author: Murphy, J.,

text:
    JAMES HENDERSON NEWKIRK a/k/a Gregory Smith v. STATE OF MARYLAND
    [No. 1145,
    September Term, 1975.]

      Decided September 15, 1976.

      The cause was argued before Robert C. Murphy, Chief Judge of the Court of Appeals, Robert E. Clapp, Jr., Associate Judge of the Sixth Judicial Circuit, and Robert L. Karwacki, Associate Judge of the Eighth Judicial Circuit, all specially assigned.

      Robert W. Baker, Jr., Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and David Katz, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, J.,

delivered the opinion of the Court.

Appellant Newkirk was charged in the Criminal Court of Baltimore with the murder of Ronald Rice, using a handgun in the commission of that offense, and of assaulting Reginald Rice with intent to murder him.

According to prosecution evidence adduced at the trial, the appellant made a homosexual advance toward James Nicholson in the presence of his brother Broderick and the two Rice brothers. James struck the appellant and the appellant threatened to kill him. The appellant and Ronald Rice then got into an argument after which the appellant left the scene, stating “I’m coming back.” Shortly thereafter, the appellant returned, armed with a gun and opened fire. He shot and killed Ronald Rice and wounded Reginald. He fired shots at Broderick Nicholson, who fled the scene.

According to the defense version of the incident, the appellant was attacked by the other youths. Broderick Nicholson produced a gun and appellant fought him for possession of the weapon. In the course of the struggle, two shots were accidentally discharged, resulting in the death of Ronald and the wounding of Reginald Rice. The appellant’s defense at the trial was that the two shootings were accidental and thus unintentional.

The court instructed the jury that the State had the burden to prove beyond a reasonable doubt that the appellant was guilty of the offenses charged. It said that under Maryland law “it is presumed that all felonious killings are murder in the second degree and the burden is upon the defendant ... to show that it constituted manslaughter or that it was justifiable homicide or an unintentional homicide.” The court told the jury that the burden was on the State “to elevate the offense to murder in the first degree .. . [by showing] beyond a reasonable doubt that the killing was willful, deliberate, and premeditated.” In its instructions, the court defined the term “willful” to mean “a specific purpose and design to kill as distinguished from accidental or negligent”; it defined “deliberate” to mean “acting in a cool state as distinguished from a heated state”; and it defined “premeditation” to mean “a planned scheme ahead of time before the commission of the fatal act . . . [an] entertaining in the mind of the desire to kill.” The court then defined “malice” to mean “the intentional doing of a wrongful act to another without legal excuse or justification” and said that it included “any wrongful act done willfully or purposefully.” The court instructed the jury that “[mjalice may be inferred from the use of a deadly weapon directed at a vital portion of the body and it may also be inferred from the nature and extent of the injuries inflicted.”

The court further instructed the jury that second degree murder was “the unlawful killing of a human being with malice and deliberation but without premeditation.” It said that the crime of assault with intent to murder “is assault ... coupled with the intention to do grievous bodily harm”; to find the appellant guilty of this offense, the court said “the jury must find that the facts are such that [had] the victim ... died, the person who made the assault would have been guilty of the crime of murder, either in the first degree or in the second degree.”

The court concluded its instructions with the following summary:

“. .. It has been contended by the State that the defendant left the scene and returned to the scene some time thereafter and fired several shots, one of which struck and caused the death of Ronald Rice, another of which struck and injured Reginald Rice, and there is a further contention on the part of the State that shots were fired at Broderick Nicholson and Broderick Nicholson ran to prevent injury or death to himself. The State further contends that the defendant, immediately upon the shooting of the victims, left the scene of the shooting.”
“The defense, on the other hand, has contended that the defendant was assaulted and was attacked by a group in which the victims were members and that in attempting to free himself or to protect himself, he grabbed the arm of Broderick Nicholson and that Broderick Nicholson at that time was holding the pistol in his hand and the pistol fired, not by any attempt of the defendant to fire the pistol. In other words, the contention is that the pistol was fired independent of the efforts of the defendant.”

No exceptions were taken to the instructions. The jury found the appellant guilty of the first degree murder of Ronald Rice, of using a handgun in the commission of that crime, and of assault with intent to murder Reginald Rice.

Appellant contends on appeal that his convictions must be reversed because the jury instructions unconstitutionally placed the burden upon him of proving that the shootings were accidental and constituted an excusable homicide. He contends that the burden of proving non-accident was upon the State and any jury instruction fairly interpreted as relieving the State of this burden is unconstitutional under In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), as explicated by Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd State of Maryland v. Edward Evans, 278 Md. 197,362 A. 2d 629 (1976).

The appellant also contends that the court’s instructions erroneously relieved the State of its burden to prove every element of the crime of murder by permitting the jury to infer malice from the nature and extent of the injuries inflicted. He urges that such an inference is completely illogical and improbable, “especially in light of a claim of accident,” and cannot constitutionally be drawn in view of the Supreme Court’s holding in Leary v. United States, 395 U. S. 6, 89 S. Ct. 1532, 23 L.Ed.2d 57 (1969).

We think it clear that the jury instructions (1) that all felonious killings are presumed to constitute murder in the second degree, (2) that an inference of malice may be drawn solely from the nature and extent of the injuries inflicted, and (3) that the appellant has the affirmative burden to prove his defense of accidental shooting were plainly violative of the constitutional principles enunciated in Mullaney and Winship. See Evans v. State, supra. But as we recognized in Dorsey and Wilson v. State, 29 Md. App. 97, 349 A. 2d 414 (1975), aff'd Josephine Dorsey v. State of Maryland, 278 Md. 221, 362 A. 2d 642 (1976), the constitutional impropriety of jury instructions is not dispositive; rather the impropriety must be judged in terms of its materiality and impact in a particular case. In other words, to determine the validity of a given conviction in view of Mullaney it is necessary to consider the relationship of the offense of which the accused is convicted to the particular defense he puts forth; and this relationship must be judged in light of the specific parts of the instruction dealing with that defense.

