to accommodate local traffic only, but that the additional five residences “will not appreciably increase traffic in the area” or “create an adverse burden on the school or other public facilities available in the area.”

Peter Jay and others (protestants) appealed to the Circuit Court for Harford County. Harford County, Maryland, permitted to intervene in the Circuit Court, urged affirmance of the resolution granting reclassification. The Circuit Court affirmed.

Protestants have appealed to this Court. They urge that the County Council and the Circuit Court (a) erroneously determined the “neighborhood”; (b) that the County Council and the Circuit Court improperly utilized as “changes” the construction of dwellings antecedent to ordinance 73-42 and (c) that the zoning of the 10 acre tract constituted “spot zoning.”

The Neighborhood

The surrounding area essentially is comprised of larger tracts of land (from 30 to 310 acres) with scattered smaller holdings ranging upward from 1.5 acres.

In Pattey v. Board of Co. Commrs., 271 Md. 352, 317 A. 2d 142 (1974), it was said at 363 [148]:

“We have said that the concept of a ‘neighborhood’ is a flexible one and will vary according to the geographical location involved; it being axiomatic that in rural or semi-rural areas, as in the case at bar, the ‘neighborhood’ will be larger and more fluid than in a city or suburban area.”

We are persuaded that there is a reasonable basis for the finding of the hearing examiner — adopted by the County Council and the trial judge — that the “neighborhood” of the subject property is “the area within one (1) mile outside the perimeter of the Fielder Farm surrounding the subject property.” We see no error in such a conclusion.

Change

It is fundamental that piecemeal rezoning of land may not be had absent a showing of “mistake” in the legal sense, or “change” in the neighborhood of a substantial character. Montgomery v. Bd. of Co. Commrs, 263 Md. 1, 4, 280 A. 2d 901, 903 (1971).

In the subject case there is no evidence of mistake in original zoning.

We conclude that the basic issue for determination in this case is whether the construction of 71 single family dwellings within the defined “neighborhood” in the period between 1957 (the date of original zoning) and December 4, 1973 (the date upon which ordinance 73-42 took effect) may be considered as changes justifying rezoning of the subject tract.

The hearing examiner’s position upon that issue was thus stated in the course of her opinion:

“Protestants contend ‘that all the lots in the neighborhood of less than ten (10) acres which have been sold for the purpose of constructing dwellings for other than personal use since the adoption of the Zoning Ordinance, but before the effective date of Ordinance # 73-42 (December 1973) are evidence of nonconforming use’ rather than changes in the neighborhood which may be considered as relevant to the petitioner’s application for zoning reclassification. This Examiner disagrees with his approach to this aspect of zoning reclassification. The critical date for determining change is the date of the original comprehensive zoning plan, Deblasis v. Vestry of Addison Parish and Dioceses of Washington, D. C., Inc., 184 A.2nd 840, 229 Md. 530. In some cases, the Court of Appeals has been even more liberal in its approach to time relevant to neighborhood changes. In Town of Sommerset v. County Council for Montgomery County, 181 A.2nd 671, 229 Md. 42, the Court of Appeals allowed consideration of changes between the time of the initial zoning and the time of the confirmation thereof, that is between 1928 and 1955, because the Council deemed it necessary to consider the cumulative affect of changes in the neighborhood on the application for rezoning. Ordinance # 73-42 amended Article 7.01, principal permitted uses in an ‘A-l’ agricultural district. The said amendment thereto was a use regulation amendment of the County Zoning Ordinance rather than an amendment of the comprehensive zoning plan, which would allow an updating of the critical date relating to change in the neighborhood, therefore, the amendment date, as aforesaid is not controlling.”

The trial judge implicity adopted that position, saying in the course of his opinion:

“The appellants’ second allegation of error, that the record is devoid of evidence showing sufficient change in neighborhood to justify rezoning, fails for the reason given by the Court in Wakefield, supra.[] A careful reading of the 287 page transcript of proceedings before the hearing examiner reveals that the record is hardly ‘barren’ of facts supporting the contention that there have been changes in the ‘neighborhood’. The Court is of the opinion that the evidence presented to the hearing examiner on the issue of ‘change’, in the form of evidence of the number of houses built on lots of three (3) acres or less since 1957 in an area encompassed by the map which applicant said is her neighborhood, certainly meets the ‘fairly debatable’ standard.”

We do not find such a position to be sound under the circumstances of this case. It is true that there are cases in which it has been said that “changes” antecedent to the last comprehensive rezoning may be taken into consideration, along with other changes, in the determination whether later piece-meal rezoning lawfully is permissible. In Town of Somerset v. County, 229 Md. 42, 181 A. 2d 671 (1962), it was said at 48 [674]:

“We reaffirm the rule that comprehensive rezoning is entitled to the same presumption of correctness as is original zoning, but we think the appellants seek to press their argument based thereon further than our decisions dealing with the problem warrant. Changes which may have occurred prior to the last comprehensive rezoning need not be wholly disregarded when a change from that zoning is under consideration. It may be — as was the case here — that it was a rather close question in the minds of the officials concerned whether a change in the zoning of the land involved should not have been made at the time of the last comprehensive zoning, and additional changes thereafter may bring the zoning status of the land as to which action is sought over the line dividing different zones.
“We said in Muhly v. County Council, 218 Md. 543, 546 (in referring to the 1928 and 1954 Montgomery County general zoning ordinances):
‘It is true that the readoption of a map and plan, without change as to a particular property, is entitled to the presumption that it was a deliberate confirmation of the earlier decision, but since it is the cumulative effect that may be decisive, we think changes between the time of the initial zoning and the confirmation should not be wholly disregarded.
In Muhly we referred also to the case of Nelson v. Montgomery County, 214 Md. 587, 594, in which there were taken into account a number of changes which had occurred between the time of the original zoning under the 1928 law and 1955, the date of the hearing.[] The County Council was entitled, as we see it, in deciding whether the neighborhood had changed significantly since 1954, to take into consideration the changes between 1928 and 1954.”

We are persuaded that the rationale of those cases has no applicability to the subject case.

Here, the preamble to ordinance 73-42 makes crystal clear that the haphazard “changes” — now urged in sole support of the subject reclassification — were the very events that were declared to be in “circumvention of the proposed county comprehensive plan” and had put “undue pressure on existing public facilities and creates problems of an urban nature that may be in conflict with agricultural conservation.” To permit those antecedent events to serve as a foundation for this reclassification would be to subvert ordinance 73-42 and render its passage a mockery.

We find in this record no change in the “neighborhood” as would justify the proposed reclassification.

Our decision upon the issue of “change” being dispositive of this appeal, we do not reach the “spot zoning” contention of appellant.

Applicant, attempting to add a second string to her bow, urges that we should “hold that section 7.012 of the Harford County Zoning Ordinance as amended by County Council Bill 73-42 is invalid.” The issue was not raised or decided below. We shall not consider it. Maryland Rule 1085.

Order reversed and canse remanded for the passage of an order consistent with this opinion.

One half of the costs to be paid by each appellee.

      . Minimum lot size under original ordinance: 20,000 square feet, with minimum width of 100 feet. § 7.05.

      . A tar and chip back road for travel between Darlington and Bel Air.

      . Lawrason Sayre and Jane H. Sayre; Mr. and Mrs. Melvin J. Carlson.

      . Wakefield v. Kraft, 202 Md. 136, 96 A. 2d 27 (1953).

      . The Court of Appeals in Nelaon pointed out that the protestants admitted that later changes also had taken place. 214 Md. at 594.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    JAMES PARKER BLACKWELL v. STATE OF MARYLAND
    [No. 569,
    September Term, 1976.]

      Decided February 2, 1977.

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

      Thomas A. Rymer, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and NagiP. Maloof, State’s Attorney for Calvert County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

James Parker Blackwell was convicted by a jury in the Circuit Court for Calvert County of:

1. Murder in the second degree;

2. Manslaughter by motor vehicle;

3. Driving while intoxicated; and

4. Leaving the scene after a fatal accident.

The trial judge sentenced him to 15 years for murder, 3 years for manslaughter, 2 years for driving while intoxicated (second offense) and 6 months for leaving the scene of an accident. The last three sentences were to be consecutive with each other but concurrent with the first.

The evidence indicated that the victim, a teenage girl, was killed while riding her newly purchased ten speed bicycle after 10:00 o’clock on the evening of June 30, 1975. The bicycle was equipped with a front light generated by the bicycle’s propulsion, and reflectors on its back, pedals and wheels. The evidence was sufficient to support a rational inference that the victim’s death was caused by Blackwell, whose automobile struck her bicycle from behind at a point not more than two feet from the shoulder, although within the travelled portion of the road. The evidence was also sufficient to show that appellant left the scene of the accident without stopping to render assistance, and drove while intoxicated in violation of Md. Code, Art. 66V2, §§ 10-104 and 11-902.

Testimony from the State’s witnesses that appellant’s speed was within the posted limit, when observed immediately before and immediately after the accident, negated any possible inference of excessive speed as a factor causing the accident. There was testimony from two bicyclists that, when appellant left an inn immediately before the accident, his car was weaving from side to side as if having started too fast and was momentarily out of control. An autoist and his passenger testified that, while not having seen the accident, they did come upon the victim as appellant’s vehicle was leaving the scene. They observed that a portion of the vehicle twice left the main portion of the road and travelled briefly on the shoulder.

