text:
    THEODORE JOHN HERILLA v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
    [No. 1,
    September Term, 1977.]

      Decided October 14, 1977.

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

      M. R. Rohrback, with whom was Edward A. Derenberger on the brief, for appellant.

      C. Laurence Jenkins, Jr., Assistant City Solicitor for Baltimore City, with whom were Benjamin L. Broion, City Solicitor, and Richard M. Hartman, Chief City Solicitor, on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

If this opinion were being penned by Sir Arthur Conan Doyle (1859-1930), it probably would be titled, “The Case of the Wrong House.”

Were it not for the tragedy that has befallen the appellant, Theodore John Herilla, and his family, the facts from which the matter sub judice arose might be considered humorous, something one would find in a television situation comedy. To the Herillas, however, the extensive damage inflicted upon their property, which rendered it unfit, without extensive repairs, for human habitation, is no laughing matter.

Initially, this appeal asked whether the Mayor and City Council of Baltimore (City), through its agents, acting on the erroneous belief that it had acquired a certain property, may enter upon that property, remove chattels and fixtures therefrom, damage the interior of the property, yet escape liability by invoking the legal concept of governmental immunity.

The Superior Court of Baltimore City answered the question in the affirmative when it dismissed, on preliminary objection, the suit of Herilla against the City.

Subsequent to oral argument in this Court on the question of the City’s refuge behind the barrier of governmental immunity, we were advised in a letter from counsel for the City that it had discovered that its reliance upon the defense of governmental immunity was possibly misconceived. The City now states that although it originally believed the damage to the Herilla property was occasioned during the carrying out of an urban renewal project, it now knows that no such project was involved. The City was simply widening a street. Why it took the City over two (2) years to ascertain that the happenings in the instant case did not arise from the scope of an urban renewal or other governmental function is not explained.

The City says:

“These new facts, we believe, place an entirely different aspect upon the City’s Motion to Dismiss, upon which ... [the hearing judge] originally ruled, and, in addition, may well affect the legal outcome of the case.
Although the City’s position may still well be that there is immunity in this instance, we believe that these additional facts should have been brought to the attention of . . . [the hearing judge], for his determination.
Therefore, we respectfully request that . . . [the Court of Special Appeals] remand this matter to the lower court, based upon these new facts, for additional pleadings on the subject of immunity, and for a new determination by the lower court.”

We shall remand the case, but not for the reasons advanced by the City, as we have an entirely different view on the question of the applicability of the doctrine of governmental immunity.

Before addressing the legal issues involved in this matter, we shall briefly recount the uncommon factual situation from which this litigation arose.

The City acquired a five (5) foot wide strip of Herilla’s land in order to widen Hollins Ferry Road. Sometime between May 29, 1975 and June 28, 1975, a crew of City employees, believing the City had obtained the entire property of Herilla, entered his house and removed several doors, a stained glass window, and a chandelier as well as several storm windows. Herilla alleged that thé walls, ceilings, windows and floor were “negligently destroyed” by the City employees, apparently in removing the fixtures. In addition, Herilla claimed that “a radiator, sliding wooden doors, electrical wiring, and a gas stove were damaged.”

When the City crew went upon the Herilla property, it was, by a set of fortuitous events, unoccupied. That happenstance occurred because Herilla rented the property to another while Herilla was “overseas.” Upon learning of his transfer “back to the [Sjtates,” he notified the tenant to vacate the property in order that Herilla and his family could move in when they reached Maryland. The hiatus in occupancy occasioned by the tenant’s vacating and prior to Herilla’s return is when the damage to the property took place.

Herilla’s discovery of the damaged property undoubtedly produced surprise coupled with a complete change of plan. Believing the damages to be the result of vandalism, he reported the incident to the Baltimore City Police and moved his family into the home of his in-laws. Thereafter, he purchased another home, thus, obligating himself to make mortgage payments thereon. At the same time, he was required to continue mortgage payments on the damaged property.

Aggrieved by the damage to his property and the expense to which he was put in acquiring a new home, Herilla sought redress. He sued the City in a multi-count declaration for “negligence,” “trespass,” “negligent trespass,” “nuisance,” and “conversion.” Placing an obviously inflated value upon the property, Herilla asked $807,500 compensatory and $1,500,000 punitive damages. The declaration was met by a preliminary objection raising the defense of governmental immunity. Md. Rule 323 a 9.

At oral argument, we were told that all the fixtures have been returned to Herilla except the stained glass window.

GOVERNMENTAL IMMUNITY

The law is well established in Maryland, as in virtually all other common law jurisdictions, that there can be no recovery against a municipal corporation for injuries occasioned by its negligence in the exercise of functions which are essentially governmental functions. E. Eyring & Sons Co. v. Mayor and City Council of Baltimore, 253 Md. 380, 382, 252 A. 2d 824, 825 (1969); Irvine v. Montgomery County, 239 Md. 113, 117, 210 A. 2d 359, 361 (1965); Fowler v. Bd. of County Comm'rs, 230 Md. 504, 507, 187 A. 2d 856, 858 (1963); cert. denied, 375 U.S. 845, 84 S. Ct. 98, 11 L.Ed.2d 72 (1963); rehearing denied, 375 U. S. 936, 84 S. Ct. 334, 11 L.Ed.2d 268 (1963); Thomas v. Prince George’s County, 200 Md. 554, 557-60, 92 A. 2d 452, 453-54 (1952); Cox v. Anne Arundel County, 181 Md. 428, 433, 31 A. 2d 179, 182 (1943); Mayor and City Council of Baltimore v. Blueford, 173 Md. 267, 271-72, 195 A. 571, 574 (1937).

The reason that governments are immune from suit by individual citizens was set out by the late Justice Oliver Wendell Holmes in Kawananakoa v. Polyblank, 205 U. S. 349, 353, 27 S. Ct. 526, 527, 51 L. Ed. 834, 836 (1907). Mr. Justice Holmes penned:

“Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. (Leviathan, c. 26, 2.) A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”

While, as Mr. Justice Holmes noted in Polyblank, there is some doubt as to the source of sovereign immunity, that doctrine does appear in D. Pickering, I The Statutes at Large from Magna Carta, to The Hth Year of K. Edward III, inclusive (1962). Mr. Pickering has translated 3 Edward I, ch. L. (1275) as follows:

“And forasmuch as the King hath ordained these things unto the honour of God and holy church, and for the commonwealth, and for the remedy of such as be grieved, he would not that at any other time it should turn in prejudice of himself, or of his crown; but that such right, as appertains to him, should be saved in all points.”

The Parliamentary Act of 1275 was transported to the Province of Maryland by the “Ark” and the “Dove” in the form of numbered paragraph X of the Charter presented by King Charles I to Caecilius Calvert, Baron of Baltimore. Subsequently, when Maryland declared its independence from the British Crown, it preserved to its people the common law of England “and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six. . . .” Constitution of Maryland, Declaration of Rights, art. 5.

The dogma that a municipality, in performing an essentially governmental function, can do no wrong for which it is answerable by way of damages continues with us today as a viable part of our case law in a myriad of decisions by the Court of Appeals. Notwithstanding the multitude of such court opinions, Herilla opines that the governmental immunity doctrine is a judicial creation and should be judicially destroyed and laid to rest. In short, Herilla urges us to bite the bullet and wipe from the judicial slate a doctrine that is at least 702 years old. We decline to do so. If the cloak of governmental immunity is to be removed from the shoulders of the State and its sub-divisions, that action should be taken by the legislature, not the Courts. Board of Trustees of Howard Community College v. Ruff, Inc., 278 Md. 580, 366 A. 2d 360 (1976). There is, of course, sound reason why the legislature is the proper division of government to determine whether to abolish sovereign immunity. It is that body that will be called upon, through the imposition of taxes, to pay any judgment rendered against the sovereign.

PROPRIETARY OR CORPORATE FUNCTION

The origin of the proprietary theory does not seem to be as shrouded in historical fog as that of governmental immunity. One may glean from the County Comm’rs of Anne Arundel County v. Duckett, 20 Md. 468, 83 Am. Dec. 557 (1864) that Maryland followed the proprietary rule laid down by Chief Judge Black in Erie City v. Schwingle, 22 Pa. St. 384 (1853) and Chancellor Kent in Bartlett v. Crozier, 17 Johns. 439, 8 Am. Dec. 428 (N.Y. 1820). The proprietary theory is, we think, an innovation of American courts. England did not subscribe to such a rule, Russell v. Men of Devon, 2 TR. 669, 100 Eng. Rep. 359 (1788), although the English court was careful to point out that Devon was not a corporation and had no private funds from which to pay a judgment.