In Evans v. State, supra, we considered the effect of an erroneous allocation of the burden of persuasion as to the defense of mitigation due to adequate provocation where a jury returned a verdict for murder in the first degree; we said:

“. .. any error in instructing as to the allocation of the burden of persuasion on the subject of mitigation (such mitigation, for purposes of holding the homicidal mens rea down to the manslaughter level, being fairly an issue in the case) will have been cured by a verdict of murder in the first degree. The evil aimed at by Mullaney v. Wilbur, where the issue is manslaughter versus murder, is that a presumption of malice unfairly relieves the State of the burden of proving non-mitigation (mitigation being fairly an issue in the case). Where the ultimate verdict is that of murder in the second degree, the presumption may, therefore, have been pivotal. Where, on the other hand, the verdict is murder in the first degree, the State will have proved every element, including the negating of hot blood, beyond a reasonable doubt and due process will not have been offended.” (Footnote omitted.) 28 Md. App. at 658.

At 640-41 of Evans we considered the effect of an erroneous allocation of the burden of persuasion as to the defenses of justification or excuse where the resulting conviction was for felonious homicide in any degree. Generalizing with respect to the effect of an erroneous instruction that “all intentional homicide will be presumed to be with malice” (thereby unconstitutionally presuming non-justification and non-excuse), we said:

“If a fair reading of the instructions indicates that the ‘presumption of malice,’ in that broader and unqualified form, operated to relieve the State of its burden of ultimate persuasion on the issue of non-justification and/or non-excuse (where either is a fair issue in the case), Mullaney v. Wilbur will require a reversal regardless of the degree of felonious homicide on which the conviction was had. Unlike the situation dealt with where the only issue in the case affected by the presumption was mitigation and the only advantage the defendant was denied was the possible lowering of murder in the second degree to manslaughter, the harm on the issues of presumed non-justification and presumed non-excuse operates across the entire spectrum of culpability. If the defendant had had the benefit of a fair allocation of the burden of persuasion on these issues, he might well have been found not guilty totally and not simply guilty to a lesser degree....” 28 Md. App. at 664.

The jury was instructed in the present case that for it to find a verdict of first degree murder the State must prove beyond a reasonable doubt that the killing was willful, deliberate and premeditated, the element of willfulness being defined as “a specific purpose and design to kill as distinguished from accidental.” The State points out that the defense of accident is based on a theory of no intent, no willfulness, no premeditation, and no deliberation. It argues that by its verdict of first degree murder the jury found that the State sustained its burden of proof beyond a reasonable doubt that the appellant acted in a willful, deliberate and premeditated manner, thereby rejecting any claim of defense that the shootings were accidental. The State maintains that in these circumstances it did not rely on any unconstitutional presumption or inference of malice, and that notwithstanding the erroneous allocation of the burden of persuasion the first degree murder verdict “cured” the errors in the jury instructions.

In Dorsey and Wilson v. State, supra, a homicide case in which the trial court erroneously instructed the jury that the burden of proving mitigation was upon the defendant, we held, and the Court of Appeals agreed, that the jury’s verdict of murder in the first degree cured the error in the instructions. We there noted that under the trial court’s instructions the State was required to carry the burden of proving willfulness, deliberation, and premeditation and thus did not rely upon an unconstitutional presumption of malice. We said that the finding by a jury of the elements of first degree murder negated the existence of mitigating circumstances, since malice and mitigation due to provocation could not coexist.

Considering the facts of the present case in view of the instructions given to the jury, we think the same rationale is applicable to the defense of excusable homicide based on a claim of accidental: or unintentional killing. Since the jury found the appellant guilty of first degree murder, it is clear that it did not rely upon the erroneous instruction presuming all felonious homicides to constitute second degree murder; instead it concluded that the State had sustained the burden properly placed upon it by the instructions of proving, beyond a reasonable doubt, that the killing was willful, deliberate, and premeditated and hence not unintentional or accidental, as claimed by the defense. Cf. Stambaugh v. State, 30 Md. App. 707, 353 A. 2d 638 (1976), a case in which we reversed a conviction of second degree murder where the defense was accident and the jury was erroneously instructed that homicide was presumed to be murder in the second degree and that the burden was upon the defendant to establish excusable homicide. See also Wilson v. State, 28 Md. App. 168, 343 A. 2d 537 (1975).

As to the conviction of assault with intent to murder Reginald Rice, it is settled that to prove this offense the State must show, inter alia, that if death had ensued the killing would have constituted either first or second degree murder. Tate v. State, 236 Md. 312, 203 A. 2d 882 (1964); Bremer v. State, 18 Md. App. 291, 307 A. 2d 503 (1973). In view of the jury’s verdict of first degree murder in connection with Ronald’s death, it is patent that had Reginald died from his wound, inflicted upon him at the same time and under the same circumstances as that inflicted upon Ronald, the jury would have found him guilty of murder in the first degree. We therefore conclude that the erroneous instruction bearing on this offense was also cured by the first degree murder verdict.

Finally, we note that since no exceptions were taken to the instructions at the trial which was held after Mullaney was decided, appellant’s contentions were not preserved for appellate review. See John Henry Squire v. State of Maryland, 32 Md. App. 307, 360 A. 2d 443 (1976); Maryland Rule 756 g.

Judgments affirmed.1; costs to be paid by appellant.