Murder

We are first concerned on this appeal with the sufficiency of the evidence of murder in the second degree, the propriety of the instructions related thereto, and the related issue of the effect of evidence of appellant’s prior drinking habits, including several instances of intoxication (in the opinion of witnesses), a prior conviction for driving while impaired, and evidence that, while apparently intoxicated, appellant had been involved in an accident 2 or 3 years prior to the accident at issue. The admissibility of this evidence will be considered hereinafter.

The evidence introduced over objection included the testimony of a district court commissioner that appellant had pled guilty to driving while impaired on May 15, 1975. Another witness, the proprietor of an inn, testified that appellant’s propensity to overindulge compelled the proprietor to refuse appellant hard beverages, restricting him to the purchase of beer. A third witness’ testimony is encapsulated in the State's proffer, later admitted through the witness:

“Your Honor, we would proffer that this man was a member of the Rescue Squad in 1973 and he personally responded to the scene of an accident which this man was involved in and he was drunk at that time. He will testify to that. He will also testify that he has seen him on numerous occasions since then and on every occasion since then that he’s seen him that he has been drunk.”

When defense counsel persisted in objecting, the court attempted to justify its rulings concerning prior intoxication:

“The charge from manslaughter by auto I would not admit nicely but the charge here is murder and one of the essential ingredients of murder is malice. In this case it’s going to have to be equivalent of implied malice. Part of that is the defendant’s knowledge of the risk to human life he was taking in the actions he was doing. It seems to me his previous experience with accidents while driving drunk as well as his previous experience with excessive drinking is some evidence for the Jury to consider in deciding what his state of mind was or the condition of his heart. It is equivalent malice is action by a person with a depraved heart may be so it seems to me that the evidence is relevant and the credibility is for the Jury.”

The trial judge adhered to his reasoning when he instructed the jury on second degree murder. However, the jury apparently was not clear about the court’s instruction on malice, and asked:

“Please define again what' constitutes 2nd degree murder explaining the degrees of malice”.

After again pointing out that:

“Malice is the distinguishing element which makes the difference between an unlawful killing being murder either in the first or second degree or manslaughter.”,

the judge instructed, inter alia:

“Now, actual malice is something which indicates a deliberate intent to kill. That’s not the only kind of malice. That actual intent which makes it actual malice, you can have what is the equivalent of an actual intent even though the person doing the killing didn’t set out specifically to kill the person who died. Now, you will hear that called implied malice. I don’t particularly like the term implied malice, equivalent to malice is a better way to express it. Now, when you’re trying to decide whether actions which result in death are equivalent to malice or are simply gross, reckless and wanton conduct which we discussed with you on the manslaughter by automobile charge, you are trying to draw a distinction between two different grades of behavior or conduct. Somewhere in the ascending or descending scale of seriousness, recklessness, wantonness and disregard for human life ceases to be manslaughter and becomes equivalent malice sufficient for you to find murder. The precise line or distinction between them you have to draw. I can’t give you a precise line where one becomes the other. I can give you extreme samples on both ends.”

Because upon our review of the record we find insufficient evidence of malice, the issue of murder was erroneously presented to the jury.

“Malice is the indispensable ingredient of murder; by its presence, homicide is murder; in its absence, homicide is manslaughter.” Lindsay v. State, 8 Md. App. 100, 104; see also Chisley v. State, 202 Md. 87, 105. Express malice exists whenever an accountable person kills another intentionally, unless the killing is justified or excusable, or unless there are mitigating circumstances. Lindsay, supra. The State conceded in its brief that “there was no evidence that the Appellant harbored any ill will against the decedent.” That concession, coupled with our observations upon reviewing the record, makes it clear that there was not the slightest evidence of “actual” or “express” malice. These terms are contemporary expressions used to connote an “intent to kill”, the sole original intent required to prove murder. See Evans v. State, 28 Md. App. 640, 696, aff'd State v. Evans, 278 Md. 197.

Even if express malice does not exist, malice may be inferred from proof of certain facts. Moore v. State, 15 Md. App. 396, 403-404. This “implied” malice arose from the need felt to punish, as murder, homicides resulting from life-endangering intents, even though such intents did not involve a literal intent to kill. As pointed out by Judge Moylan for this Court in Evans, supra, those additional mental states were added to the mens rea of murder and they are recognized today as:

“1) intent-to-do-serious-bodily-injury murder;

2) felony-murder; and

3) depraved-heart murder. (Perkins gives this mental state the less emotionally charged and probably better label of ‘Wanton and Wilful Disregard of Unreasonable Human Risk’.)” (footnote omitted).

Id. at 696.

It is apparent that the trial judge submitted the issue of murder to the jury on the assumption that evidence of appellant’s “depraved-heart” or, as Judge Moylan noted, what Perkins, Criminal Law § 1 at 36-37 (2d Ed.), described as a “Wanton and Wilful Disregard of Unreasonable Human Risk”, might be inferred. In discussing this element of implied mens rea for murder, Perkins carefully pointed out an important, if narrow, prerequisite to permitting such an inference:

“In other words, the intent to do an act in wanton and wilful disregard of the obvious likelihood of causing death or great bodily injury is a malicious intent. The word ‘wanton’ is the key word here. For reasons to be emphasized later a motorist who attempts to pass another car on a ‘blind curve’ may be acting with such criminal negligence that if he causes the death of another in a resulting traffic accident he will be guilty of manslaughter. And such a motorist may be creating fully as great a human hazard as one who shoots into a house or train ‘just for kicks’, who is guilty of murder if loss of life results. The difference is that in the act of the shooter there is an element of viciousness — an extreme indifference to the value of human life — that is not found in the act of the motorist. And it is this viciousness which makes the act ‘wanton’ as well as ‘wilful’.” (footnote omitted). Id. at 37.

We do not believe that an inference of “viciousness” or “extreme indifference to the value of human life” may be drawn from the past, although persistent, drinking habits of an accused. While there may be depraved persons who persistently drink, it does not follow that those who do drink are implicitly depraved. The practice may be reprehensible, but it is not felonious.

It should also be noted that this depraved-heart type of implied malice must contain an element of “willfulness”, which connotes a deliberate intent to bring about the result which actually comes to pass, i.e.:

“Proceeding from a conscious motion of the will; voluntary.
Intractable; having a headstrong disposition to act by the rule of contradiction.
Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.” (citations omitted). Black’s Law Dictionary 1773 (rev. 4th ed. 1968).

Unless we assume that appellant’s drinking habits fulfill that interpretation of willfulness, rather than viewing his propensity to imbibe as a personal gratification — however selfish and objectionable — the record contains no evidence of “willfulness”. There is no evidence to indicate the drinking was motivated by a purposeful or deliberate intent to bring about the tragic result.

Beyond that, we have held that in enacting the manslaughter by automobile statute, Md. Code, Art. 27, § 388, the legislature intended to preempt the subject matter of unintended homicides resulting from the operation of a motor vehicle. In a short affirming opinion, the Court of Appeals in State v. Gibson, 254 Md. 399, adopted as correct the reasoning of the “careful and thorough opinion of Chief Judge Murphy” then of this Court, now of the Court of Appeals. In our opinion, 4 Md. App. 236, Chief Judge Murphy said:

“We believe that the Legislature in enacting Section 388 to punish persons who cause the death of another ‘as the result of the driving, operation or control of an automobile * * * in a grossly negligent manner,’ intended to treat all unintended homicides thereby resulting the same way, without regard to whether the homicide occurred in the course of doing a lawful or an unlawful act, or whether such act was malum in se or merely malum prohibitum” Id. at 246.

Although in that case the issue was whether the accused could be charged with common law involuntary manslaughter, as well as the statutory manslaughter by automobile, the “careful and thorough” language we used did not restrict the statutory preemption to common law manslaughter, but specifically applied our ruling to encompass all “unintended homicides”:

“We conclude, therefore, that in enacting Section 388, the Legislature intended to deal with an entire subject matter — unintended homicides resulting from the operation of a motor vehicle — and that the common law crime of involuntary manslaughter, when based on homicides so occurring, is in conflict with the statute and must yield to it to the extent of the inconsistency. See Lutz v. State, 167 Md. 12.” Id. at 247.

In the absence of evidence of intentional homicide, we hold that the statutory preemption applies as well to second degree murder as it did in Gibson to manslaughter. We hasten to add on the other hand, that under proper circumstances where the resultant death was intended, a conviction for murder may result, notwithstanding the use of an automobile as the instrumentality of death. See Connor v. State, 225 Md. 543 (defendant intentionally drove over deceased); Faulcon v. State, 211 Md. 249 (defendant intentionally drove over deceased); Allison v. State, 203 Md. 1 (defendant pushed deceased from moving car); see generally Murder-Homicide by Automobile, 21 A.L.R.3d 116. Furthermore, in a proper case where there is evidence of intentional homicide by use of an automobile, it is not improper to charge both crimes, and, if the evidence is sufficient, to submit both to the jury for its determination of which, if either, is applicable. It is equally apparent, however, that a guilty verdict on both counts would be inconsistent.

Manslaughter by Automobile and Driving While Intoxicated

Md. Code, Art. 27, § 388 states in pertinent part that:

“Every person causing the death of another as a result of the driving ... of an automobile ... in a grossly negligent manner, shall be guilty of a misdemeanor to be known as manslaughter by automobile .. ..”