Municipalities, as distinguished from the State itself, have been held liable for torts committed by them or by their officers, agents, and employees when they are exercising private or corporate powers. In those cases, an exception has been cut from the cloak of immunity. One such instance is street maintenance which is classified as a proprietary function for which the municipality is responsible if it carries out its obligation negligently or negligently fails to care for its streets. Thomas v. Prince George’s County, supra. The logic of such a ruling eludes us, just as it has the Court of Appeals. See Thomas v. Prince George’s County, 200 Md. at 559, 92 A. 2d at 454; Mayor and City Council of Baltimore v. Blueford, 173 Md. at 273, 195 A. at 574. Nevertheless, in Blueford, supra, Judge Offutt, writing for the Court, expressed the view the highways-street exception followed by the “great weight of authority” is “too firmly embedded in our law to be disturbed now.” Cox v. Anne Arundel County, 181 Md. at 431, 31 A. 2d at 181. To like effect, see Lane v. Minn. State Agricultural Soc., 62 Minn. 175, 177, 64 N. W. 382, 383 (1895) wherein the Court said:

“The liability of cities and other municipal corporations created by special, charters for negligence in the care of their streets is an illogical exception . .., but the rule itself is too well settled, by the almost unanimous agreement of all of the authorities, to be now questioned or discussed. Snider v. City of St. Paul, 51 Minn. 466, 53 N. W. 763 [1892].”

The better course of action might well be to wipe away the illogical distinction between proprietary functions and governmental ones. Why the maintenance of city streets is a proprietary function while the movement of traffic upon those self-same streets is a governmental function, seems to defy reason.

In any event, the law is clear that when performing its proprietary function, a municipality is required to exercise ordinary care. “It is no part of its duty, as a municipal corporation, to engage in a purely business or commercial enterprise. When it seeks and obtains from the Legislature permission to engage in such an enterprise . ..”, Henry v. City of Lincoln, 93 Neb. 331, 334, 140 N. W. 664, 665 (1913), it is acting in a purely private business capacity, outside its functions and duties as a municipal corporation, “and is bound'by all the rules of law and procedure applicable to any other private corporation or person engaged in a like enterprise.” Id. at 334, 140 N. W. at 666.

Notwithstanding the private, as opposed to governmental nature of an enterprise, a municipality’s immunity is in force where the specific act out of which the injuries arose is governmental in nature. City of Macon v. Powell, 133 Ga. App. 907, 213 S.E.2d 63 (1975).

The distinction between “governmental” and “proprietary” functions, as applied to the legitimate activities of governments, serves as a basis for determining whether the immunity doctrine protects a municipality from liability for a tort committed by one of its servants. Fed. Land Bank v. Bd. of County Comm’rs, 368 U. S. 146, 82 S. Ct. 282, 7 L.Ed.2d 199 (1961). Unfortunately, the intermingling of the two functions has led to abstruseness in drawing the boundary line which separates the two. E. Eyring & Sons Co. v. Mayor and City Council of Baltimore, supra; Mayor and City Council of Baltimore v. Blueford, supra. See also E. McQuillan, 18 Municipal Corporations § 53.29 (11th ed. 1969). “The rules sought to be established [in determining whether a given function is governmental or proprietary] are as logical as those governing French irregular verbs.” E. Eyring & Sons Co. v. Mayor and City Council of Baltimore, 253 Md. at 382, 252 A. 2d at 825, quoting Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test, 22 Va. L. Rev. 910 (1936).

There is, as Blueford makes clear, no universally accepted test for determining when an act is governmental or private in nature. 173 Md. at 275-76, 195 A. at 576. The question is resolved by the public policy prevailing in the particular jurisdiction where it arises. Id.

Paraphrasing Blueford, 173 Md. at 276, 195 A. at 576, we glean the test that is to be applied in this case to be:

Is the act for the common advantage of all, without special corporate gain or monetary profit, devoid of any ingredient of private interest, and does it improve the public health and welfare?

If the answer to the test question is in the affirmative, the act is governmental in nature, and immunity applies. Conversely, if the answer is in the negative, it is a proprietary function and immunity may not be successfully pleaded. See E. McQuillan, 18 Municipal Corporations § 53.29 (11th ed. 1969); E. Eyring & Sons Co. v. Mayor and City Council of Baltimore, 253 Md. at 383, 252 A. 2d at 825.

Applying the test to the case now before us results in our determining that the trial court was correct in its judgment that “in the process of implementing an urban renewal ordinance the City was pursuing a public purpose accomplishment of something for the public good ...” and ergo, was fulfilling a governmental function. If this were all there is to be considered, we would stop here and affirm, but there is another compelling and, perhaps, overriding issue to be decided.

OTHER EXCEPTIONS TO MUNICIPAL IMMUNITY

What the trial judge apparently lost sight of in the case at bar is that the doctrine of municipal immunity is not absolute. It is subject to certain exceptions and limitations. The doctrine of immunity is malapropos where “the injury complained of is the taking or damaging of private property for public use without compensation,” E. McQuillan, 18 Municipal Corporations § 53.24b (11th ed. 1969); 57 Am. Jur., Municipal, School and State, Tort Liability § 53, and in cases dealing with damage to property but without the actual taking thereof. Id.

The Fourteenth Amendment to the Constitution of the United States mandates a State shall not “deprive any person of life, liberty, or property, without due process of law . ...” U.S. Const. Amend. XIV, § 1. The federal constitution proscribes that invasion of the private rights of property. Neither the State itself nor any of its agencies or political sub-divisions, including municipal corporations, are allowed to establish or maintain a nuisance which causes appreciable damage to private property without being answerable for it. E. McQuillan, 18 Municipal Corporations § 53.24b (11th ed. 1969):

“To the extent of the damage done to such property, it is regarded and dealt with as a taking or appropriation of the property, and it is well understood that such an interference with the rights of ownership may not be made or authorized except on compensation first made pursuant to the law of the land.”

Accord, Baltimore v. Sarkett, 135 Md. 56, 107 A. 557 (1919); Taylor v. Mayor and City Council of Baltimore, 130 Md. 133, 99 A. 900 (1917); Baltimore City v. Fairfield Improvement Co., 87 Md. 352, 39 A. 1081 (1898).

A “nuisance” is defined as anything that works or causes injury, damage, hurt, inconvenience, annoyance, or discomfort to one in the legitimate enjoyment of his reasonable rights of property, or which renders ordinary use and occupation by a person of his property uncomfortable to him. See Sherwood Bros., Inc. v. Eckard, 204 Md. 485, 105 A. 2d 207 (1954); Hart v. Wagner, 184 Md. 40, 40 A. 2d 47 (1944). Accord, District of Columbia v. Totten, 5 F. 2d 374 (D.C. App. 1925), cert. denied, 269 U. S. 562, 46 S. Ct. 21, 70 L. Ed. 412 (1925); Reese v. Wells, 73 A. 2d 899 (D.C. Mun. App. 1950).

A municipal corporation is liable for damage to real estate as a result of a nuisance created or maintained by the municipality, even in the exercise of governmental functions. If a municipality, in attempting to perform a governmental function, as in the case sub judice, commits a nuisance by which an adjacent landowner is injured in the enjoyment of his owership, he may assert an action for damages. Baltimore City v. Fairfield Improvement Co., supra; District of Columbia v. Totten, supra.

The Court of Appeals stated, in Taylor v. Mayor and City Council of Baltimore, 130 Md. at 148, 99 A. at 906:

“In this State it is well settled that when a municipal corporation has the power to abate a nuisance it is liable to persons injured in consequence of its failure to exercise such power, . . . and it would be strange if notwithstanding its liability for failure to abate a nuisance created by another it could with impunity commit one itself.” (Citations omitted.)

See Baltimore v. Sackett, supra.

We believe it beyond question but that the trespass by the City upon Herilla’s property and the disassembling of portions of the interior of his house worked a substantial deprivation of his right to the ordinary use and enjoyment of his property and thus constituted a nuisance. The fact that many of the chattels and fixtures were returned by the City to Herilla may reduce the amount of damages, but the return to the rightful owner of many of the fixtures does not atone for the interior damage nor for those fixtures which were not returned.