      . James had gone home after the initial altercation.


source: Caselaw Access Project

author: Karwacki, J.,

license: Public Domain

text:
    ROGER ROBERT GARDNER v. STATE OF MARYLAND
    [No. 1159,
    September Term, 1975.]

      Decided September 15, 1976.

    The cause was argued before Robert C. Murphy, Chief Judge of the Court of Appeals, Robert E. Clapp, Jr., Associate Judge of the Sixth Judicial Circuit, and Robert L. Karwacki, Associate Judge of the Eighth Judicial Circuit, all specially assigned.

      Daniel W. Moylan, with whom were Edwin F. Nikirk and George S. Morgan on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General, and Robert S. Rothenhoefer, State’s Attorney for Frederick County, on the brief, for appellee.
   Karwacki, J.,

delivered the opinion of the Court.

The Appellant seeks reversal of his conviction of possession of marijuana with intent to distribute by the Circuit Court for Frederick County (Samuel W. Barrick, J.) on September 3, 1975 for which he was sentenced to five years under the jurisdiction of the Division of Correction and fined $10,000. The sole issue which he raises on this appeal is the propriety of the trial court’s denial of his pretrial motion to suppress evidence seized by the Maryland State Police on February 14,1975 from a cabin he had leased in Frederick County. The seizure of that evidence, consisting of a large quantity of marijuana and a banana-shaped pipe containing a marijuana residue, took place in the course of a warrantless search of that cabin by the police.

Since this Court is required to examine the entire record of the proceedings before the trial court at the hearing on the motion to suppress, Glover v. State, 14 Md. App. 454, 287 A. 2d 333 (1972), and to make an independent reflective constitutional judgment of the facts to assess the issue of whether the evidence in question was obtained in violation of the Fourth Amendment’s guarantee, Davis v. North Carolina, 384 U. S. 737, 741 (1966); Whitman v. State, 25 Md. App. 428, 435, 336 A. 2d 515 (1975), we will set forth in some detail the events preceding the seizure as described by the witnesses who testified before the trial court on the motion.

On February 13, 1975, the Appellant leased an A-frame cabin located in a wooded mountainous area near Wolfsville in Frederick County from the owner with whom he was acquainted. He went to the cabin briefly that day and after checking it over left and did not return until the next afternoon at approximately 3 p.m.

William W. Russell, Jr., a realtor with whom the cabin had been listed by its owner for rent, took an interested client to see the two-story A-frame structure on the morning of February 14, 1975 at approximately 10:30 a.m. unaware that the premises had been previously rented directly by the owner to the Appellant. Mr. Russell proceeded to show the entire cabin to the client and when they went upstairs Russell and the client observed some burlap bags on the floor that appeared to be “a bunch of trash”. Russell related that he and the client opened the flap on one of the bags and found therein numerous bundles the size of bread loaves. One of the bundles was split open and the client took a bit of the substance from within that bag and examined the same with his fingers. Neither Russell nor the client professed any expertise with regard to controlled dangerous substances but they concurred at that point in a suspicion that the substance which they had discovered was marijuana. Upon further inspection of the downstairs, Russell and the client opened the doors of a Ben Franklin stove and observed that it was loaded with stems of weeds that the client remarked “was probably part of the stuff that was upstairs”. At this point they left the cabin and after taking a look at the grounds, parted company, Russell returning to his office. On arriving there, Russell related these events to Mr. Renn, a realtor with whom he was associated advising Renn that the client was interested in renting the cabin but only after the suspicious substance which had been discovered there was removed. After this discussion the State Police were called at the suggestion of Renn and Trooper Paul J. Gerstner interviewed Russell at the realty company at about noon the same day. Russell advised the trooper of what had occurred that morning at the cabin and stated that although he could not identify the suspicious substance discovered there for certain “I thought possibly it might be marijuana”.

At approximately 4 o’clock that afternoon Trooper Gerstner accompanied by Trooper Ronald Herring and Detective Sergeant Charles L. Hubbell of the Maryland State Police contacted Russell again and asked him to show them where the cabin was located. At this time Russell informed the police that he had just learned from the owner of the cabin that it had been rented directly by the owner to the Appellant the day before. The troopers indicated when Russell joined them that “they would like to go up immediately and if it was necessary they could obtain a search warrant”.

However, a warrant was not obtained and the police and Russell arrived at the cabin at about 5:55 p.m. A car was parked outside and there were lights on inside. From this point forward the testimony of the witnesses is not consistent, and we set forth the facts as determined from the conflicting testimony by the trial court sitting as trier of the facts at the hearing on this motion. Johnson v. State, 30 Md. App. 280, 352 A. 2d 349 (1976). When the troopers knocked on the cabin door it was opened by the Appellant. One of the troopers presented his identification and stated that they were State Police and would like to come in. The Appellant stepped back as if to gesture an invitation to come in and the officers and Mr. Russell’ entered the cabin. After they entered, the initial conversation centered on the Appellant’s right to be in the cabin. When the Appellant defended his possession and repeatedly requested the troopers to telephone the owner and verify his tenancy, the conversation shifted and the troopers asked the Appellant if they could look around. They advised him that he did not have to let them look around, and that if it was necessary they could get a search warrant. The Appellant responded “If the real estate people didn’t call you then why are you here?” And Sgt. Hubbell said, “We have reason to believe there’s a supply of marijuana or related substance in the second floor and we would like to look”. During this conversation Trooper Gerstner was standing behind Trooper Herring, and next to the Ben Franklin stove. Trooper Gerstner picked up a piece of a stem that was in front of the stove on the floor and said “it wouldn’t be very hard to get a search warrant with this type of evidence”. The Appellant responded “in that case maybe you should get a search warrant”.