Gross negligence, a prerequisite to conviction, is defined as a “wanton or reckless disregard for human life.” Duren v. State, 203 Md. 584, 588. It is deceptively akin to the definition of implied “malice”, one aspect of the ingredient of murder which distinguishes murder from manslaughter. See Lindsay, supra. As indicated above, Perkins defines that malice which we have depicted with the catch phrase “depraved-heart” as a “Wanton and Wilful Disregard of Unreasonable Human Risk.” One of two substantial differences between that definition and the definition of manslaughter applicable here is the absence of a need to prove willfulness in manslaughter cases. Murder by implied malice, and manslaughter by gross negligence, are separated by a most narrow line.

The other difference is the expressed use of the term “negligent” as a prerequisite to proof of the lesser crime. While simple negligence will not support a conviction of manslaughter, Duren, supra, a conviction of manslaughter does presuppose proof of the basic elements of negligence as well as “wanton and reckless disregard”. An essential element of negligence is that there be some reasonable connection between the act or omission of the defendant and the death that ensued. State v. Gibson, supra, 4 Md. App. at 242, n. 3; see also Palmer v. State, 223 Md. 341; Craig v. State, 200 Md. 590.

We look first to see what evidence appears in the record of appellant having negligently performed a lawful act, or having negligently failed to perform a legal duty — keeping in mind that the degree of negligence must be gross or criminal to support the conviction, viz., it must manifest a wanton disregard for human life. State v. Gibson, supra, 4 Md. App. at 242. As summarized by the State’s brief, the evidence of negligence was fourfold:

“The appellant had been drinking in at least three different establishments; had swerved back and forth when he left Solomon’s Inn; had been seen driving on the shoulder of the road [after having] left the scene of the accident without rendering aid to the victim; and denied to Corporal Ireland that he even remembered the accident taking place.”

The State was able to show that when appellant left the inn just before the accident occurred his conduct gave rise to an inference of insobriety. When seen on the parking lot, he stumbled when he walked and appeared to attempt to enter a brown station wagon before finding and entering his own green station wagon. As he drove off, his car swerved “back and forth across the road”:

“He took off faster than what he could handle it. He was on the other side [of the road] and it took a while to get straightened out.”

These observations were made moments after the victim had been seen on her bicycle, riding up the road ahead of appellant but in the same direction. The testimony was clear that her running lights were on and that the bicycle, purchased that day, was properly equipped with requisite safety devices, including reflectors.

Soon after the victim had been seen proceeding by bicycle on the road away from the inn, appellant’s vehicle followed, after the somewhat erratic beginning heretofore described. Moments later, two of the witnesses who had observed appellant on the parking lot proceeded in their vehicle in the same direction as victim and appellant. They came upon the accident scene too late to observe the actual impact, but saw the victim lying beside the road and the taillights of what later proved to be appellant's vehicle departing over a hill. Aware that other persons whom they had passed were approaching on bicycles and could render aid to the victim, the witnesses elected to follow the departing vehicle and obtain an identifying license number. In doing so, they made two pertinent observations during a brief period in which they observed appellant: 1) he was driving under or within the speed limit, but, 2) his car weaved twice in less than a quarter of a mile, back and forth from the road to the shoulder.

Very little evidence was available of the deceased’s conduct while riding her bicycle at the time, and that mostly circumstantial. There was ample uncontroverted testimony that the bicycle was new and, as indicated, had all of the safety devices requisite thereto working at the time, including a running light and reflectors. Circumstantial evidence showed that the victim was struck not more than two feet from the right shoulder of the road, indicating that she was as nearly to the right side of the roadway as was practicable, conforming to her statutory duty. See Md. Code, Art. 66V2, § 11-1205. Nothing indicated a violation of any duty on her part, and she was thus entitled to all of the rights of any other vehicle on the road. See Md. Code, Art. 66V2, § 11-1202. This included the right to proceed without fear of being struck from behind, which the damage to the bicycle clearly indicated had occurred. Considering the uncontroverted affirmative evidence of the victim’s compliance with her cyclist responsibilities, contrasted to the evidence of appellant’s erratic driving, the evidence was such that a jury could properly have inferred that the accident was caused by appellant’s failure to maintain a proper lookout to avoid an accident, see Lord v. Pennsylvania R. R. Co., 251 Md. 113, 119; Murphy v. Bd. of County Comm’rs, 13 Md. App. 497, 510; or if he had seen the victim he failed to maintain control of his vehicle while attempting to pass her. In either instance, the breach of his duty of due care caused the accident.

In addition (if further evidence of causation had been needed), the uncontroverted evidence showed that appellant left the scene of the accident without stopping to render aid in violation of Md. Code, Art. 66V2, § 10-104. This evidence of flight from the scene was proper for the jury to consider and may give rise to an inference of guilt, see Clay v. State, 211 Md. 577, 585; Montague v. State, 3 Md. App. 66, 77; and indeed of a reckless disregard for human life. Furthermore, the jury could have considered appellant’s denial that he had been in an accident that evening, vis d vis the strong, if not conclusive, physical evidence to the contrary. See Lilly v. State, 212 Md. 436, 440. Denial under such circumstances might be indicative of appellant’s state of mind, but could also have been relevant to appellant’s state of sobriety or inebriation, explaining the erratic manner in which he operated his motor vehicle.

Wanton and Reckless Disregard

But breach of duty and causation alone are not enough in a manslaughter by automobile case. The negligence must be “gross”, and appellant argues that in no case has an appellate court in Maryland ever held evidence of intoxication alone to have been sufficient to show a “wanton or reckless disregard for human life”, raising simple negligence to “gross” negligence. The strongest cases we have found along these lines indicate that drinking is a factor entitled to some weight “although not controlling”. Lilly, supra, 212 Md. at 443; Clay, supra, 211 Md. at 585. In these cases other “flagrant violations” of the traffic law were coupled with drinking and other factors, such as flight, to meet the test of gross negligence.

On the other hand, in only one of the reported cases concerning manslaughter by automobile were we able to find substantial evidence of intoxication. In all of the other cases, the degree of alcoholic influence on the driver was treated only as some evidence among other factors for the jury to consider in the overall question of gross negligence. In each of them, where alcohol was involved, the drinking amounted to something less than intoxication by statutory designation or factfinder’s determination. The “overall question” to be decided in these cases is succinctly stated in Clay, supra:

“ . .. was the ‘conduct of the defendant, considering all the factors of the case,... such that it amounted to a ‘wanton or reckless disregard for human life.’ ’ ” Clay, supra, 211 Md. at 584.

As we read the automobile manslaughter cases, the only reason the appellate courts of Maryland have not permitted extreme intoxication to have raised simple negligence to gross negligence by express holding, is that no case has ever been before the Court where the evidence showed a state of inebriation that would sustain a verdict of driving while intoxicated. Indeed, the language of the Court of Appeals indicates that it foresaw, but did not foreclose that possibility in the only case which dealt with the issue of intoxication separately from other “flagrant violations” of traffic laws.

In Thomas v. State, 206 Md. 49, the evidence showed that the driver had consumed 6 bottles of beer during the five and one-half hours before the accident. While the evidence also indicated excessive speed and defective brakes, the lower court had based its finding of guilt on intoxication alone. In reversing the trial court, the Court of Appeals recognized that:

“Intoxication [was] the ground upon which the trial judge found the appellant guilty of gross negligence. In making this finding, he obviously considered insufficient the direct and uncontradicted evidence of the exercise by the appellant of care in driving just a few minutes, before the fatal accident both in making a left turn off a major road and in slowing down to a plainly cautious speed on approaching a school crossing.” Id. at 56-57.

The Court pointed out that:

“The only evidence relating in any way to intoxication was the fact that in a period of about five and a half hours the appellant had consumed six bottles of beer, two of them shortly before the accident, and the further fact that one of the police officers had noticed alcohol on his breath. Not one witness testified that he appeared to be intoxicated, the police made no tests to determine whether or not he was at all under the influence of alcohol and no such charge was made in the proceedings before the Trial Magistrate. We cannot regard the absence of such a charge as without significance [] where, as in this case, the police were on the scene very shortly after the accident and interviewed the driver and had ample opportunity to observe his actions and demeanor. No testimony at all, either general or specific, was offered to show what the intoxicating effect of six bottles of beer consumed over the time here involved would be. (For a discussion of such tests, see The Compulsory Use of Chemical Tests for Alcoholic Intoxication A Symposium. 14 Md. Law Rev. 111.) We think that the testimony as to how the defendant was driving just before reaching the top of the hill and the curve down to the bridge, as to the erratic operation of the brakes, as to the appellant’s efforts to regain safe control of the truck after its unexpected apparent reaction to a touch of the brakes, and as to his reasons therefor, and as to his last desperate effort to avoid running into the boys by trying to run the truck into the bridge wall also tend to negative a belief that he was intoxicated.
In this, case, since there was no real dispute as to the facts, the credibility of witnesses, which can, of course, be better judged by the trial court which sees and hears them, is hardly involved. In these circumstances we have less hesitation in drawing a conclusion from the facts at variance with that of the trial judge. In our opinion, the evidence with regard to intoxication was not sufficient to warrant a finding that the appellant was guilty of gross negligence within the established meaning of the statute in operating the truck at the time of the occurrence of the tragic accident, which gives rise to these cases. Accordingly, the judgment in each case will be reversed and the cases will be remanded. The remand will not preclude a new trial, if the State elects to retry the charges.” (emphasis added). Id. at 57-58.