From what we have said relative to the taking of property and nuisance, it follows, as we indicated at the outset, that the City’s motion raising preliminary objection on the ground of governmental immunity should have been denied.

DAMA GES - COMPENSA TOR Y OR EXEMPLAR Y

Generally, in the absence of statutory authority exemplary or punitive damages may not be recovered against a municipality. Euge v. Trantina, 422 F. 2d 1070, 1074, (8th Cir. 1970); Smith v. District of Columbia, 336 A. 2d 831 (D.C. App. 1975); Fisher v. City of Miami, 172 So. 2d 455, 457 (Fla. 1965); 57 Am. Jur. 2d, Municipal, School and State, Tort Liability § 318. There is no such statutory authority in Maryland, hence, Herilla’s claim against the City must be confined to compensatory damages.

The rationale for the rule exempting municipal corporations from the obligation to pay exemplary or punitive damages was succintly set out by Justice Thornal for the Supreme Court of Florida in Fisher v. City of Miami, 172 So. 2d at 457. There it is said:

“Basically, the justification for a punitive award is to punish the offender and to deter others from committing similar wrongs. Smith v. Bagwell, 19 Fla. 117, 121, [45 Am. Rep. 12, 14 (1882)]; Winn & Lovett Grocery Co. et al v. Archer, 126 Fla. 308, 171 So. 214 [(1936)]. Punishment and deterence being the principal supports for allowing this type of money award, the courts have historically declined to allow it in actions against municipal corporations for torts committed by their employees. While the wrongdoing employee is vulnerable to a punitive award, Hutchinson v. Lott, Fla. App., 110 So. 2d [421,] 442, [(1959)] the municipality is not.
The public policy which motivates the conclusion appears to be sound. Since punishment is the objective, the people who would bear the burden of the award — the citizens — are the self-same group who are expected to benefit from the public example which the punishment makes of the wrongdoer.
Another aspect of the matter is the rule which permits evidence of the wealth of a tortfeasor as a measure of the amount of punitive damages which should be awarded. Maiborne v. Kuntz, Fla., 56 So. 2d 720 [(1952)]; Hutchinson v. Lott, supra. The theory is — the wealthier the wrongdoer, the greater the award. Otherwise stated, a relatively small sum might be adequate to punish a poor man. A much greater sum, for the same wrong, would be needed to punish a rich man. If this were allowed against municipalities, it would permit evidence of the unlimited taxing power as the measure of a proper verdict. This is often suggested as an adequate justification for denying an award of punitive damages against a city.
The deterence element likewise adds little justification for this type of award against a municipality. In the first place it is to be assumed that the municipal officials will do their duty and if discipline of a wrongdoing employee is indicated, appropriate measures will be taken without a punitive award.
Further, a huge award against the City would not necessarily deter other employees who generally would be unlikely to be able to pay a judgment assessed against them personally.”

We adopt the reasoning of the Florida Court in Fisher.

We return to Sir Arthur Conan Doyle, from where we started. One can visualize the legendary Dr. Watson turning to Sherlock Holmes and opining, “Holmes, the City cannot do that to Herilla.” Whereupon, Holmes, between puffs on his Wellington, would respond, “My dear Watson, they have done it. What you mean, precisely, is that they cannot get away with it.” -

Order granting preliminary motion to dismiss reversed.

Case remanded for further proceedings.

Costs to be paid by Mayor and City Council of Baltimore.

      . The matter was represented to the trial court as an acquisition in furtherance of the Mt. Winans Urban Benewal Project, thereby, leading the trial judge to the erroneous conclusion that a governmental activity was involved.

      . Herilla’s counsel concedes that such an action has not been heretofore recognized in this State.

      . The Maryland Constitution, Declaration of Rights, Article 19, contains similar language. It declares,
      “That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.”

      . Some reasons for the law’s zealous protection of private property were well expressed by Pope Pius XII (Eugenio Pacelli) (1876-1958) in a radio broadcast made on September 1,1944. The Pope stated:
      ‘(Private property is a natural fruit of labor, a product of intense activity of man, acquired through his energetic determination to ensure and develop with his own strength his own existence and that of his family, and to create for himself and his own an existence of just freedom, not only economic, but also political, cultural and religious.
      If a worker is deprived of hope to acquire some personal property, what other natural stimulus can be offered him that will inspire him to hard work, labor, saving and sobriety today, when so many nations and men have lost everything and all they have left is their capacity for work?”


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    IRENE J. McCARTEY v. REX A. FROST
    [No. 13,
    September Term, 1977.]

      Decided October 14, 1977.

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

      Jean S. Spotts for appellant.

      Alfred L. Brennan, with whom were Brennan & Brennan on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

In law libraries in Maryland little can be found concerning a sale of real estate by a sheriff after levy of a writ of fieri facias on a judgment.

The case before us involves such a sale. The appellate decisions are few, and the only relevant statutory law is found in Code, Courts Art., §§ 11-501, 11-502, and 11-509, which read:

§ 11-501
“A sheriff to whom any writ of execution is directed may seize and sell the legal or equitable interest of the defendant named in the writ in real or personal property.”
§ 11-502 (in part)
“(a) A sheriff shall give notice of the time, place, and term of the sale of any property under execution before the property can be sold.
“(b) In the case of a sale of an interest in property, the notice shall be posted on the courthouse door and printed in a newspaper, published in the county where the property is located at least:
“(2) 20 days before the sale of real property.”
§ 11-509
“If a sheriff sells any interest of the defendant in any property, he shall convey it to the purchaser upon payment of the purchase price.”

We have been directed to no Maryland Rule relating to a sheriffs sale of real estate, and we find none. The BR Rules relate only to a judicial sale, which, being defined as a sale of property which is subject to ratification by a court, excludes a sheriffs sale, which is not subject to ratification. The W Rules apply only to foreclosure of mortgages and other security devices.

This appeal by Irene J. McCartney, an owner in common of an undivided one half interest in a row house in Dundalk, is from an order of the Circuit Court for Baltimore County denying her motion to set aside the levy and sale under a writ of fieri facias. No question was raised in the motion concerning the original judgment, the issuance, or the levy of the writ of fi. fa. The attack was upon what the sheriff did, or failed to do, after he was instructed by the judgment creditor, John A. Greene, to proceed to sell the property.

The writ of fi. fa. was issued on 18 December 1975, showing a principal indebtedness of $3,429.00, attorney’s fee of $342.90, and costs of $38.00. The writ was served and the levy made, according to the record, on 28 December 1975. Counsel for the judgment creditor gave instructions to the sheriff on 8 March 1976 to proceed with advertisement and sale. An advertisement of the sale, to be held on the premises at 11:00 A.M. on 20 April 1976, was published in The Jeffersonian, a weekly newspaper published in Towson, Baltimore County, on 25 March and on 1, 8, and 15 April 1976.

What was advertised and sold was “all the right, title, claim and demand at law and in equity of the said Harley J. McCartney and Irene J. McCartney in and to” the described property. At the sale the first bid was $1,500.00. The second bid, in the amount of $2,000.00, was made by Rex A. Frost, appellee. There were no other bids. The sheriff (through the auctioneer employed by him) declared the property sold to Dr. Frost for $2,000.00. The purchase price was paid, and on the same day the sheriff executed and delivered a deed conveying the property to Rex A. Frost.

Appellant’s motion to set aside the sale, filed 20 days after the sale, alleged that the selling price was grossly inadequate and unconscionable, and that the sheriff “failed to do those things necessary to attract the bidders and promote the bidding, and otherwise failed to act in good faith to procure the highest possible bid, as required to law”.

The appellee was permitted, upon petition, to intervene. A hearing on the motion was held before Judge John N. Maguire on 11 June 1976. Testimony was heard from eight witnesses, and 15 exhibits were received in evidence. The judge directed counsel to file written memoranda. They did.

On 21 October 1976 Judge Maguire filed a Memorandum and Opinion, which concluded with an order denying the motion to set aside the sale. Appellant filed a motion for reconsideration of the court’s memorandum and opinion. A further hearing was held, and testimony taken, on 6 December 1976. At its conclusion Judge Maguire said, “the Motion for Reconsideration of my Opinion is overruled, and the Motion [to Set Aside the] Writ of Fieri Facias is denied.” Within 30 days thereafter the appellant filed an order for appeal from the judgment on the motion to set aside and on the motion for reconsideration.

Appellant’s arguments here are that the sale should have been set aside because:

1. The price was grossly inadequate.
2. The purchaser did not comply with the advertised terms of sale, that the property would be sold “for cash”.
3. There were irregularities in the procedure of the sale, which must be considered with the grossly inadequate price.