Trooper Herring asked the Appellant for some identification with which to apply for a search warrant and sat down at a table to record it. While examining the identification, he noticed a banana-shaped pipe on the table. He picked it up, smelled it and examined it. He then placed the Appellant under arrest for possession of marijuana. The Appellant retired to the other side of the room, sat down on a chair and made the statement, “I think you fellows know more about what’s going on around here than I do; you may as well look upstairs”. The Appellant was then handcuffed to a chair and two of the troopers went upstairs. They then called down and told the Appellant he was also under arrest for possession of marijuana with intent to distribute. The substance found on the second floor of the house was subsequently identified as approximately 584 pounds of marijuana.

The sole justification offered by the State for warrantless search and seizure in this case is that it was voluntarily consented to by the Appellant. Since we are of the view that the search and seizure cannot be justified on this theory, we must reverse the conviction and remand this case to the Circuit Court for Frederick County for a new trial.

In Bumper v. North Carolina, 391 U. S. 543 (1968), Schneckloth v. Bustamonte, 412 U. S. 218 (1973), and U. S. v. Watson, 423 U. S. 411 (1976), the Supreme Court has mandated the scrutiny which must be applied to an alleged voluntary consent by a citizen to a search by a governmental authority otherwise prohibited by the Fourth and Fourteenth Amendments to the U.S. Constitution. As Mr. Justice Stewart writing for the Court in Schneckloth stated:

“ ... it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.” at p. 233.

This Court in Whitman v. State, supra, following such an analysis reversed a conviction for illegally transporting cigarettes without the required Maryland cigarette stamps. The defendant was followed from North Carolina by a police informant. When he entered Maryland the defendant was stopped by Maryland State police at approximately 1:30 a.m. He was arrested and given his Miranda warnings. At this point one of the officers requested the defendant’s permission to search the defendant’s truck which the defendant refused. The defendant and the truck were taken into custody and transported to a State Roads Barn. The troopers joined by other investigators again requested the defendant’s consent to search. When he again refused, they told him that they would get a warrant and they began the process. Soon thereafter the defendant relented and opened the vehicle for the police. In holding that this did not constitute a valid consent search, this Court stated:

“While each case must rest for decision upon its own facts and the ‘totality of the circumstances,’ an arrest without probable cause followed by custodial prodding for the arrestee’s consent to a search, combined with police representations that the issuance of a warrant will be practically automatic — these are circumstances calculated only to persuade the individual that insistence upon Fourth Amendment guarantees will secure for him merely a delay of the inevitable search rather than the protection against unreasonable search and seizure to which he is constitutionally entitled. Such a melange of fact and circumstance as was here presented is, we think, inherently coercive.” Id., at p. 456

We believe this holding in Whitman to be dispositive of the instant case.

The record supports the trial court’s finding that the officers’ initial entry into the cabin was permissive in nature. However, permission to enter cannot be equated with a voluntary consent to search the premises. To the contrary, in this case it is manifest from the record that after the Appellant invited the officers to enter the premises he insisted that they obtain a warrant before searching the premises for suspected marijuana. An invitation across the threshold of a fixed premises without warrant will not justify a general exploratory search of that premises. Brown v. State, 15 Md. App. 584, 292 A. 2d 762 (1972). Legally across the threshold of the Appellant’s home the troopers first unsuccessfully attempted to elicit from the Appellant his consent to their search of the premises for a cache of marijuana, principally by assuring him that his resistence to that search would only delay the inevitable since a search warrant “wouldn’t be very hard to get”. When Appellant resisted these importunings, the troopers then placed him under arrest following Trooper Herring’s seizure of the banana-shaped pipe and his conclusion that the bowl thereof smelled of marijuana. The State’s claim that the arrest was justified because Officer Herring smelled the odor of marijuana in the banana-shaped pipe will not pass muster. Accepting the first level fact found by the trial court of a valid intrusion by the police officers upon the first floor of the premises and the fact that the banana-shaped pipe was in open view, the plain view doctrine authorizing warrantless seizures of evidence of crime explicated in Coolidge v. New Hampshire, 403 U. S. 443 (1971) and discussed by this Court in Brown v. State, supra, did not justify the seizure of the pipe for the purpose of searching it by smelling the bowl for incriminating evidence. Wilson v. State, 30 Md. App. 242, 351 A. 2d 437 (1976). In Wilson, this Court rejected application of the plain view doctrine to seizure of suspected stolen goods for the purpose of copying serial numbers therefrom while police officers were legally upon a fixed premises in execution of a search warrant issued for suspected narcotics located there. Judge Lowe there stated for this Court:

“Just as the ‘plain view’ doctrine will not justify the seizure of suspicious articles which are not obviously ‘evidence’ of a crime, it will also not justify the copying of serial numbers from articles found on the premises, but unrelated to the object of a search, in order to determine later whether they are stolen goods ... It is not the subsequent seizure we find abhorrent, but rather the rummaging about as if under a general warrant, in hopes of finding something illicit. It was not ‘immediately apparent’ to the officer that the goods he listed were stolen, even if their quantity did arouse suspicion.” Id., at p. 250

The examination and smelling of the pipe to determine its contents is as much a search as was the subsequent investigation in Wilson, supra, to determine if the stereo equipment was stolen. The pipe sitting alone on the table was totally innocent in nature. It was not immediately apparent to the officers that what they were observing was seizable evidence. The mere suspicion of the officer that marijuana might be found in the pipe could not justify his seizure of it and search of it by smelling without a validly obtained warrant. Since the Appellant’s arrest was supported for its probable cause by the fruits of the search which followed this illegal seizure, it was the fruit of this illegality and hence invalid. Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975).