By its detailed analysis and choice of language indicating that the evidence of intoxication was insufficient to prove gross negligence, the Court also indicated that if there had been sufficient evidence of intoxication in that case it would have upheld the judgment of guilty of manslaughter by automobile on that ground alone. If it believed that intoxication alone would have been insufficient, the Court could easily have said so, and spared a lengthy justification for reversing a factfinder on a finding of fact.

In the instant case, there was evidence of intoxication of an extreme nature, in addition to evidence of the negligent causative factors. This is attested by the jury’s verdict of guilty of driving while intoxicated. Because the State had sufficient evidence of causation, it relied primarily upon the degree of intoxication to prove wanton and wilful disregard of human life, and thus “gross” negligence.

In proving reckless disregard by driving under the influence of a self-induced intoxication, the State was' able to obtain substantial evidence of appellant’s drinking and of his condition on the day of the accident. He had been in three bars between 5:00 p.m. and 10:00 p.m. and had five rum and Coca Cola drinks, which the barmaid testified was his favorite beverage. When his vehicle was seen at his home two hours after the accident, photographs showed two empty bottles (inferably rum bottles from their appearance) near a Coke can, on the front floor of the vehicle.

The two arresting officers were admitted into appellant’s room after the accident, where they found him in an apparent state of intoxication:

“A He had his shoes off and was lounging on the bed. His clothes were disarranged.
Q Was he clothed lying on the bed?
A Yes, sir.
Q Would you describe his speech or mannerisms at that time?
A When he stood up his balance was swaying. His speech was slurred. In preparing to leave the residence he attempted to put his left shoe on his right foot.
A Yes, sir. He was — he had an apparent odor of alcoholic beverages. His eyes were bloodshot. He stumbled when he tried to turn. As I said he tried to put the wrong shoe on his right foot.”

It was also pointed out that appellant denied any knowledge of the accident and had to be told four times why he was being arrested. He was also most unsteady on his feet.

“A When he first got up from the bed he was shaky with his balance. I just took his arm and brought him out. He kept stumbling. I had to hold him up several times.
Q Did he ever fall?
A No, I helped him up.”

Although this was evidence of his condition two hours after the accident, it came in without objection. Furthermore, the Court of Appeals has recognized, sub silentio, that an accused’s degree of sobriety one and one-half hours after the accident, as well as indicia of drinking inferred from empty containers, is admissible to indicate an accused’s state of sobriety in manslaughter by automobile case. See Wasileski v. State, 241 Md. 323, 326-327.

But it was not his condition alone that evidenced his wanton and reckless disregard for his fellow humans. That he coupled such insobriety with driving an automobile on a public highway made his conduct culpable. It is common knowledge that an automobile is a dangerous instrumentality, and we notice that fact judicially. Motor vehicles cause more deaths in time of peace than do any other manmade device. When appellant voluntarily, if not intentionally, drank himself into a state wherein his nervous system was numbed, adversely affecting his reflexes, coordination, discretion and judgment, to drive an automobile thereafter itself constituted a wanton or reckless disregard for human life.

To drive while simply under the influence, to the extent that one is incapable of safely driving his vehicle, is a direct violation of the law. Md. Code, Art. 66V2, § 11-902 (c). When the degree of inebriation is adjudged to render a driver — not only unsafe (§ 11-902 (c)) or even impaired (§ 11-902 (b)), but — beyond the most extreme condition of insobriety recognized by law, i.e., intoxicated (§ 11-902 (a)), one who drives thus incapacitated may be inferred to have disregarded human life both wantonly and recklessly. When death ensues, inferentially or directly attributable to a breach of a duty by appellant, derived from his self-induced condition of intoxication, driving while drunk may be sufficient to raise the cause of death from simple negligence to gross negligence, as a factual determination to be made by the fact finder.

Having accepted the State’s uncontroverted evidence in the light most favorable to it as we are compelled to do, we hold that such evidence was sufficient to permit a finding of gross negligence and hence sufficient to have convicted appellant of manslaughter by automobile.

In view of our discussion, we need hardly add that the evidence was also sufficient for the jury to have convicted appellant of driving while intoxicated.

Prior Misconduct

Although we have found the evidence sufficient for the jury to have convicted appellant of driving while intoxicated and manslaughter by automobile, it is evident that the extensive testimony of prior drinking habits and related misconduct (including a conviction for driving while impaired) was both improper and prejudicial.

In Ross v. State, 276 Md. 664, 669-670, the Court of Appeals clearly and concisely set forth the general rule of exclusion, its exceptions and the exceptions to the exceptions:

“The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. Harrison v. State, 276 Md. 122, 345 A. 2d 830 (1975), MacEwen v. State, 194 Md. 492, 500, 71 A. 2d 464 (1950); Young v. State, 152 Md. 89, 91, 136 A. 46 (1927); Weinstein v. State, 146 Md. 80, 88, 125 A. 889, (1924); Wethington v. State, 3 Md. App. 237, 240, 238 A. 2d 581 (1968); Gorski v. State, 1 Md. App. 200, 202, 228 A. 2d 835 (1967). This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ C. McCormick, Evidence § 190 (2d ed. 1972).
There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164, 150 A. 278 (1930); Cothron v. State, 138 Md. 101, 110, 113 A. 620 (1921); Chandler v. State, 23 Md. App. 645, 650, 329 A. 2d 430, cert. denied, 274 Md. 726 (1974); Wethington v. State, Gorski v. State, both supra. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, Berger v. State, 179 Md. 410, 20 A. 2d 146 (1941); and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. C. McCormick, Evidence § 190, supra.”

But the Court went on to point out:

“ . . . that the introduction of evidence which shows other offenses by the accused should be subjected to rigid scrutiny by the courts because of the great potential for danger which characterizes it. Berger v. State, Young v. State, Weinstein v. State, Gorski v. State, all supra; see Wethington v. State, supra. As we said in Berger.
‘ ... To come within the exception to the rule that evidence of previous offenses is irrelevant, there must appear between the previous offense and that with which the defendant is charged some real connection other than the allegation that the offenses have sprung from the same disposition. The exception does not go to the extent of sanctioning the admission of evidence of the ‘propensity’ of the accused to commit crimes similar to that for which he has been indicted....’ 179 Md. at 414 (emphasis added).’
The disputed testimony here need hardly be subjected to rigid scrutiny to demonstrate its inadmissibility.” 276 Md. at 671.

The very purpose expressed by the judge for admitting this testimony was to show appellant’s “depraved-heart”. When viewed in this light, relative to a charge of drunk-driving, which was also the evidence relied upon to prove wanton and reckless disregard for human life, what could be more prejudicial than prior acts of drunkenness? It has no purpose to serve in this case that could outweigh its inherent prejudicial effect. See Hoes v. State, 35 Md. App. 61 (1977). Furthermore:

“ ‘Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it, and by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done.’ ” Curry v. State, 117 Md. 587, 593.

We cannot say that the testimony of appellant’s history of drinking and related misconduct was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 646-659; see Ross, supra, 276 Md. at 674; compare State v. Babb, 258 Md. 547.

Leaving the Scene of an Accident

We have found the evidence sufficient to sustain this conviction and we find further that the improperly admitted evidence of prior alcohol related misconduct was so unrelated to the uncontroverted evidence as to be harmless to this conviction, beyond a reasonable doubt. See Dorsey, supra. Because of its relevance to the issues to be retried on remand, i.e., as evidencing a disregard for human life and a guilty state of mind, evidence that appellant left the scene of the accident will be admissible upon retrial.

Illegally Imposed Sentence

Appellant points out that the judge imposed an illegal sentence for driving while intoxicated. The court imposed a two-year sentence based upon a second conviction of this offense. Md. Code, Art. 66V2, §§ 11-902 (a), 17-101 (b) (i). Driving while intoxicated carried a maximum imprisonment of 1 year on the first offense and 2 years on a subsequent offense. However, appellant’s previous conviction was for driving while impaired. Md. Code, Art. 66V2, § 11-902 (b). Driving while impaired carries a maximum imprisonment of 2 months for the first offense and a maximum of 1 year for a subsequent offense. Md. Code, Art. 66V2, § 17-101 (b) (ii), (iii). Appellant is correct in asserting that he cannot be sentenced as a second offender for driving while intoxicated until he has twice been convicted of that crime. The prior conviction for impaired driving will not suffice as a substitute.

Because our reversal of the driving while intoxicated conviction (as well as manslaughter by automobile) will cause the case to be remanded for a new trial, we will make an additional observation to avoid the repetition of an obvious error. Appellant was not charged as a second offender. To be convicted as a second offender, an accused must be charged as one. See Sullivan v. State, 29 Md. App. 622.

Peremptory Challenges

Finally, appellant complains that he was denied 20 peremptory challenges although charged with second degree murder. Despite the fact that our holding leaves the issue moot, we point out to appellant that he did not comply with the local rules requiring written notice to the court within a prescribed time. See Green v. State, 19 Md. App. 683, 685-686.

Judgment of guilty of murder reversed.

Judgment of guilty of manslaughter by automobile reversed and remanded for a new trial.

Judgment of guilty of driving while intoxicated reversed and remanded for a new trial.

Judgment of guilty of leaving the scene of an accident affirmed.

Costs to be paid by Calvert County.

      . Appellee notes that there was no objection to the instruction as required by Md. Rule 756 (g). Our holding is that the evidence was insufficient and the issue of murder should have been withdrawn upon appellant’s motion for judgment of acquittal.