Inadequacy of Price

Appellant presented evidence, not controverted, that the appraised value of the property, assuming clear title, was $24,000.00, and that there was an encumbrance of $6,000.00 against it. This evidence indicates that for a price of $2,000.00 and a debt of $6,000.00, or a total of $8,000.00, the purchaser received a value of $24,000.00, three times the price. Appellant presents it as an equity value of $18,000.00 for a price of $2,000.00.

However put, the price certainly appears to be inadequate, perhaps grossly so. But there are other factors. A sheriff in effect sells a quitclaim interest. He gives no assurance of good title. As the auctioneer put it in his testimony, at a sheriffs sale he is selling “a pig in a bag”. Another factor wTas present here. Mrs. McCartney, apparently because of advice given to her by a lawyer she consulted, declined to permit inspection of the inside of the house.

Inadequacy of price, coupled with irregularities and improprieties in the sale, caused the Court of Appeals in Nesbitt v. Dallam, 7 Gill & Johnson 494 (1836) to set aside a sheriffs sale of real estate. The statute then in effect required that the advertisement of sale be set up at the courthouse door of the county, and other public places in the county, where such sale may be made. The property levied upon was three separate lots in the town of Port Deposit. The advertisement was set up at no public places in the county, except the courthouse, post office, and two taverns in Elkton, 18 miles from Port Deposit. The sale was held at Elkton.

Regarding the advertisement in that case the Court of Appeals said that it was a circumstance that would have great weight in inclining the court to set aside a sale, where the property had been sold greatly below its value. The Court said, at 511:

“It is the duty of the sheriff in making a judicial sale, to endeavour to obtain the best price in his power for the property to be sold; and in the exercise of a sound judgment and discretion upon the subject, he should cause advertisements to be set up at such public places in the county, as he may reasonably believe would be conducive to that end; amongst which, in the present case, in the absence of all proof to the contrary, would be public places in the town of Port Deposit, and its vicinity.”

The three lots were sold in mass, on the execution of a judgment of $150.00 which had first priority, but was followed by a mortgage and other judgment liens amounting to between $4,000.00 and $5,000.00. The property was proved to have been worth $5,800.00. It was sold for $1,100.00.

The Court said, at 512:

“Such a disparity between the price and value of the property sold, furnishes intrinsic evidence of the irregularity, impropriety, or unfairness of the sale; and connected with any of the several omissions of duty, or indiscretions of the sheriff before referred to, leaves not to the court a shadow of discretion as to vacating this sale.”

The Court then discussed what it called the “gross misconduct of the sheriff” in selling the entire property in mass, which it said was “manifestly a fraud on the rights of the mortgagee”.

The present statute requiring the sheriff to give notice of the sale calls for no exercise of sound judgment and discretion. Both the minimum and the maximum are that the notice be posted at the courthouse door, and printed in a newspaper published in the county. Anything less is fatal to the sale; anything more is surplusage.

An allegation that a sheriffs sale brought a grossly inadequate price was considered by the Court of Appeals in Preissman v. Crockett, 194 Md. 51, 69 A. 2d 797 (1949). The Court disposed of issues concerning the levy, and the sheriffs return, neither of which is involved here, and of the contention of the judgment debtors that they had a right to select the paper in which the advertisement of sale was published. The property in that case was sold by the sheriff for $1,050.00, subject to a lien of $664.37, which would total $1,714.37. There was inconclusive evidence which indicated a value of about $4,000.00. The Court noted prior holdings “that mere inadequacy of price standing alone was insufficient to set aside a judicial sale”,.and stated, at 60:

“We do not think that the price which the property in question brought at the sale was grossly inadequate; and the conduct of the sale by the sheriff cannot be questioned for want of fairness, good faith, and the exercise of reasonable discretion.”

Clearly it is the law that if the inadequacy of price in this case stood alone, that inadequacy would not invalidate the sale. We shall, however, consider later in this opinion whether the inadequacy resulted from any irregularity, omission of duty, or impropriety by the sheriff, or unfairness in the sale.

The Sale Was Made For Cash

The facts relating to this question were brought out partly at the first hearing and partly at the second. Judge Maguire’s findings, supported by the evidence, were that when the property was sold to him Dr. Frost tendered to the sheriff a treasurer’s check on the Equitable Trust Bank, payable to Dr. Rex A. Frost, in the amount of $19,969.10. He asked the sheriff for change. The sheriff was unable to give change, but kept possession of the check and went with Dr. Frost to a nearby branch of Equitable Trust Bank, where payment in the correct amount of $2,000.00 was made by another treasurer’s check.

In arguing that this method of payment was a departure from the advertised terms of sale, and an irregularity, appellant relies upon the opinion of the Court of Appeals in Buckeye v. Brown & Shilling, 243 Md. 224, 220 A. 2d 922 (1966). In that case, one of the few involving a sheriff’s sale ever to reach it, the Court reversed a circuit court order denying a judgment debtor’s petition to quash a sale on execution levied upon an interest in real estate.

The case presented a series of events which the Court of Appeals characterized as “almost farcical”. The first successful bidder, president and owner of the corporate judgment debtor, had no cash or reasonable substitute. The bidding began again. The next successful bidder had neither cash nor certified check, but said that he had a bankbook in his office, IV2 miles away. The bidder, the auctioneer, the sheriff, and the creditor’s attorney left the court house and went to the office. The bidder displayed a savings passbook showing funds on deposit sufficient to cover the price. After he had made a few telephone calls, the bidder said that he would not go through with the sale unless he got a guaranteed title. The sheriff’s response to that condition was negative. The gathering broke up. A day or two later, holding an assignment from the second “successful” bidder, a corporation of which an earlier unsuccessful bidder was president, paid to the sheriff, who accepted it, the amount of the high bid, and about a week later received a deed from the sheriff. In Buckeye the Court said, at 230-31:

“When the published terms of sale provide, as in the case at bar, for a sale ‘to the highest bidder for cash’ the sheriff may not vary the terms of sale by accepting anything else. The term ‘cash’, as used here, excludes checks, drafts and negotiable instruments in any other form. It means United States currency. Certified checks, bank drafts and cashier’s checks may, in appropriate circumstances, constitute an exception when drawn upon or issued by banks the existence and solvency of which are well known to the sheriff. (Citations omitted)
“The very concept of a sale ‘for cash’ connotes and requires an immediacy of payment which is conspicuously absent in the case before us.”

We hold that the payment of cash as Dr. Frost paid it in this case met the requirement of immediate payment. We see no irregularity in the transaction, and there is no suggestion of impropriety or unfairness.

Other Procedural Irregularities

In addition to the sheriffs temporary acceptance of an unendorsed treasurer’s check in lieu of cash, appellant suggests in argument several other irregularities.

She says that The Jeffersonian, published in Towson, has no circulation in Dundalk, and the sheriff’s duty to obtain the best price for the property required him to publish the notice in some other paper. By a letter sent on 10 March 1976 addressed to both judgment debtors the Chief Deputy Sheriff advised that sale of the property had been ordered, and “you have the right to name the newspaper in which it is to be advertised.” Mrs. McCartney received the letter, and did nothing. In both Preissman, supra, 194 Md. at 58-59, and Buckeye, supra, 243 Md. at 232-33, the failure to assert the right to name the paper was held to be a waiver of the right. The right was waived here.

Regarding the duties of a sheriff in the sale of real property the Court of Appeals said in Buckeye, supra, at 229-30:

“While the only reason for a sale by the sheriff under the writ of fieri facias is to accomplish a satisfaction of the judgment, the sale should be so conducted as to promote competition and to secure the best price. Judge Raine (the trial judge) felt ‘the sheriff is entrusted with a certain amount of discretion’ in conducting execution sales and it must be conceded that this is generally true. Nevertheless, whatever may be the limits of that ‘certain amount of discretion’ it must be fairly and impartially exercised for the benefit of all concerned. Ordinarily the sheriff may follow the reasonable directions of the judgment creditor but he should be at all times aware that he is not merely the servant of the creditor and that the debtor may have interests which he has a duty to protect. Indeed, in some circumstances, the bidders at the sale may be drawn within the purlieus of his duty to be fair and impartial.”