We are persuaded that the coercive factors substantially outweigh the non-coercive ones, and therefore conclude that under the totality of the circumstances presented here there was no more than acquiescence by the Appellant to a claim of lawful authority by the State Police in submitting to the search of his premises. So concluding, we hold that the State has not met the burden imposed upon it to establish that the Appellant freely and voluntarily abdicated his right to demand that his house not be searched until the probable cause for that search was first submitted for judicial evaluation.

Judgment reversed; case remanded for a new trial; costs to be paid by Frederick County.

      . The trial court relied principally upon the testimony of Russell and to a lesser degree upon that of Detective Sergeant Hubbell and Troopers Gerstner and Herring and the decision by that court on the motion to suppress was determined upon the facts as they represented them. As Judge Moylan stated for this Court in Walker v. State, 12 Md. App. 684, 695, 280 A. 2d 260 (1971) and as this Court reiterated in Whitman v. State, supra at 435:
      “What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts ... we must make our own independent judgment as to what to make of those facts; we must in making that independent judgment, resolve for ourselves the ultimate, second-level fact....”
      Accordingly, we give appropriate and substantial effect to the trial court’s resolutions of conflicts in evidence as to the occurrence or non-occurrence of the factual events and happenings. Therefore, we decide the issue on this appeal under the first-level facts as accepted by the trial court.

      . Appellant testified that he asked if the police had a warrant, that they said that they didn’t need one because they were with the real estate agent who had control over the premises and that they just walked into the living room. He consistently maintained that he never consented to their entry of the cabin or their search thereof insisting at all times that his private residence could not be entered and searched without a warrant.

      . The troopers did not first request the Appellant to execute the written consent form which is regularly employed by the Maryland State Police in Frederick County in warrantless search cases. It contains the following explanation:
      “I fully understand that I need not consent to this search and that the items seized may be used against me in a court trial. I further understand that I have the right to withdraw my consent at any time and require any further search to be executed on the strength of a legal search warrant.
      This consent has been given by me to the above named officer knowingly and voluntarily and absent of any threats, promises or inducements of any kind.”

      . Cf. Dixon v. State, 23 Md. App. 19, 327 A. 2d 516 (1974), where this Court held pills seized from a car during police inventory search inadmissible under the plain view doctrine where the officer making the inventory check had no probable cause to believe that the items ultimately seized were contraband or other evidence of crime. Also see Shipman v. State of Alabama, 282 So. 2d 700 (1973) holding the seizure of heroin from the defendant invalid under the plain view doctrine where the arresting officer had no idea what the white substance in the cellophane package he saw contained, Nicholas v. State of Texas, 502 S.W.2d 169 (1973), holding the seizure of photographic negatives from defendant’s apartment invalid under the plain view doctrine where the seizing officers had to examine the negatives through a light before they became aware that the films might be evidence of crime; State of Louisiana v. Meiehel, 290 So. 2d 878 (1974), where seizure of pill bottle held invalid under the plain view doctrine where officer did not know the nature of the pills until after he picked up the bottle and examined it; and State of Louisiana v. Navarro, 312 So. 2d 848 (1975), holding seizure of plastic bag of marijuana invalid under the plain view doctrine where the officer saw plastic bag protruding from automobile sun visor but could not ascertain the contents of the bag until he pulled down the visor; and the concurring opinion of Mr. Justice Stewart in Stanley v. Georgia, 394 U. S. 557 (1969) where police officers legally upon defendant’s premises in execution of a search warrant issued to investigate bookmaking activities came upon motion picture film which they examined and determined obscene, this film being incriminating evidence in defendant’s subsequent conviction for possession of pornographic materials.


author: Morton, J.,

text:
    ANDREA S. SCHMERTZ v. KENNEDY B. SCHMERTZ
    [No. 1213,
    September Term, 1975.]

      Decided September 15, 1976.

    The cause was argued before Morton,  Gilbert and Lowe, JJ.

      James J. Bierbower for appellant.

      Michael T. Nalls, with whom were J. Willard Nalls, Jr., and Nalls & Nalls on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

This is an appeal by the appellant/wife from an order issued by Judge John J. Mitchell, sitting in the Circuit Court for Montgomery County, that “the alimony originally established by the agreement of the parties and adopted by this Court in its Decree of April 1, 1968, be * * * abated, pending further order of the Court * * The April 1, 1968, decree granted the appellant/wife a divorce a vinculo matrimonii from the appellee/husband and incorporated therein the provisions of a separation and property agreement between the parties dated September 18, 1967. On January 24, 1975, the appellee/husband filed a “Motion to Terminate Alimony Payments” and after a hearing before a domestic relations master, the chancellor signed the order terminating the alimony payments.

The appellant/wife presents two questions for resolution:

“1. Are payments in a Separation Agreement for the wife’s support ‘alimony’ when she specifically waives alimony in the Agreement?
2. Are payments in a Separation Agreement for the wife’s support ‘alimony’ when the payments are not limited to the period the parties live separately?”

Paragraph 4 of the agreement contains inter alia the following provisions:

“(b) until the Wife shall remarry following any divorce between the Husband and Wife, until the Wife shall die, or until the Husband, shall die, whichever event shall first occur, the Husband shall pay to the Wife, as alimony for her support and maintainance [sic] the.sum of Two Thousand Seven Hundred and No/100 Dollars ($2,700.00) per annum, payable in monthly installments of Two Hundred Twenty-Five and No/100 Dollars ($225.00), due on the first day of each month following the execution of this agreement;
(c) in the event of the death of the Husband before all obligations of his pursuant to this paragraph 4. shall have terminated, such obligations shall thereupon cease and shall not constitute a charge upon his estate.”