      . As has been frequently noted, the law makes no distinction between direct evidence of the fact and evidence of circumstances from which the existence of the fact may be inferred:
      “ ‘No greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.’ ” Robinson v. State, 18 Md. App. 678, 701.

      . The record indicates that the speed limit on that portion of the highway was 50 miles per hour. In addition, the shoulder of the roadway was unpaved. It is therefore apparent from the evidence that the victim was not precluded from riding upon the roadway by Md. Code, Art. 66V2, § 11-1205.1. Had the record reflected her presence on a proscribed highway, we note that where criminal negligence is the proximate cause of death, the fact that negligence of the victim may have concurred in producing the result would have been no defense. See Duren v. State, 203 Md. at 593-594.

      . The back wheel was totally crushed and destroyed. The front wheel appeared to be without damage.

      . Appellant admitted to the police that he had driven the automobile that night but denied having had an accident. The damage to the right front and side of his station wagon revealed paint from the bicycle and blood and flesh from the victim.

      . In Cummings v. State, 27 Md. App. 361, 387, the defendant had submitted to a test which indicated that his blood alcohol content was 0.24, well in excess of the statutory state of intoxication. See Md. Code, Courts and Judicial Proceedings Art., § 10-307 (e). Because there was also evidence of excessive speed in the case, the intoxication evidence was considered, but was not the sole controlling factor in finding that the evidence was sufficient to sustain the conviction of manslaughter by automobile.

      . See Judge Powers’ enlightening summarization of all such then published in the dissenting opinion of Boyd v. State, 22 Md. App. 539, 554-563.

      . Our review indicated that appellant here had been charged with eight counts in his indictment. The docket entry provides a compendium:
      “Presentment and Indictment filed. Charge: - (1) Murder, (2) Manslaughter, (3) Manslaughter by M/V, (4) Negligent driving, (5) Reckless driving (6) Driving intoxicated (7) Driving while impaired, (8) Hit and Run”.
      Only four of these were submitted to the jury, as was clear not only from the verdict itself, but from the handwritten yellow sheet setting forth the “Possible Verdicts" filled in by the jury. It included Counts 1, 3, 6 and 8 only. This was consistent with the trial court’s instructions which read:
      “Now, this case is going to be submitted to you on four charges. They are Murder, or Murder in the Second Degree as you hear it called, Involuntary Manslaughter, Driving while Intoxicated and Failure to stop after an Accident involving death or Serious Bodily Harm. Those are the four charges.”
      The record contains a Notice to Defendant that the prosecution abandoned the charge of murder in the first degree. No such notice or similar action on any other charge appears in the record. Furthermore, at the close of the State’s case, the appellant filed a motion for judgment of acquittal which the court overruled “as to each count”. Beyond that, the record is silent. Among the missing charges, unexplained in record or by brief, are charges of negligent driving and operating a motor vehicle in wanton or wilful disregard of safety, both of which go to the very heart of causation. We cannot understand tne absence of these charges having gone to the jury, but the issue was not raised by appellant, and while we regard it with wonder, we attach no significance to it. Compare Thomas v. State, supra, 206 Md. at 57.

      . In light of that evidence of causation, it is not necessary for us to decide whether driving while intoxicated, in violation of Md. Code, Art. 66½, § 11-902, could provide evidence in and of itself sufficient to prove causation as well as wanton and wilful disregard of human life, in the event of a total absence of any other breach of duty to a deceased who is killed by a drunk driver. A minority of states have apparently held that if the fatal accident ^occurs while the driver is intoxicated it is not necessary for the prosecution to establish a causative link between the death and the intoxication. See cases cited in State v. Costello, 367 P. 2d 816, 820-822 (special concurring opinion).


author: Moore, J.,

text:
    ELEANORE RUTH WALKER v. GEORGE ROBERT HALL et al.
    [No. 313,
    September Term, 1976.]

      Decided February 3, 1977.

      The cause was argued before Morton, Davidson and Moore, JJ.

      Michael P. Crocker, with whom was James B. Wheatley on the brief, for appellant.

      Richard C. Murray, with whom were James H. Cook and George E. Campbell on the brief, for appellees George Robert Hall and Dennis George Hall.

      C. Russell Fields, with whom were Keyes & Simmons on the brief, for appellee George Henry Becker.

      Robert K. Nead for remaining appellees.
   Moore, J.,

delivered the opinion of the Court.

The collision of two automobiles on a clear Saturday afternoon in November, 1969, spawned three separate tort actions involving multiple parties and claims. These suits were ultimately consolidated for a trial which commenced before a jury some six years later in the Circuit Court for Baltimore County (Brannan, J.), and consumed nine days.

The first party to file was Eleanore Ruth Walker, sole appellant here, then 58 years of age and the driver of a 1963 white Mercury Marauder. Her original declaration named as defendants the driver of a 1968 red Mustang, Dennis George Hall, then 18, and his father. It was these two vehicles which collided at the intersection of Old Philadelphia Road (Route 7) and Pfeffers Road in Baltimore County. The accident occurred as Hall was proceeding southbound, with two passengers, and Mrs. Walker, coming from the opposite direction, driving alone, was attempting to negotiate a left-hand (west) turn into Pfeffers Road.

Young Hall and his father entered general issue pleas and filed a counterclaim in February, 1970. More than two and a half years later, Mrs. Walker obtained leave of court to file an amended declaration on the ground that Hall had been engaged in a motor vehicle race with a third car, a 1969 Dodge Challenger, operated by his friend, William Charles Martin, then 18, carrying three teenage male passengers. The new Dodge was owned by George Henry Becker, then 21. He was, however, riding with his girlfriend, Sharon Walczak, then 16, in Hall’s Mustang. Appellant’s amended declaration, filed on November 27, 1972, named fifteen parties defendant, including Hall, Becker, Martin and the three passengers. Previously, in March 1970, Becker had brought a negligence action against Mrs. Walker only, for personal injuries sustained in the accident. (Appellant thereupon filed a third party claim against Dennis Hall and his father.) In June, 1970, Sharon Walczak had filed a similar action against the Halls and Mrs. Walker.

When the three consolidated actions finally came on for trial, Mrs. Walker’s proof consisted of over sixty exhibits, her own testimony and that of her daughter, who resided two and a half miles from the place of the collision. In addition, appellant’s counsel read into evidence major portions of depositions taken in 1972 and 1973 of four of the appellees and of a witness, Claude F. Kilgore, a resident of Virginia, who previously resided on Old Philadelphia Road near Pfeffers Road at the time of the accident, as well as answers by Martin’s passengers to interrogatories propounded by appellant. The trial court, at the close of plaintiffs case, granted directed verdicts in favor of Martin and his passengers. A verdict was also directed in favor of Becker at the close of all the evidence. There remained for determination by the jury Mrs. Walker’s suit against Hall and the latter’s counterclaim, Becker’s suit against appellant, in which Hall had been impleaded, and Miss Walczak’s action against appellant and Hall.

The appellees presented the live testimony of Dennis Hall, George Becker and Sharon Walczak. In addition, the investigating officer, Trooper Thomas Myrick, and one Calvin Leary were called. (The latter, a member of the Baltimore County Fire Department, gave testimony contradictory of critical aspects of the deposition of appellant’s witness, Kilgore.)

With the concurrence of counsel for all parties, the respective cases were submitted to the jury by the trial court upon specific issues, the form of the verdict being in part as follows:

“1. Was Eleanore Walker negligent and, if so, was that negligence a proximate cause of the accident?
Yes_ No_
2. Was Dennis Hall negligent and, if so, was that negligence a proximate cause of the accident?
Yes_ No_
3. Was George Becker guilty of any negligence which was the proximate cause of his injuries?
Yes_ No_
4. Was Sharon Walczak guilty of any negligence which was the proximate cause of her injuries?
Yes_ No__”

(Three additional questions were also submitted to the jury relating to money damages.) The jury found negligence on the part of the appellant and no negligence on the part of Dennis Hall, George Becker or Sharon Walczak. Damages against appellant were awarded in favor of the appellees as follows: Becker $100, Walczak $2,500, Hall $2080.

In support of her appeal, appellant has put forth some fourteen assignments of error with respect to the trial court’s rulings and instructions and the denial of her motion for a new trial. Particular emphasis is placed upon alleged error in the ruling by the trial court that the evidence on the issue of the existence or not of a motor vehicle race was insufficient. On this central question, as well as on subsidiary issues properly before us, we find no error. Relevant facts are stated below in our consideration of appellant’s contentions.

I The Alleged Motor Vehicle Race

The six youths and the 16 year old young lady involved in this case were all residents of Rosedale in Baltimore County. They were schoolmates, social friends and one or two were related. Some time around noon on the date of the accident, November 29, 1969, they met at the Village Sub Shop in Rosedale. There they decided to drive to Singer Run Park in Harford County, where appellee, William Charles Martin, intended to conduct a search for his wallet which had been lost or stolen in the Park the day before. As previously stated, Becker and his girlfriend, Sharon Walczak, rode with Dennis Hall in the latter’s Mustang, while Becker gave his keys to Martin to drive his new Dodge to the Park with the three other boys. Prior to leaving, Becker placed a six-pack of beer in Hall’s car. The group remained at Singer Run Park for one or two hours. Hall, according to his deposition, consumed two beers during that time. (Becker stated in his deposition that he had had two beers in Rosedale before they left.)