After having detailed the unbroken series of irregularities in Buckeye (in which inadequacy of price was not an issue) the Court commented, at 232:

«* * * we d0 not think execution sales should be conducted in such a casual, haphazard manner and the only way to make our disapproval effective is to set the sale aside. To do otherwise, we think, would be tantamount to providing every sheriff with access to a modern Pandora’s box.”

Appellant suggests that pursuant to the sheriff’s duty to obtain the best price for the property he should have posted a copy of the advertisement of sale in the vicinity of the property; that he should have posted directional signs or arrows on busy nearby streets showing the way to the site of the property; that he should have ascertained for himself the value of the property being sold; and that he should have consulted with the judgment creditor or the judgment debtors regarding the terms of sale.

In a sale such.as this, it is the sheriff’s duty to follow the procedures established by law, and to conduct the sale in conformity with his advertisement. He has no duty to do more. To the extent that he has discretion, it concerns how, but not whether, to follow the required procedures. In addition, he has a duty to refrain from any conduct which may discourage competition in the bidding, or may otherwise be unfair to creditor, debtor, or prospective purchaser.

It should be understood, despite their similarity in some respects, that a sheriff’s sale on execution of process issued by a law court is not the same as a sale made by a trustee under the supervision of a court of equity. A sheriff must do what the law requires him to do. The range within which he may exercise judgment or discretion is very limited. He bears no fiduciary relation to any of the parties. His sale, lawfully made, is not conditional, but absolute. He does not report his sale to any court. His action is not and need not be ratified or approved by a court. Payment of the purchase price is immediate, and execution and delivery of the sheriff’s deed may be immediate.

Even when a sheriffs sale is subjected to judicial review, as it was in this case, that review takes place in a law court, where the complaining party must show that the sale was not made according to law, and was defective.

In her brief here appellant says that the sale commenced later than the advertised time of 11:00 o’clock. That issue was not raised or decided below, and even if she is correct, any harm was speculative at most. We do not consider it. Maryland Rule 1085.

We hold that there was no breach of duty by the sheriff in the sale of the property in this case. The inadequate price, standing alone, did not invalidate the sale.

Motion to dismiss appeal denied.

Orders affirmed.

Appellant to pay costs.

      . Judgment was entered by confession against Harley J. McCartney and Irene McCartney on 22 September 1971, on a promissory note, long overdue. The house had been purchased by the McCartneys as tenants by the entireties, but their ownership was converted to a tenancy in common by their subsequent divorce. Mrs. McCartney lived in the house. Mr. McCartney lived in West Virginia. The motion was mistakenly filed on behalf of both, but the record was later corrected to show that Mrs. McCartney was the only moving party. Mr. McCartney never appeared, nor did he respond in any way to various notices sent to him.

      . Appellee has included in his brief a motion to dismiss the appeal, as not taken within 30 days from the order of 21 October 1976. He points out, correctly, that a motion for reconsideration does not suspend the running of the time for appeal. There is much to be said, however, for the argument that the hearing of 6 December 1976, at which the court heard further testimony, and again denied the original motion, was in fact a rehearing. In the unusual circumstances here, we shall deny the motion to dismiss the appeal, and consider the case on the merits.

      . See, however, Code, Real Property Art., § 14-103 (a).


author: Morton, J.,

text:
    HILTON RAY BAINES v. STATE OF MARYLAND
    [No. 15,
    September Term, 1977.]

      Decided October 14, 1977.

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

      Charles E. Foos, III, Assigned Public Defender, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Jeffrey Himmelstein, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

In a non-jury trial in the Circuit Court for Baltimore County (Proctor, J., presiding), appellant was found guilty on two separate charges of burglary and one charge of attempted daytime housebreaking. He received concurrent ten year sentences on the burglary convictions and a five year concurrent sentence on the attempted housebreaking conviction.

In this appeal appellant first contends that the trial judge committed reversible error “by improperly entering guilty verdicts without first affording the Appellant’s counsel the right to argue the merits of his case.”

At the conclusion of the state’s case, appellant moved for a judgment of acquittal, which motion was denied. Appellant was then advised of his right to testify or remain silent and he elected not to testify. The records reads as follows:

“MR. KINSLEY [Counsel for Defendant]: * * * Knowing your constitutional right to remain silent or to testify, would you like to testify or remain silent?
DEPENDANT: Remain silent.
MR. KINSLEY: Remain silent. The Defense rests, and I’d like to be heard briefly —
THE COURT: The testimony is clear that these purses were taken for Linda Matthews. The testimony is also clear that, in my judgment, everybody admits, she knew and even Mr. Baines [appellant] himself testified he willingly made a statement to Officer Kiblin, and the statement to Officer Kiblin was that he knew these purses, he could not be sure from what apartment he had gotten the purses which is understandable, but he knew that he had gotten these purses by breaking and entering. The one purse was clearly identified by Mrs. Hartsel as her purse. The fact that it had the initials L.M. in it does not affect the fact that the purse was clearly identified, and is the type of purse that is easily identifiable. So you run all of this together which proves guilty beyond a reasonable doubt, in my judgment. He also had an attempted breaking and entering in the Fields case, which is also proved, in my judgment.”

It is in this factual posture that appellant contends that the trial judge improperly entered guilty verdicts without first affording appellant’s counsel the right to argue his case. We agree.

The state relies heavily upon the recent holding of this Court in Covington v. State, 34 Md. App. 454 (1977). Chief Judge Gilbert, writing for a majority of the Court in Covington, stated, at 465:

“We observe that in the instant case neither the appellant nor his counsel raised, at trial, any issue of a denial of argument of the law applicable to the agreed facts. Thus the issue is raised for the first time on appeal. Maryland Rule 1085 provides that we should not ordinarily decide any issue which ‘does not plainly appear by the record to have been tried and decided by the lower court[.]’
Notwithstanding Maryland Rule 1085, we reversed the trial court in Moore, supra, tl even though the issue of argument by counsel was not raised in the trial court. While Md. Rule 1085 was invoked by the State in its brief in Moore, we did not address the point. We believe Moore’s articulation of the right of counsel to be correct, but we should not have considered the matter on direct appeal because it was not raised nor decided in the trial court. Md. Rule 1085. To the extent that Moore indicates that the issue may be presented for the first time on appeal, Moore is expressly overruled.” (Citations omitted.)

The state argues that in the case at bar, as in Covington, the “question is not properly before this Court for review because the issue ‘does not plainly appear by the record to have been tried and decided by the lower court.’ Md. Rule 1085; Covington v. State, supra.It is further suggested that the state “does not believe that the trial court affirmatively denied Appellant or his counsel the right to argue the merits of the case” and, therefore, “the case at bar is distinguishable from Yopps v. State, 228 Md. 204 (1962), upon which Appellant relies.” Yopps makes it clear, at 207:

“The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny accused such right.”

We cannot agree with counsel for the state that the rule of Yopps was waived because the trial court did not affirmatively deny appellant or his counsel the right to argue. The record is perfectly clear that appellant’s counsel, after resting his case, announced: “* * * and I’d like to be heard briefly.” Even the most uninitiated in trial practice would recognize that counsel for appellant was requesting an opportunity to present an argument on the evidence and law of the case. The trial judge, however, ignored the request and proceeded to announce his decision. Under the circumstances, we cannot subscribe to the state’s argument, in essence, that it is incumbent upon counsel or appellant to enter into a verbal affray with the court in order to preserve appellant’s right to raise the issue on appeal.

No matter how convincing the evidence of appellant’s guilt may appear to be, it is crystal clear that he was denied his constitutional right “to have his counsel make a proper argument on the evidence and the applicable law in his favor * * Yopps, supra, at 207. Accordingly, the judgments of conviction will be reversed and the case remanded for a new trial.

At the request of appellant, his appellate counsel advanced the contention that statements appellant gave a police officer were improperly admitted into evidence. Officer John Kiblin testified that he interviewed appellant after he had been arrested on a charge of rape which charge was subsequently dismissed. He stated that appellant was advised of his Miranda rights and expressly waived them. He explained that two other officers had questioned appellant concerning the rape, but he interrogated appellant only about the burglary and housebreaking charges.

Appellant then took the stand and said that Officer Kiblin had been nice to him but the two other officers who questioned him about the rape had hassled him and indicated that if he pleaded guilty to the burglary charges the rape charge would be dropped. Under questioning by the trial judge appellant conceded he told Officer Kiblin “that I would give it [the statement] to him on my own free will but I was all upset.” Officer Kiblin was recalled to the stand and testified that appellant told him he had committed the offenses with which he was ultimately charged.