Paragraph 16 of the agreement provides:

“Other than provided for in this Agreement, the Wife hereby waives alimony, support, maintenance, and alimony pendente lite, and agrees to file no action against the Husband in which she requests alimony, maintenance, support, and alimony pendente lite of any type whatsoever.”

The appellant takes the position that the chancellor had no power to modify the agreement because the provisions for support in paragraph 4 cannot be construed as being technical alimony since the wife had expressly waived any right to alimony by the provisions of paragraph 16. The master and chancellor did not see paragraph 16 in that light and we think properly so. It is true, as appellant contends and the master in his report recognized, that it was rather strange to insert paragraph 16 in the agreement if the agreement in paragraph 4 did provide for alimony. Otherwise stated, why provide for alimony in paragraph 4 and refer to waiving alimony in paragraph 16. But our judicial function is not to wonder at the ways of legal draftsmen, but to ascertain, objectively, what the parties ultimately intended.

We think a fair reading of the expression in paragraph 16, “Other than provided for in this agreement, the Wife hereby waives alimony * * * ” demonstrates that the parties believed that provision for alimony had been neatly packaged in paragraph 4 and that the wife would make no claim for alimony other than that provided for in paragraph 4. Whether paragraph 16 sought to prevent the wife from seeking an increase in alimony at some future time and whether it effectively accomplished this is not before us.

It is true, as appellant argues, that designating the payments called for in paragraph 4 as “alimony” cannot convert the payments into alimony if they were, in fact, contractual. And the fact that the wife testified that she understood the payments were “alimony” cannot accomplish the conversion. Those factors would seem, however, to cast some light upon the true intention of the parties. In any event, we think a reasonable reading of paragraph 16 with paragraph 4, as well as paragraph 19, compels the conclusion that the parties did not intend that the wife waived her right to alimony. Accordingly, we find no fault with the action of the chancellor in abating the payments called for in paragraph 4 pending further order of the court.

Turning to appellant’s second contention, this Court stated in Sands v. Sands, 21 Md. App. 659 (1974), at 662, that “unless an agreement between a husband and wife relating to support payments for the wife spells out and provides for every attribute or element which the definition of alimony requires, the support payments are a contractual obligation and not alimony.” We there set forth the definition of alimony as articulated by Judge Powers for this Court in Simpson v. Simpson, 18 Md. App. 626 (1973), at 628:

“1. Alimony is a money allowance payable under a judicial decree by a husband at stated intervals to his wife, or former wife, during their joint lives or until the remarriage of the wife, so long as they live separately, for her support and maintenance.” [Footnote omitted.]
a. It must terminate on the remarriage of the wife.
b. It must terminate on the death of the wife.
c. It must terminate on the death of the husband.”

We found in Sands that the agreement between the husband and wife there under review failed to include “a number of crucial ingredients necessary for the support payments to reach the legal status of alimony. First, there is no provision that the payments terminate on the remarriage of the wife. Second, there is no provision that the payments terminate on the death of the husband. Third, there is no provision that the payments shall continue only as long as the parties remain separated.”

As the appellee points out, the assertion that the agreement there under review did not contain a provision that the payments shall continue only so long as the parties remained separate was not essential to the decision and, upon reflection, we are of the opinion that it may have extended prior court holdings in an overbroad fashion.

The fact that the parties must live separate and apart is, of course, an essential ingredient or characteristic of alimony. Our Courts have consistently defined alimony as payments by the husband for the wife’s support during their joint lives or until the wife’s remarriage, so long as they live separately. Simpson v. Simpson, supra. While it has been held that an agreement providing for support payments to the wife by the husband must expressly provide that the payments are payable during their joint lives or until her remarriage in order to consider the payments alimony, it has not been a further requirement that the agreement specifically provide that the payments be made only so long as the parties remain separate and apart. This requirement has been apparently dispensed with because if it comes about that the parties cease to live separate and apart, it would appear to be their intention to abrogate the agreement under which they contracted to live apart and the obligation of the husband to make the payments called for in the agreement would be terminated. Mach v. Baranowski, 152 Md. 53, 58-59 (1927).

The agreement before us was predicated upon the parties living separate and apart. It is entitled “Separation and Property Settlement Agreement.” It states that “the parties are living and have been living separate and apart * * It provides: “The parties shall continue to live separate and apart * * It clearly was intended that the agreement should continue as long as the parties lived separate and apart. We are of the opinion, therefore, that the failure to state in paragraph 4, with specificity, that the payments would continue only so long as the parties lived separately is not a fatal flaw in the finding of the chancellor that the payments were alimony and not a contractual obligation of the husband.

Judgment affirmed; costs to be paid by appellant.

      . Paragraph 19 reads, in part: “ * * * and the considerations mentioned herein shall be in full satisfaction and discharge of alimony, support and other claims and demands which might or could be made by the Wife for her maintenance and support.”

      . See Ch. 849, Laws of 1975, which authorizes a modification of support payments called for in agreements entered into after July 1, 1976, whether they be deemed alimony or contractual payments.


author: Moore, J.,

text:
    STANLEY SODY v. PHYLLIS L. SODY
    [No. 1217,
    September Term, 1975.]

      Decided September 16, 1976.

      The cause was argued before Movlan, Moose and Mason, JJ.

      Frank B. Cahn, II, for appellant.

      Michael G. Hendler and Bennett Gilbert Gaines for appellee.
   Moore, J.,

delivered the opinion of the Court.

This is an appeal in a matrimonial action wherein the appellant husband challenges certain of the chancellor’s findings and orders relating to property, alimony and counsel fees. Perhaps the most significant issue arises out of the court’s determination that a former joint bank account of the parties was the sole property of the wife.