Becker’s rust-orange Dodge Challenger, with Martin at the wheel, accompanied by the three passengers, departed from Singer Run Park ahead of the Hall vehicle. The two groups were returning to Rosedale with no special plans for the balance of the afternoon and evening except that they did intend to get together again. A two or three mile unpaved road called Winter Run Road led from the Park area to Route 7. Hall and Martin agreed in their testimony that each was able to see the other while they were traversing this road and, for a time, after the cars turned right onto Route 7, heading south to Rosedale. Route 7, also known as Old Philadelphia Road, is a two-lane, undulating highway. Martin testified in his deposition, read at trial, that after he and his companions passed the intersection with Pfeffers Road, someone noticed that Hall’s Mustang was no longer in back of them. Martin pulled off the road for a few minutes but then proceeded back to Rosedale on Route 7, surmising that Hall was returning by another route. Becker and his date, Sharon, testified at the trial that they were reading magazines during the trip back with Hall and were not attentive to the car ahead.

Appellant’s witness, Claude Kilgore, stated in his deposition that at approximately 3:00 p.m. on the day in question, he was at his mailbox near the shoulder of Route 7, having walked there from his residence located approximately 100 feet from Route 7, just north of its intersection with Pfeffers Road. He stated that while there he observed, in a period of about 20 seconds, three cars proceeding southbound. He said that the first car was going about 70 m.p.h. This was followed by a slow-moving, light colored vehicle which he thought was one of the smaller Fords. Immediately behind the second vehicle, according to Kilgore, there came a red Mustang “also going at such a high rate of speed that automatically I took it for granted that he was racing with car number one.” He estimated the Mustang’s speed as about the same as that of the first vehicle. He also stated that the red Mustang moved over the solid yellow line dividing the northbound and southbound lane, passing the slow-moving vehicle and then proceeded back into its own lane. He observed the back of the Mustang until it left his sight at the crest of a hill just before the intersection of Pfeffers Road. After it disappeared over the crest, he heard the collision and observed smoke.

The investigating police officer, Trooper Myrick, testified that the Mustang left 109 feet of skidmarks and its front hood left the vehicle upon impact, traveling a distance of 75 feet and striking a house on the west side of Route 7. The trooper testified that Dennis Hall “appeared to have an odor of an alcoholic beverage”, which he noted on his report, but it was not sufficient to sustain a charge of driving while impaired.

On the subject of speed, Hall and Martin maintained that they kept generally within the 40 mile limit posted for Route 7. Appellees also offered the testimony of Calvin Leary, the Baltimore County fireman who was going southbound on Route 7 after working a part-time job in Harford County. Leary came upon the accident scene within minutes after the occurrence. He was driving a 1965 white Ford Comet and testified that, while driving at approximately 40 m.p.h., he observed the red Mustang ahead of him prior to the collision. He continued to observe the Mustang as it climbed the hill toward the intersection with Pfeffers Road until it dropped from view over the crest. At no time, according to Mr. Leary, did the Mustang cross over the line to pass another car. He also testified that the Mustang appeared to be proceeding at his own rate of speed, i.e., within the speed limit.

Appellant’s second amended declaration alleged that all the youthful defendants (except Sharon Walczak) were engaged in a race and that all were participants — Hall and Martin as racing drivers, the passengers by their presence and “by giving moral support, encouragement and incitement to the drivers of the respective vehicles in which they were racing.”

At the time of the accident, the statutory prohibition against racing or speed contests was Maryland Code, Art. 66V2, § 210 (1957, 1967 Repl. Vol.) which provided, inter alia, as follows:

“Racing or speed contest; wager; causing skidding, spinning or excessive noise.
“(a) In general. — No person shall operate or drive any vehicle on the public highways of this State in a race or in a speed contest, or on a bet or wager, or in any intentional improper manner so as to cause skidding, spinning of wheels, or excessive noise upon said highway. . . .
“(b) Timekeeper or flagman. — No person shall participate as a timekeeper or flagman in any unauthorized race or speed contest on the public streets, roads or highways in the State of Maryland. The race or speed contest need not be for a prize, reward or wager to come within the meaning of this section.” (Emphasis added.)

The trial court, at the conclusion of the appellant’s case granted a motion for a directed verdict made on behalf of Martin and his three passengers. The court stated in part:

“I have no problem with Hall driving at a high rate of speed, but it seems to me that that is not enough. It seems to me the mere fact that they are friends, it seems to me the mere fact that both were exceeding the speed limit, none of these even taken together in my judgment amounts to anything other than surmise and speculation as to the existence of a race.”

Appellant vigorously contends that the court erred in granting the motion and also in later specifically instructing the jury that “there was no legally sufficient evidence in this case that there was a race.”

It is a well-settled rule, applicable in Maryland, that the racing of motor vehicles on a public highway is negligence. All who engage in a race are liable for injury sustained by a third person as a consequence of the race, irrespective of which racing car actually inflicted the injury or of the fact that the injured person was a passenger in one of the cars. Haddock v. Stewart, 232 Md. 139, 142, 192 A. 2d 105, 107 (1963). See United Railways & Electric Co. v. Perkins, 152 Md. 105, 136 A. 50 (1927).

In Haddock, the court affirmed the granting of a directed verdict, on the issue of racing, in favor of the defendant at the close of the plaintiffs case. The plaintiff-appellant was proceeding north on State Route 5 toward Waldorf in Charles County, directly behind another vehicle driven by a Lieutenant Commander Baker; each car was running at about 45 m.p.h. As the two cars proceeded around a curve, a southbound vehicle, driven by Thomas Hill, traveling in excess of the 50 m.p.h. limit, swerved out of control and struck both the Baker and Haddock cars. As a result of the accident, Baker and Hill were killed. Haddock contended that the defendant-appellee, Stewart, had engaged in a race with Hill. Stewart was behind the Hill car at the time of the accident. Stewart testified that Hill, at several points along the highway, had pulled alongside his vehicle, on the 2-lane road, and signaled him to race. Each time Hill would speed up in anticipation of Stewart’s response. However, Stewart emphatically denied accepting the challenge and insisted that he kept within the 50 m.p.h. speed limit.

In an attempt to impeach Stewart, appellant’s counsel introduced a statement allegedly signed by Stewart a week after the accident, in which he admitted to traveling between 60-70 m.p.h. Also, at trial, Stewart admitted passing several cars along the route traveled by both Hill and himself. As stated by Judge Sybert, the sole question raised by the appeal was “whether there was sufficient evidence, viewed in the light most favorable to the plaintiff, that the defendant Stewart gave assistance or encouragement to the tortious conduct of the deceased, Hill, so as to have warranted the submission of the issue to the jury.” 232 Md. at 142, 192 A. 2d at 107.

In affirming the trial court’s action, the court adopted in part the language of the trial judge, Macgill, J:

“All you have really is some evidence of excessive speed or speed greater than the speed limit on the part of Mr. Stewart at certain points along the highway. I notice reference was constantly made to the fact that there was no occasion unless Mr. Stewart was engaged in racing for him to pass the other cars. ... Go out on the highway, any time you want, you see cars speeding up and going sixty to pass other cars; they’re not necessarily engaging in a race. . . . There isn’t any direct evidence that he [encouraged Hill to race]. It may be a suspicious matter. We can’t let this matter go to the Jury to speculate. . . .” 232 Md. at 143-44, 192 A. 2d at 107-08.

In the instant case, appellant relied at trial upon an asserted tendency of teenagers to engage in racing and pointed to the presence in the Hall vehicle of a tachometer and that it was equipped with “lifters.” At trial appellant also emphasized the longstanding relationship between the seven youths and placed great weight, as she does on appeal, upon the deposition testimony of Mr. Kilgore. It is our conclusion, viewing the evidence as we must in the light most favorable to the appellant, that what was presented at trial constituted at most evidence of excessive speed and perhaps reckless driving on the part of appellee Hall, the operator of the red Mustang. (We observe, however, that the jury found no negligence on his part and, indeed, awarded him compensation for personal injuries and property damages against the appellant.) Unlike the facts in Haddock, supra, we do not have a situation of conceded racing on the part of one vehicle. In this case, there. is no evidence of a speed contest other than Kilgore’s exclamation that “automatically I took it for granted that he was racing with car number one.” This statement with respect to racing was obviously a conclusory, “knee-jerk” type reaction and is not legally sufficient evidence of “challenge and response.” See Bierczynski v. Rogers, 239 A. 2d 218 (Del. 1968); Nelson v. Nason, 177 N.E.2d 887 (Mass. 1961). As stated by the New York Supreme Court, Appellate Division, in Finn v. Morgan, 362 N.Y.S.2d 292, 298 (1974),

“Speeding and racing are not concomitant acts, and proof of speeding alone did not prove a race. The gist of racing is competition and the facts must support an inference of some agreement to race.” (Emphasis added.)