Appellant’s reliance on Streams v. State, 238 Md. 278, 283 (1965), is misplaced. In Streams the Court of Appeals held:

“We think the State’s failure, after Streams left the stand, to go forward with testimony which would refute his claim of promises and threats and to show the conduct of the police during the period he was in custody of the arresting officers was enough under the circumstances of this case to require a holding that the judgments appealed from must be reversed because the State did not meet its burden of establishing the voluntariness of the confessions as a prerequisite to their admission in evidence.”

Here the state not only met its burden of establishing the voluntariness of appellant’s statement to Officer Kiblin, but appellant himself acknowledged that the statement was given “on my own free will.” The fact that he was “all upset” could appropriately describe almost anyone who gives an inculpatory statement and does not alter appellant’s concession that his statement was voluntary. The contention is without merit.

Judgments reversed; case remanded for a new trial; costs to be paid by Baltimore County.

      . Certiorari was granted by the Court of Appeals and the case is scheduled for argument October 4,1977.

      . Moore v. State, 7 Md. App. 330 (1969),

      . Miranda v. Arizona, 384 U. S. 436 (1966).


text:
    MELVIN JONES v. STATE OF MARYLAND
    [No. 26,
    September Term, 1977.]

      Decided October 14, 1977.

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

      Geraldine K. Sweeney, Assistant Public Defender, with whom were Alan II. Murrell, Public Defender, and Mark Colvin, Assistant Public Defender, on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A.

      Swisher, State’s Attorney for Baltimore City, and Leonard Eiswert, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, December 21,1977.

   Powers, J.,

delivered the opinion of the Court.

In a court trial in the Criminal Court of Baltimore before Judge J. Harold Grady, the appellant was found guilty of second degree murder. The court had granted a judgment of acquittal as to first degree murder. Other counts in the indictment were held to have merged into the second degree murder conviction. The court imposed a sentence of 30 years.

On direct appeal this Court affirmed the judgment of conviction in an unreported opinion, Jones v. State, No. 598, September Term, 1974, filed 27 March 1975. The Court of Appeals denied a petition for a writ of certiorari.

The present phase of the case arose when the appellant, in proper person, prepared and filed, on 21 July 1976, a petition for post conviction relief, encouraged, no doubt, by what was said in Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff’d. State v. Evans, 278 Md. 197, 362 A. 2d 629 (1976), applying the holding of the Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975).

In his petition the appellant asserted that the trial court committed error in its instructions by stating that

a. All homicides are presumed to be with malice, and
b. To lower the degree of homicide to manslaughter or lesser degree the burden is on the defendant to prove that the homicide was without malice.

Appellant also questioned whether the prosecution met its burden of proving malice aforethought beyond a reasonable doubt.

The petition was somewhat inaccurate, in that it spoke of error in the instructions given by the judge in the criminal trial. There were, of course, no instructions as such given in the criminal trial, which was held before the court without a jury. Judge Grady did, however, explain his finding of guilty of murder in the second degree, and it is his reliance upon a presumption of malice that appellant contends was error.

At the hearing on the petition, held before Judge Meyer M. Cardin in the Criminal Court of Baltimore, counsel for Jones withdrew the third contention, and submitted on the record with regard to the question of malice. Judge Cardin denied post conviction relief. Jones filed an application to this Court for leave to appeal from that denial. We granted leave, and transferred the case to our regular appeal docket, so that the case could be fully briefed and argued.

In his brief here, appellant puts the issues somewhat differently. He asks:

“I. Did the evidence support a finding of manslaughter?
A. Did the evidence fairly generate an issue of mitigation?
B. Could the trial judge properly have found that Appellant did not act with malice and was guilty, therefore, of manslaughter?
“II. Can voluntary intoxication negate malice and, therefore, reduce murder to manslaughter?”

In Judge Cardin’s opinion denying post conviction relief, he quoted the pertinent comments made by Judge Grady at the criminal trial. Judge Grady said:

“The Court is of the opinion that it has been established beyond a reasonable doubt that the victim, Edith Dorsey, died at the hands of the Defendant, Melvin Jones. The autopsy report shows that the death was caused by six separate incisive wounds of the body about the chest, neck and arms. The use of a deadly weapon directed at that part of the body certainly under our law supplies the element of malice necessary to constitute the elements of murder in the second degree. The Defendant’s explanation of consuming a large amount of alcohol and not having any recollection of the events from a time, approximately 10:00 or 11:00 P.M. until ten or eleven hours later in my mind does not negative the legal presumption that the use of a deadly weapon under the circumstances constitutes malice.”

It will be seen that Judge Grady placed no burden of proof, no burden of persuasion of any kind upon the accused. It is true that he said that the evidence “supplies the element of malice necessary to constitute the elements of murder in the second degree”, and later referred to “the legal presumption that the use of a deadly weapon under the circumstances constitutes malice”. It must be said that Judge Grady relied upon a presumption of malice, but he did not say whether he referred to that limited aspect of malice involving the intent to kill (or the intent to do grievous bodily harm) or whether he referred to that broader aspect of malice which may be said to exist only in the absence of justification or excuse, and the absence of mitigation.

As a practical matter, we have no doubt that Judge Grady applied the presumption of malice in its broad and unrestricted sense, as had been the universal practice in the courts of Maryland for generations. Whether doing so was a mere intellectual error, harmless in the context of the issues involved, or was substantial in the circumstances, and therefore was prejudicial to the appellant, must depend upon the evidence before the court, and the issues raised by that evidence.

In his opinion denying post conviction relief, Judge Cardin very aptly said:

“It is manifest that the trial judge relied upon presumptions of law which were subsequently changed. By relying upon the presumption of malice through the use of a deadly weapon directed at a vital part of the human body, the State was unconstitutionally relieved of proving the absence of justification, excuse or mitigation and thereby thrusted the burden upon the petitioner to exculpate himself generally or of lowering his guilt to manslaughter.
“However, there were no issues generated by the evidence as to justification or excuse. The only issue presented at trial was one of mitigation in terms of voluntary intoxication and this, as was previously discussed, would not reduce second degree murder to manslaughter. Notwithstanding the error of the unconstitutional shifting of the burden of proof, where there are no issues generated by way of justification, or excuse or where mitigation through voluntary intoxication has been eliminated by a guilty finding of second degree murder, the petitioner has suffered no cognizable harm and therefore any error is manifestly harmless, at the constitutional level, and non-prejudicial, at the non-constitutional level.”

In the opinion of this Court affirming the conviction on direct appeal, we summarized the facts in evidence. We said:

“According to the evidence adduced at trial, around 6:00 A.M., on January 27, 1974, Mary Ballard was awakened by the calling of her sister, Edith Dorsey, (the victim). She observed her sister sitting on the side of the bed in a stooped over position. The appellant was standing at the foot of the bed holding a knife which was dripping with blood. Mary Ballard ran from the house to her daughter’s house after hearing the appellant say to her sister, ‘Get up bitch, get up bitch, or I will kill you.’
“When Mildred Johnson, the daughter of Mary Ballard, arrived at her mother’s house no one was there but her aunt, who was lying face down on the floor in a pool of blood. She left the house, flagged down a police car, and after riding a short distance with the officer, she saw the appellant. Officer Rivers, acting on information received from Mildred Johnson, parked his vehicle and approached the appellant, who said, ‘Yeah, I cut her.’ The appellant was then arrested and searched; a knife was found in his pants pocket.
“The appellant testified the victim was his girl friend and that he had no recollection of stabbing or cutting her; that the two of them had been drinking for several hours and he must have blacked out; that he could not remember anything from around 10:00 P.M. on January 26, 1974, the time he was drinking with the victim and her sister, to the time he was questioned in the police station.”

Our discussion in that opinion of the sufficiency of the evidence, one of the issues raised by Jones in that appeal, is significant to the questions now before us. We said then:

“There is no dispute about the corpus delicti, and the criminal agency of the appellant was amply established by the following evidence: The appellant was seen standing in close proximity to the victim with a knife in his hand that was dripping with blood. He threatened to kill the victim and admitted he had cut her. The blood on his clothes was the same type as that of the victim, and human blood was found on the knife in his possession at the time of his arrest.
“The contention of the appellant that there was no evidence of malice is without merit. The essential distinction between murder and manslaughter is the presence or absence of malice. Chisley v. State, 202 Md. 87, 105 (1952). The law presumes that in the absence of justification, excuse or some circumstances of mitigation, all homicides are committed with malice and constitute murder. Bagley v. State, 6 Md. App. 375, 379 (1969). No evidence was introduced and none apparently exists to overcome the presumption that this homicide was committed with malice. Additionally, an inference of malice may be drawn from the fact of the use of a deadly weapon, directed at a vital part of the body. McCord v. State, 15 Md. App. 63, 69 (1972). The evidence here shows that the death of the victim was caused by multiple stab wounds to the chest, neck and back, which are vital parts of the body. Lindsay v. State, 8 Md. App. 100, 104 (1969).”