The appellee, Phyllis L. Sody, was awarded a divorce a vinculo matrimonii in the Circuit Court for Baltimore County (Haile, J.) in a decree which also granted custody of a minor child to the appellee but reserved for further hearing all matters relating to child support, alimony, counsel fees and division of jointly owned personal property. After further evidentiary hearings, the court (Brannan, J.) made, inter alia, the following orders which are the subjects of this appeal:

1) That the proceeds withdrawn by appellee from the joint savings account of the parties prior to the filing of appellee's bill of complaint were the sole and separate property of appellee;
2) That the sum of $5 per week was to be paid as alimony by appellant to appellee to continue during the lives of the parties or until she should remarry;
3) That the sum of $2,500 be paid as'additional counsel fee to counsel for the appellee to be divided equally between the parties;
4) That the sum of $350 be paid by appellant to appellee, representing one-half of a private ' investigator’s fee paid by her;
5) That the sum of $836.48 be paid by appellant for automobile rental payments incurred by appellee from August 12, 1975, to October 21, 1975, the date of the hearing, when appellant disclosed the location of a 1973 Mercury Cougar automobile primarily used by appellee, but secreted by appellant.

The record discloses that the parties owned a residence in Baltimore County, as tenants by the entirety. It was valued by the wife in the sum of $45,000. They continued to live in it, without cohabitation, after the filing of the bill of complaint by the wife on June 26, 1974; the wife moved out on April 1,1975.

With respect to his financial condition, appellant testified that he had been unemployed since February, 1975, drawing unemployment compensation in the amount of $99.00 per week. These payments had terminated by the time of trial. He had previously been employed by Needlecraft Corporation of America as national sales manager, earning $27,500 per annum. He testified that he lost his job when the company was purchased by another corporation. Thereafter, he attempted several unsuccessful business ventures, including a loan company and a men’s cologne distributorship. At the time of trial, his only source of income was $384 per month representing installment payments from the sale of a corporation, Magnet Enterprises, which had owned a downtown Baltimore bar, operated by Mr. Sody. The record reveals that the parties jointly held 75% of the stock of Magnet Enterprises prior to its sale, and that the remaining interest was owned by appellant’s mother. Against these limited assets, appellant testified to monthly living expenses of $552.

According to appellee’s testimony, she was employed as a real estate salesperson earning commissions of approximately $8500 in 1974 and $7500 in 1975. Previously, she worked part time for five years for the City of Baltimore. Mrs. Sody’s financial statement showed requirements of $1193.82 a month, without apportionment, for the support and maintenance of herself and the minor female child, Kelly, age 14. Included in this assessment of needs was a $295 monthly payment under a mortgage of $24,000 on her residence, a townhouse which she had purchased for $50,000. (The $26,000 down payment was borrowed from her mother, to be repaid when convenient.)

With respect to the joint bank account of the parties, the appellee testified as follows on direct examination:

“Q Now, when you and your now ex-husband first had a parting of the ways did you — was there a joint bank account?
A Yes.
Q Joint savings account?
A Yes, there was.
Q Where was that account located?
A It was located in Baltimore Federal Savings and Loan.
Q Baltimore Federal Savings and Loan?
A Yes.
Q And did you withdraw the money from that account?
A I did.
Q And where did you deposit that money?
A In Yorkridge Federal.
Q And in whose name did you deposit it, that money?
A My name.
Q You have that bank book with you?
A Yes, I do. It is in that envelope.
Q Now, I show you a savings account book, number 10546-5, Yorkridge Federal Savings and Loan Association, titled in the name of Phyllis Sody, and trust for self and Kelly Sody, joint owners, subject to the order of Phyllis Sody. Balance at death of either to belong to the survivor. And I ask you if you can identify this bank book?
A Yes, that’s mine.
Q Alright. Now, the first deposit in this bank book is on June 12,1974?
A Right.
Q In the amount of $9,423.91. And additional deposit on June 13, 1974, the day after, of $150.00, starting out there with a full balance of $9,573.91, is that correct?
A That’s correct.
Q Now, you say this money came from a joint account in the name of yourself and your husband from Baltimore Federal?
A That’s correct.
Q Where did that money come from?
A It was money that we had saved.
Q Money that you had saved?
A Right.
Q And any other specific sources in addition to money that you had saved?
A Well, there was some money from Magnet Enterprises that was put into this bank account.”

Appellee later testified that $2,300 of the total amount of the joint account represented the proceeds of a check drawn on the Magnet Enterprises checking account and deposited by her in the joint account at the request of appellant.

Between the time the old account was closed out and the date of the hearings below, appellee had made withdrawals from the new account. These included:

$300.00 — stereo set for son’s birthday
835.00 — to repair or replace an air conditioner compressor
250.00 — contact lenses for daughter, Kelly
1165.04 — legal fees
129.00 — car payment
100.00 — living expenses
700.00 — private investigator fees

By the time of trial, the balance in the account was $4,093.04.

On cross-examination, Mrs. Sody gave the following testimony concerning her interest and that of Mr. Sody in the joint account:

“Q Oh, well, are you saying then that half the bank account is your husband’s, or all of it is your husband’s, or what?
A Well -
MR. HENDLER [Appellee’s counsel]: Objection.
THE COURT: Overruled.
A Half of the bank account was supposedly his.
MR. CAHN [Appellant’s counsel]: Half of the bank account was supposedly his?
A That’s correct.
Q (By Mr. Cahn) But, you took it all?
A That’s correct.”