In support of her argument, appellant relies on the cases of Kres v. Maryland Automobile Insurance Fund, 273 Md. 289, 329 A. 2d 44 (1974); Nelson v. Nason, supra; Commonwealth v. Looser, 156 A. 2d 905 (Pa. 1959); Bybee v. Shanks, 253 S.W.2d 257 (Ky. 1952). Kres, while it dealt with the racing question, was concerned with whether the plaintiff had presented sufficient evidence of a speed contest to state a “cause of action” to sue the Fund, within the meaning of Art. 48A, § 243 H., Md. Code (1957, 1972 Repl. Vol.), and is not apposite. In detailing the quantum of evidence needed to state a “cause of action,” Judge Digges wrote, it is “not the presentation of such evidence as would meet every probative test of a prima facie negligence cause.” 273 Md. at 292, 329 A. 2d at 46. In order to withstand a motion for directed verdict, the evidence must amount to more than a “mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture.” Brock v. Sorrell, 15 Md. App. 1, 6, 288 A. 2d 640, 643 (1972), quoting Fowler v. Smith, 240 Md. 240, 247, 213 A. 2d 549, 554 (1965); Md. Rules of Procedure, Rule 552. The out-of-state cases relied upon by appellant were dealt with in Haddock, and it is sufficient to note that in each case there was either direct evidence of participation or encouragement or an ample record to support a reasonable inference of such participation. We find no error in the trial court’s rulings.

II Alleged Liability of Appellee Becker

Our holding with respect to the racing issue disposes of appellant’s contention that appellee Becker was not entitled to a directed verdict since he was a participant in the alleged race.

A second asserted ground of liability on the part of Becker, also lacking in substance, is that he “obtained” liquor for the minor, Dennis Hall, in violation of Maryland Code, Art. 27, § 401 (1957, 1967 Repl. Vol.). The evidence upon which appellant presumably relies is Becker’s own testimony that he obtained a 6-pack of beer from his mother’s refrigerator that morning and placed some of it in Hall’s Mustang. Appellant contends that it was “under the influence of this beer that Hall operated his car wildly and in violation of six separate motor vehicle statutes. . . .”

The foregoing statutory provision then read in pertinent part:

“Any person who obtains any spirituous or fermented liquors from any other person licensed to sell the same for any minor or person under twenty-one years of age, knowing him to be such, to be drunk by said minor or person under twenty-one years of age, shall be deemed guilty of a misdemeanor____”

In our judgment the trial court correctly found the above statute inapplicable. There was no evidence that Becker obtained the beer from a licensee for a minor as the statute provides. Furthermore, Becker’s conduct in providing Hall with beer could not have been the proximate cause of the accident, even if the statute were applicable. See States v. Hatfield, 197 Md. 249, 254-55, 78 A. 2d 754, 756-57 (1951). Beyond this, the short answer to Mrs. Walker’s contention is that the jury found Hall, notwithstanding evidence of some drinking, to be without fault.

Ill Alleged Errors in the Trial Court’s Charge

a) Contributory Negligence as a Defense to “Willful and Wanton Misconduct or Reckless Disregard” of Human Life.

Appellant contends that the trial court erroneously failed to charge the jury that finding the appellant guilty of contributory negligence would not bar her recovery if the jury determined the appellees’ conduct to constitute “willful and wanton misconduct or reckless disregard.” See Denny v. Seaboard Lacquer, Inc., 487 F. 2d 485 (4th Cir., 1971). However, the jury found by its special verdict that Hall was not guilty of any negligence. Logically, any error in failing to instruct as to “willful or wanton misconduct” is rendered harmless by the jury’s determination that no simple negligence existed. See Franceschina v. Hope, 267 Md. 632, 645, 298 A. 2d 400, 407 (1973); see also Havens v. Schaffer, 217 Md. 323, 327, 142 A. 2d 824, 826 (1958).

b) Failure to Instruct on the Issue of Intoxication

The evidence at trial disclosed that Hall had consumed two beers prior to the accident and that beer cans were found by Trooper Myrick in Hall’s Mustang. Appellant contends that the failure of the trial judge to instruct the jury on the provisions of Maryland Code, Art. 66 V2, § 11-902, relating to driving while “under the influence,” was error.

Appellant overlooks the significance of Trooper Myrick’s testimony that he smelled alcohol on Hall’s breath yet concluded that “I didn’t feel that he had enough to be charged with it....” A similar issue was before the Court of Appeals in Alston v. Forsythe, 226 Md. 121, 172 A. 2d 474 (1961). In Alston, the court affirmed a judgment for the defendant despite the trial court’s actions in not instructing the jury concerning the provisions of the predecessor section of Art. 66 V2, § 11-902, under circumstances where the defendant had admitted to drinking two beers prior to the accident. The investigating officer in Alston, as in the instant case, noted the defendant’s drinking yet failed to charge him with a violation. The court stated:

“There was no evidence to show that the defendant was driving his automobile while in a condition produced by ‘drinking to the extent of probably affecting one’s judgment and discretion or probably affecting one’s nervous system to the extent that there is a failure of normal coordination, although not amounting to intoxication.’ ” 226 Md. at 132, 172 A. 2d at 479.

While the jury was free to consider the evidence of Hall’s drinking and the officer’s findings, we do not consider the failure to instruct as error. As Chief Judge Bruñe stated in Alston:

“We find no error in the court’s not referring in the charge to the defendant’s having had some beer in the amount and at the time shown by the evidence or in omitting any instruction based upon the effect of driving while under the influence of intoxicating liquor.” 226 Md. at 134, 172 A. 2d at 480.

c) Trial Court’s Characterization of the Consolidated Suits as Based on Negligence

The trial judge, in his charge to the jury, characterized the consolidated actions as being premised on negligence. Appellant contends that this statement was erroneous because it failed to take into account her allegations that the appellees were guilty of “willful and wanton misconduct and reckless disregard” for human life. When this excerpted instruction is put into the context of the court’s entire charge, it can be seen that the court was discussing the three personal injury actions, not merely the appellant’s suit. It should be noted that both Becker and Walczak’s claims against the appellant were indeed founded upon acts of simple negligence. While Mrs. Walker’s case did involve the further allegation of “wanton and willful misconduct,” this fact was expressly mentioned by the trial, judge in a later instruction concerning punitive damages. In discussing Mrs. Walker’s claim for exemplary damages, the court stated, “if a plaintiff is injured or damaged as a result of extraordinary or outrageous conduct, which, in your opinion, constitutes a wanton or reckless disregard for human life ... [she] may be awarded [punitive damages] . . . .” Under these circumstances, we find appellant’s claim devoid of merit.

d) Duties of a Left-Turning Vehicle

Appellant predicates error upon two of the court’s instructions concerning the duties of a left-turning vehicle. The first instruction was a paraphrase of former Art. 66V2, § 225B, now Art. 66V2, §. 11-601 (2), involving the duty of a left-turning vehicle to approach the intersection “in that portion of the right half of the roadway nearest the center line thereof and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.” The appellant expressly stated at trial that she “cut over into the left hand (eastbound) [of Pfeffers Road] to try to get out of his way.” Under these circumstances, we hold that the above instruction was supported by the evidence.

Additionally, appellant asserts error in the failure of the trial judge to give a requested instruction with respect to the obligations of a driver attempting to turn left at an intersection to observe oppositely-bound traffic and the reciprocal duties of the latter. Our review of the record establishes that the court’s charge substantially covered the requested instruction and we therefore find no error. See Whoolery v. Hagan, 247 Md. 699, 708, 234 A. 2d 605, 610 (1967).

e) Duties of a Vehicle Traveling Upon a Highway Controlled by a Stop-Sign

Although the appellant unequivocally stated that she had been traveling north on Route 7 for several miles prior to her attempted left-turn to Pfeffers Road, the trial judge gave an instruction concerning the duty imposed on a vehicle traveling upon a highway controlled by a stop-sign. The facts are, as disclosed by the testimony of Trooper Myrick, that Pfeffers Road is almost directly opposite Jones Road, the latter being only a few feet north, and although there is no stop-sign on Route 7, Jones Road traffic is controlled by such a sign.

Both Hall and Walczak testified that when they first observed the Walker vehicle it appeared to be “coming straight across” the roadway, ie., from Jones Road into Pfeffers Road. Additionally, Hall’s deposition, read by appellant’s counsel at trial, disclosed that Hall had told the officer investigating the accident, shortly after its occurrence, that Mrs. Walker’s car apparently came across Route 7 from Jones Road. The appellant testified that she “didn’t come out of Jones Road, as the trooper had reported in his accident report.” On the basis of this conflicting testimony, we find the challenged instruction unexceptionable.

f) Proximate Cause, Use of Word “May”

In the course of the court’s instructions, the subject of proximate cause was, of course, covered and indeed two illustrations were used, one applicable to appellant and the other to Dennis Hall. (The court made it clear that no emphasis for or against either driver was intended.) With respect to Hall, the court stated that if the jury “find[s] Dennis Hall was operating his vehicle at a greater speed than was reasonable and prudent . . . and that such speed was negligence that directly caused the collision,” without any contributory negligence on the part of Mrs. Walker, “then you may find that excessive speed is a proximate cause of the accident.” (Emphasis added.)

As a converse example the court instructed that “if you find that Eleanore Walker proceeded across the northbound [sic] lane of Route 7 at a time when the approaching vehicle of Dennis Hall’s was in such proximity that there would be imminent danger of an accident and that Mrs. Walker’s act of crossing the northbound [sic] lane ... was negligence that directly caused the collision . . . and . . . the plaintiff Hall’s damages and injuries,” without any contributory negligence on his part, “then you may find that the making of a turn under those circumstances, is a proximate cause of the accident.” (Emphasis added.)

Appellant here contends that the court’s instruction “set up all the elements requiring a verdict for appellant, but then contradictory and in effect [sic] told the jury that they had the permission or discretion by the use of the word ‘may’, to ignore the law.”