To the extent that Judge Grady, at the criminal trial in June 1974, and this Court, in the direct appeal opinion in March 1975, may have been guided by principles or concepts relating to malice or a presumption of malice, which were modified by the subsequent holdings of Mullaney and the two Evans cases, we must determine whether there was any error prejudicial to the rights of the accused.

In Evans v. State, supra, this Court, speaking through Judge Moylan, said at 705:

“The danger lurks in the fact that ‘malice’ means all of three different things:
1) the intention of doing a.particular act;
2) the absence of justification or excuse; and
3) the absence of mitigating circumstances.
“The use of deadly force properly gives rise to a permitted inference only of the first aspect of malice, that is, the intent to kill (or, alternatively, the intent to do grievous bodily harm).”

We said further, at 706:

“When we speak of the inference, therefore, we must scrupulously restrict its operation to that limited aspect of malice involving the intent to kill or the intent to do grievous bodily harm. We must never speak of inferring malice generally. This universal statement may all too easily be taken as permitting the inference of those other aspects of malice which are 1) the absence of justification or excuse and 2) the absence of mitigation. Such an inference would, of course, be clearly unconstitutional under Mullaney v. Wilbur and Winship. It would relieve the State unfairly of proving both the absence of justification or excuse and the absence of mitigation. It would thereby put upon the defendant the unconstitutional burden of exculpating himself generally or of lowering his guilt to manslaughter.”

Appellant, in his brief here, summarizes succinctly and accurately when he says:

“The evidence adduced at Appellant’s trial showed simply that he killed the victim, his girlfriend, by stabbing her in the chest, neck, and back. At that point, however, the evidence stops; there is no evidence as to the circumstances surrounding the killing.”

Each of appellant’s three arguments is based upon the same point. He apparently concedes that there was no evidence in the case which could be said to generate an issue of justification, or an issue of excuse. He contends that there was evidence — voluntary intoxication of the accused — which fairly generated the issue of mitigation. If that issue were decided in his favor, he says, the crime would be reduced from murder in the second degree to manslaughter. He says that the fact finder was permitted to infer that the homicide was not mitigated, but was equally permitted to infer that it was mitigated.

The trial judge, as the fact finder, was not permitted, appellant argues, to presume that component of malice which involves the intent to kill or to do serious bodily injury, from the fact of homicidal agency.

In Gilbert v. State, 36 Md. App. 196, 373 A. 2d 311 (1977), we considered the contention of the appellant, who had shot and killed her husband, that she was entitled to a judgment of acquittal on motion, when the State had offered no direct evidence that the homicide was not excused, and was not mitigated, and there was in the case sufficient evidence to raise a genuine issue as to each of those defenses. We discussed the obligation of the State to prove the non-existence of certain elements. We said, at 199:

“Because such notions as justification, excuse and mitigation are not monolithic phenomena but come rather in infinite variety, anticipatory disproof of them in the abstract becomes a practical impossibility.”

We said further, at 200-201:

“There are a number of reasons why we do not require such anticipatory disproof by the State, not the least of which is the devastating impact it would have upon judicial economy. At the most fundamental level, however, we do not require it, because to require it would be an absurdity.
“The device by which this relief is accomplished is called a presumption. The presumption operates in favor of the State. Absent some legally sufficient indication to the contrary, the homicide will be presumed to be not justified, not excused and not mitigated. Under the due process clause as interpreted by In Re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970), and applied by Mullaney v. Wilbur, supra, such a presumption in a criminal case has constitutional limitations. It may shift to the defendant the burden of producing evidence sufficient to generate a genuine jury question as to one or more of the possible defensive issues. It may never shift to the defendant the heavier burden of ultimate persuasion. In its lesser function of shifting to the defendant merely the burden of producing evidence, the presumption dissipates or totally disappears (The bubble bursts’) as soon as the defendant has met his lesser burden of producing enough evidence to generate a genuine jury question. At that point, the State no longer has the benefit of the presumption. The State then assumes the burden of disproving, beyond a reasonable doubt, the defensive issue which has been generated.
“Turning to the case at hand, the establishment of the fact that William Gilbert died and that the appellant was the homicidal agent gave rise initially to the presumption (in its properly limited sense of shifting simply the burden of going forward with evidence) that the killing was not justified, not excused and not mitigated.”

The effect of that presumption was explained in Gilbert v. State, supra, at 203:

“A presumption, unlike an inference, has binding legal significance and, when unrebutted, moves the proof in a case into one end or the other of the spectrum of proof, where it is the judge’s domain to rule upon evidentiary questions as a matter of law. In a homicide case, the presumptions of non-justification, non-excuse and non-mitigation move the proof on these issues to the point where, unless they are dissipated, the judge rules as a matter of law that they are established. In effect, he has directed a verdict against the defendant upon these sub-issues; although in a criminal case he cannot, of course, direct a verdict against the defendant as to the ultimate issue. Thus, in a jury trial, the jury receives no instructions upon these matters and is not entitled even to consider them. In a court trial, the judge does not consider these issues when he moves from his capacity as a legal referee to his other capacity of resolving factual disputes.”

In affirming Evans v. State, supra, the Court of Appeals, in State v. Evans, supra, said, at 205:

“We fully concur with the Court of Special Appeals that in view of Mullaney and Wins hip, the trial court’s instructions to the effect that malice could be presumed from pointing a deadly weapon at a vital part of the body unconstitutionally relieved the State of its burden of proving, beyond a reasonable doubt, the absence of mitigation where, as here, a jury had returned a conviction of murder in the second degree and the defense of provocation had been fairly raised by the evidence in the case. While it may be proper to infer an intention to kill or to do grievous bodily harm from the directing of a deadly weapon at a vital part of the human anatomy, it is improper to infer ‘malice’ therefrom, since the use of deadly force does not itself negate the absence of mitigating circumstances * * * .”

The Court of Appeals, through Chief Judge Murphy, further explained, at 207-08:

“Of course, nothing in Mullaney per se precludes the use of traditional presumptions or logical inferences arising from established facts; what Mullaney precludes is the use of such presumptions or inferences only when they operate, ultimately, to relieve the State of its burden of persuasion in a criminal case, i.e., its burden of proving beyond a reasonable doubt all the facts necessary to constitute the offense when the issue of their existence becomes an issue in the case. State v. Hankerson, 288 N. C. 632, 220 S.E.2d 575 (1975); Evans v. State, supra.
“The court in Evans was careful to point out that the burden of initially producing ‘some evidence’ on the issue of mitigation or self-defense (or of relying upon evidence produced by the State) sufficient to give rise to a jury issue with respect to these defenses, is properly cast upon the defendant. Once the issue has been generated by the evidence, however, the State must carry the ultimate burden of persuasion beyond a reasonable doubt on that issue. Nothing in Mullaney in any way purports to circumscribe this well-established procedure; indeed in Mullaney the Court recognized that many states do require the defendant to make a threshold showing that there is ‘some evidence’ indicating that the defendant acted in the heat of passion before the prosecution is required to negate this element of the offense beyond a reasonable doubt. See 421 U. S. at 701-02 (n. 28). In other words, the prosecution need not in the first instance introduce evidence of facts which negate the existence of mitigating circumstances or of self-defense; and if the defendant adduces no evidence of these matters, no issue of their existence is raised in the case and no jury instructions regarding mitigating circumstances or self-defense need be given.”

The Court of Appeals, in another opinion filed on the same day as State v. Evans, supra, again considered the effect of Mullaney v. Wilbur on jury instructions given by the trial judge in a homicide case. In State v. Garland, 278 Md. 212, 362 A. 2d 638 (1976), that Court reversed the judgment of this Court in Garland v. State, 29 Md. App. 27, 349 A. 2d 374 (1975). We had reversed Garland’s second degree murder conviction, holding that the jury instructions did not fairly convey the necessary message that the burden of negating mitigation is upon the State, and for that reason violated the principles of Mullaney v. Wilbur.