We observe that the court went on in the instructions to inform the jury that there “may be more than one proximate cause of an accident” and that what had been related to the jury by way of example applied with equal force to the statutory rules of the road previously considered. Specifically, the court pointed out that if the jury should find that one or more of the drivers violated any of the rules of the road and that such violation was a proximate cause of the accident, “then you should answer the issues according to your findings.”

In this entire context we find totally without substance appellant’s claim of reversible error in the employment by the trial court of the word “may.”

g) Instruction Relating to Damages

Appellant also contends that the court erred in its instruction relating to punitive damages. In the light of our disposition of appellant’s claims relating to liability this assertion of error becomes moot. See Wolf v. Levitt & Sons, Inc., 267 Md. 623, 298 A. 2d 374 (1973); Green v. Washington Suburban Sanitary Commission, 259 Md. 206, 269 A. 2d 815 (1970).

IV Alleged Improper Allocation of Peremptory Challenges

Prior to the selection of the jury the trial court conferred with counsel concerning the number of peremptory challenges to be allocated in this multiple party trial. The court grouped the respective interests involved and also made provision for two alternate jurors. As a result, appellant received five peremptory challenges in her capacity as a plaintiff and five as a defendant. The defendants below and the other parties plaintiff in the consolidated actions received a combined total of twenty strikes. It is now contended, objection having been made below, that appellant was denied “due process and equal protection” on the ground that the trial court granted to appellees an unfair advantage in that they received on a combined basis twenty peremptory challenges whereas appellant received ten.

It is, of course, elementary that under the Maryland Rules of Procedure, Rule 543, each party in a civil action may peremptorily strike, without cause, four persons; and that several defendants or several plaintiffs are considered as a single party. Rule 543 a. 3. Additional peremptory strikes are also allowed under prescribed circumstances. Thus, Rule 543 a. 4. provides:

“Additional Peremptory Strikes — When Allowed.
Whenever it appears that the trial of an action by a jury involves two or more plaintiffs or two or more defendants having adverse or hostile interests, or involves multiple parties and claims, including third-party claims, whether in a single action or two or more actions consolidated or consolidated for trial, the court may allow additional peremptory strikes, from additional lists of jurors to be prepared by the clerk, but no party shall be allowed more than four such strikes.” (Emphasis added.)

In our judgment, the trial court committed no abuse of discretion in his allocation of the peremptory strikes. It was, as already noted, a consolidated proceeding involving not only appellant’s action, in which she was also a defendant pursuant to Hall’s counterclaim, but there were also involved the independent actions of Hall, Becker and Walczak, as parties plaintiff, in which appellant and Hall were defendants. Although appellant contends in her brief that “multiple parties with common interests must exercise their peremptory challenges collectively,” she fails to recognize the essential nature of this proceeding as a consolidated trial of three separate actions and that the plaintiffs Hall, Becker and Walczak could not be deprived by the fact of consolidation of their entitlement as plaintiffs to four peremptory strikes each. Similarly, we think the court acted properly in regarding Martin and his passengers as a separate group entitled to four strikes. Furthermore, in support of her assertion of unequal treatment, appellant cites no concrete element of prejudice in the jury selection process. Specifically, no record was made by her below with respect to any panel member or members whom she was prevented from striking. Indeed, there is nothing before us to indicate the extent to which the peremptory strikes of any of the parties were exercised. In this state of the record, appellant’s bald assertion that her constitutional rights were violated must be rejected.

V Denial of Motion for New Trial

One of the grounds asserted by appellant in her motion for new trial was that certain members of the jury had overheard statements at numerous bench conferences. In denying Mrs. Walker’s motion, Judge Brannan disclosed that he had personally contacted, by telephone, the twelve panel members and one alternate in an attempt to discover if, in fact, any such conversations were overheard. He expressed complete confidence, as a result of his telephone discussions with the members of the jury, that no juror actually heard any substantive discussion at the bench; and such conferences were not referred to during the jury’s deliberations. Appellant contends that the trial judge’s action in communicating with the individual jurors was highly improper and constituted grounds for granting a new trial.

We begin with the firmly established rule that the granting or denial of a motion for new trial is a matter within the sound discretion of the trial court. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 249, 272 A. 2d 1, 4 (1971). The trial court’s decision will not be disturbed on appeal where it appears that the lower court fairly expressed its discretion and in the absence of “the most compelling reasons.” Mack Trucks, Inc. v. Webber, 29 Md. App. 256, 270, 347 A. 2d 865, 873 (1975). The trial judge’s discretion extends to matters concerning juror misconduct or other such irregularity in the conduct of others which may affect the jury. See Kasten Construction Co. v. Evans, 260 Md. 536, 548-49, 273 A. 2d 90, 96 (1971); Safeway Trails, Inc. v. Smith, 222 Md. 206, 159 A. 2d 823 (1960).

Appellant’s motion was bottomed upon the affidavits of Lois W. Baker, appellant’s daughter, Michael P. Crocker, appellant’s counsel, and the appellant. Each affidavit recited that at various stages of the proceedings, from their respective positions in the courtroom, these affiants were able to overhear certain “words” and “bits of conversation” emanating from the bench conferences. Additionally, each affiant claimed that from the jurors’ expressions and gestures, the affiants were able to conclude that the jury was, in fact, overhearing parts of the bench conferences.

Our review of the record reveals that at various times during transcribed bench conferences, while the jury was present in court, the trial judge or one of the attorneys had occasion to make reference to loudness of voice. However, in each such instance, the trial judge instructed counsel to lower their voices. Also, at the hearing on appellant’s new trial motion, Judge Brannan confirmed that at several stages of the proceedings his concern over the proximity of the jury box to the bench prompted him to order the bailiff to take a position close to the jury during bench conferences. He stated that on each occasion the bailiff reported that the discussions at the bench were not audible to the jury.

While we believe the trial judge’s actions in telephoning each juror, without notice to or consent of counsel, was inadvisable and, under different circumstances, could very well mandate a new trial, we find no reversible error here. As we .have previously indicated, the trial judge was keenly aware of the problems during trial and adopted certain safeguards to prevent the bench conferences from reaching an audible level from the jury box. Most importantly, a fair reading of Judge Brannan’s opinion denying the new trial motion discloses that he did not rely upon his personal communications with the jurors in reaching his decision but rather that his telephone interrogations merely confirmed a conclusion already reached. In addition, appellant’s affidavits make no showing that any one or more members of the jury heard any particular statement, much less anything that could be deemed prejudicial. In the absence of such a showing and upon the facts and circumstances involved, we find no abuse of discretion in the denial of appellant’s motion for a new trial. Appellant’s reliance upon Wash., B. & A.R.R. v. Kimmey, 141 Md. 243, 118 A. 648 (1922) and Beasley v. State, 271 Md. 521, 318 A. 2d 501 (1974), is misplaced.

Judgment affirmed; appellant to pay the costs.

      . Appellees, Dennis George Hall and George Henry Becker, were in the military service, later assigned outside the continental limits, and this accounts for a significant part of the delay.

      . The father was in due course directed out, there being no evidence of an agency relationship.

      . Becker apparently opted for the relative seclusion of Hall’s car, relinquishing his own vehicle to Martin and the three other young men.

      . The names of the passengers, who are also appellees, are: Schuler, DeNicolis and Kadlec. The parents of certain of the defendants were also named. Becker’s girlfried, Miss Walczak, was not included as a defendant. A demurrer to the amended declaration was sustained with leave to amend by order of Judge Kenneth C. Proctor on the ground, among others, that allegations of willfulness on the part of Martin’s passengers or of encouragement and assistance in the alleged car racing were necessary. A second amended declaration was filed on September 27, 1973 against the same individuals.

      . Appellees’ motion to consolidate was granted by order of Judge Proctor on February 8,1972.

      . Sharon Walczak was awarded $1,500 for her personal injuries and her father, Joseph Walczak, special damages of $1,000.

      . This provision has been revised and is now Art. 66 ½, § 11-1116 (1957, 1970 Repl. Vol.).

      . Appellee Becker was held into the case because appellant also sought to hold Becker liable, as hereinafter noted, not only as a participant in the race but for an alleged violation of Art. 27, § 401, which prohibits obtaining liquor for a minor. Becker’s motion for a directed verdict was granted however, at the close of all the evidence.

      . This provision, as amended, now appears in 1976 Repl. Vol., 1976 Supplement.

      . Becker contends in his brief that this point was not alleged in appellant’s second amended declaration and is not properly before us. We note, however, that the evidence with respect to Becker’s providing Hall with beer came in without objection. See Brazerol v. Hudson, 262 Md. 269, 275-76, 277 A. 2d 585, 588-89 (1971).

      . The 1974 amendment to § 401 changes the proscribed age from 21 to 18 years for beer or light wine.

      . For the same reason, we find it unnecessary to consider appellant’s claim of error in the court’s refusal to permit the introduction into evidence of appellant’s attorney’s fees and costs of litigation and of the insurance policies covering the respective appellees. Even if, however, these claims were involved in our determination of this appeal, we would find them to be without substance.

      . Initially, appellees, Hall, Becker and Walczak, each received four peremptory strikes for a total of twelve; an additional four strikes were allowed to Martin and his passengers as a group. One additional strike was allocated to the aforementioned in connection with the selection of two alternate jurors. This made a total of twenty. Appellant was allocated four as plaintiff and four as a defendant and was also accorded two additional strikes for the alternate jurors. This made a total of ten.

      . At times, the reference was to the tone of appellant's counsel.