The Court of Appeals disagreed, holding that the instructions as a whole did not relieve the State of its burden of proof. The Court of Appeals said, at 218:

“The court [of Special Appeals] in Garland next noted that the trial judge defined second degree murder as ‘an unlawful killing with malice, but without the deliberation or premeditation’ and that it defined ‘malice’ as ‘something done intentionally and without a lawful excuse.’ The Court of Special Appeals held that malice comprehends three aspects, i.e., (1) the intentional act, (2) the absence of justification or excuse, and (3) the absence of mitigation. It said that the first two aspects separate murder from non-culpable homicide and that the third aspect separates murder from manslaughter. It said that in defining ‘malice,’ the failure of the trial judge to include the element of the absence of mitigation in a case where mitigation was a genuine issue ‘operated to relieve the State of its rightful burden of proving this critical element beyond a reasonable doubt.’ ”

After analyzing the trial judge’s instructions, the Court of Appeals concluded, at 219:

“While we agree with the court in Garland that the element of malice includes the absence of mitigation, we do not think that the trial court’s instruction that ‘[m]alice is something done intentionally and without a lawful excuse,’ properly viewed in the context of the overall charge, constituted reversible error. Without question, under Mullaney, when the issue of mitigation is properly presented by the evidence, it is the State’s burden to prove its absence beyond a reasonable doubt. State v. Evans, supra. In defining ‘malice’ in his jury instructions, it would have been preferable had the trial judge stated that the absence of mitigation was a necessary element of the offense. But considering the instructions in their entirety, as we must do, State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975), we do not think that they unconstitutionally relieved the State of its rightful burden of proving this critical element beyond a reasonable doubt.”

It will be seen that the pre-Mullaney error in our criminal practice did not lie directly in the fact that we presumed all homicides to have been committed with malice, and to constitute murder. The error occurred only when we failed to narrow the breadth of that presumption and thereby relieved the State of its rightful burden of proving the absence of justification or excuse, which separates murder from non-culpable homicide, or the absence of mitigation, which separates murder from manslaughter, when one of those factors was a genuine issue in the case.

To relieve the State of its rightful burden by the device of a broad presumption is as bad, constitutionally, as affirmatively placing the burden upon the accused to persuade the fact finder that the homicide was justifiable, or excusable, or was mitigated. Even that error is harmless, however, if it relates to a defense as to which no legitimate issue was fairly generated by the evidence. In Burko v. State, 28 Md. App. 732, 349 A. 2d 355 (1975), cert. denied, 278 Md. 717 (1976), the trial judge had instructed the jury that “the burden rests on the Defendant to show you that the homicide should be reduced to manslaughter”, an instruction which we said was flatly unconstitutional. We affirmed a conviction of second degree murder, however, saying, at 738-39:

“Notwithstanding that error, it was an error in a vacuum — a purely academic error — as far as this particular case is concerned. As we further analyzed in Evans (Part IF and Part IIH), Mullaney v. Wilbur will not be applied where ‘there was an erroneous allocation of the burden of persuasion on the questions of mitigation, justification or excuse but where they were not issues in the case.’ ”
“After citing Maryland precedents in this regard in Street v. State, 26 Md. App. 336, 340-341, 338 A. 2d 72 (where an erroneous allocation of the burden of persuasion on the question of self-defense was held to be immaterial where no fair jury question had been generated as to self-defense), and O’Connor v. State, 234 Md. 459, 461, 199 A. 2d 807 (where an erroneous allocation of the burden of persuasion on the question of insanity was held to be immaterial where no fair jury question had been generated as to insanity), we concluded, ‘Erroneous instructions on non-issues are self-evidently immaterial.’ ”

So it is clear that the need to narrow the breadth of the presumption of malice exists only when the evidence in the case has fairly generated an issue of justification or excuse, or of mitigation. It remains just as valid, just as constitutional, today as before Mullaney v. Wilbur, to presume from the use of deadly force that aspect of malice which comprehends that the act was intentional. That presumption cannot support a conviction, however, unless supplemented by the absence of justification or excuse, and the absence of mitigation.

As we said earlier, in quoting from Gilbert v. State, supra, the absence of those aspects of malice is also presumed, until the bubble of that presumption is burst by the introduction of evidence sufficient to generate an issue of fact.

In the present case there was no evidence whatever which generated an issue of justification, or of excuse, or of mitigation. In appellant’s futile grasp at an issue, he speaks only of mitigation. He makes no claim to justification or excuse. His claim that the evidence generated an issue of mitigation, which could negate malice, and reduce murder to manslaughter, is founded upon his own evidence that he had been drinking for several hours, must have blacked out, and could not remember anything from around ten o’clock the evening before, until he was questioned in the police station.

Appellant claims too much. Mitigation, in the criminal law of homicide, may exist when the act of the accused which resulted in death was in hot-blooded response to a legally adequate provocation. The view of the law is that such a circumstance may negate the malice which is an element of murder. We know of no case in which voluntary intoxication has been held to negate malice. The authorities are to the contrary.

Intoxication does indeed have a place in the law of homicide, but only at a level higher than manslaughter. Intoxication of an accused at the time of a homicide may have rendered him incapable of the premeditation which is an element of one kind of first degree murder. Such lack of capacity to form the required specific intent was quite likely the reason that Judge Grady acquitted Jones of first degree murder in this case.

Almost 25 years ago the Court of Appeals, in Chisley v. State, 202 Md. 87, 95 A. 2d 577 (1953), said, at 106, that “voluntary intoxication will not reduce murder to manslaughter nor will it excuse the crime.” That rule has been followed in Maryland without deviation. See Bateman v. State, 10 Md. App. 630, 272 A. 2d 64, cert. denied, 261 Md. 721 (1971).

If, in finding appellant guilty of second degree murder, Judge Grady presumed the existence of malice, his doing so placed no burden upon the appellant to prove, by any standard, any issue fairly generated by the evidence in the case. Neither did it relieve the State of its rightful burden of proving any issue in the case.

Neither in Evans, nor in Gilbert, was the intention of doing the act — the use of deadly force — an issue, and that aspect of malice required little if any discussion. We now say what was inherent in both of those opinions.

A. The use of deadly force raises a presumption of an intent to kill or to do grievous bodily harm. This presumption supplies one of the elements of malice. It stands as a presumption, and is rebutted only when a genuine issue is raised as to the non-existence of that intent.

B. Unless there is evidence which fairly generates an issue of fact as to the existence of justification, or of excuse, or of mitigation, there is a presumption, as to each such defense, of its non-existence.

C. When the evidence does generate an issue of fact as to the existence of one of these defenses, the presumption of its non-existence disappears. The burden then falls upon the State to persuade the fact finder, beyond a reasonable doubt, of its non-existence.

D. If the State fails to carry the burden of proving non-existence of the defense at issue, that defense prevails, and overcomes the original presumption that the intent to kill or to do grievous bodily harm was malicious.

E. If the defense which prevails is justification or excuse, the homicide is non-culpable, and the accused is not guilty. If the defense which prevails is mitigation, the homicide is not malicious, and is reduced to manslaughter.

We revert to what we said when we affirmed Jones’s conviction on direct appeal. We said, “The law presumes that in the absence of justification, excuse or some circumstances of mitigation, all homicides are committed with malice and constitute murder.” As a principle of law that statement remains equally valid today. It is in no way changed by Mullaney v. Wilbur, supra, or its precursor, In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970), or by the Evans cases or the numerous others which have discussed and analyzed their effect.

What those cases did change was the allocation of the burden of proving certain issues in criminal cases. There is no such thing in criminal trial procedure as a burden of proof in a vacuum. A burden can exist only with relation to a disputed issue fairly in the case. There was no disputed issue fairly raised by the evidence at Jones’s trial in the Criminal Court of Baltimore. Any question of burden of proof is just as irrelevant after Mullaney v. Wilbur as it was before.

There was no constitutional infirmity in the conviction and sentence of the appellant. He was not entitled to post conviction relief. Judge Cardin’s order denying relief was correct.

Order denying post conviction relief affirmed.

Appellant to pay costs.

      . The importance of the qualifying language in this statement of law could easily be missed by a jury. The statement is a guide to the bench and bar, but instructions should be tailored to the evidence in the case. The Court of Appeals reiterated in State v. Grady, 276 Md. 178, 186, 345 A. 2d 436 (1975), that “it is not always appropriate to quote from appellate decisions in jury instructions”.