When Mr. Sody took the stand, his testimony concerning the account was limited to the following:

“Q Alright. Mr. Sody, there was some testimony about a bank account at Baltimore Federal Savings and Loan that was a joint account, you and your wife, is that correct?
A That’s correct.
Q That was monies put in from your earnings?
A That’s correct.
Q Some monies went in from Magnet Enterprises,, is that correct? $2300?
A $2300, that’s right.
Q And have you ever gotten any money out of that joint account? In the last year and a half?
A I haven’t seen a penny of it.”

As for the car rental of $836.48 ordered to be reimbursed by Mr. Sody, the wife testified that on August 12,1975, she reported to her insurance company that the 1973 Mercury Cougar was missing from the front of her house. The insurer permitted her rental fees for a 30-day period before reimbursing her for the loss. Shortly before the expiration of the 30 days, however, she learned, through her attorney, that the car had not been stolen, but that it had been taken by the appellant without his wife’s knowledge or permission. The insurance company then refused to pay for the car rental. Mrs. Sody testified that she had to rent a car and that the total expense was $836.48.

We will consider appellant’s assertions of error in the order presented.

I

Did the lower court properly declare the proceeds of the joint savings account to be the sole and separate property of the wife?

The Maryland Code (1974), Courts and Judicial Proceedings, § 3-603 (b) provides:

Determination or division of personal property. — A court granting a limited or absolute divorce may determine the ownership of personal property, other than chattels real, held, possessed, or claimed by a party to the divorce proceedings, and in accordance with that determination may:
(1) Make a division of personal property between the parties;
(2) Order a sale of personal property and a division of proceeds; or
(3) Make any other disposition of personal property it deems proper, (formerly Code (1957), Art. 16, § 29).

It is clear that a court of equity, sitting as a divorce court, does not have discretion to award the property of one spouse to the other. Abell v. Abell, 12 Md. App. 99, 103, 277 A. 2d 629 (1971). As stated in Joyce v. Joyce, 10 Md. App. 516, 522-23, 276 A. 2d 692 (1970):

“This statute does no more than to empower the court, in decreeing a divorce, to determine the ownership of the personal property of the parties and to apportion the property accordingly. Lopez v. Lopez, 206 Md. 509. It confers no power to transfer the property of either spouse to the other, or otherwise to dispose of it. And it is firmly established that a court of equity has no power, unless conferred by the legislature, to transfer the property of either spouse to the other, or otherwise to dispose of it.. . . Hall v. Hall, 180 Md. 353. See Brucker v. Bensen, 209 Md. 247; Lickle v. Boone, 187 Md. 579; Gunter v. Gunter, 187 Md. 228; Elko v. Elko, 187 Md. 161; Dougherty v. Dougherty, 187 Md. 21.”

In Abell v. Abell, supra, this Court reversed the chancellor’s unequal distribution of personal property between husband and wife once a finding had been made that the property was jointly owned. Speaking for the Court, Judge Morton wrote, “[t]hus having found that the personal property was owned equally by the parties, the Chancellor was powerless to do anything more under the terms of [Art. 16] § 29 [now Cts. & Jud. Pro., § 3-603 (b)] than to make an equal division between the parties of the jointly owned property....” 12 Md. App. at 104. (Emphasis added.) See Gebhard v. Gebhard, 253 Md. 125, 252 A. 2d 171 (1969).

Appellant argues that the chancellor erred in awarding the proceeds of the Yorkridge Federal Savings & Loan Association savings account to his wife. It is his position that it was the duty of the chancellor to divide the account equally, “if not at the time of the removal of the funds by the appellee, at' least at the time that the matter was heard in CQurt.”

The burden of proving an interest in the property is upon the spouse who asserts the affirmative of the issue. Woodall v. Woodall, 16 Md. App. 17, 25, 293 A. 2d 839 (1972). While the savings and loan association’s records and the original bank book were not offered in evidence, there was no. issue between the parties that the savings account was joint. Appellee herself testified that the money belonged to both parties in equal shares and was derived from mutual savings. The chancellor, however, apparently felt that since each joint owner had the legal authority to withdraw the entire amount, once the account was closed out by the wife, the husband’s interest was' divested. In his opinion from the bench, he stated, in part:

“And while there seems to be rather no Maryland case I can find on point, and while it seems at times very inequitable, it was a joint account subject to the withdrawal of either one, there was no notice given to the bank of any problem, Mrs. Sody withdrew the funds and has used what she has expended to her family’s use and not to her own personal use. So I find that Mrs. Sody was entitled to withdraw the funds from the joint account, and she is entitled to keep the remaining balance of the proceeds.”

Because the savings account was joint, the court was unquestionably correct in stating that Mrs. Sody was entitled to withdraw the funds. Such a right is conferred by statute. Maryland Code (1957, 1976 Repl. Vol.), Art. 11, § 102. A bank is thus protected from any claim by one joint account owner when the other draws upon the account in whole or in part. See also Code (1957, 1973 Repl. Vol.), Art. 23, § 145.

The right to withdraw, however, is not dispositive of the husband’s claim that he is entitled to a one-half share in, at least, the balance on hand. Jones v. Hamilton, 211 Md. 371, 127 A. 2d 519 (1956). In the case cited, Hammond, J. (later Chief Judge) presents a discursive analysis of Maryland case law pertaining to conflicting claims of co-owners, and of surviving owners of joint accounts where the co-owners are deceased.

In Jones, the sum of $10,000 had been deposited in a savings and loan association joint account in the names of a husband and wife, Sammie C. Elam and Sara F. Elam, “as joint tenants, with the right of survivorship, and not as tenants in common.” A few months after the account was opened, the husband notified the savings and loan association that none of the funds should be released to his wife because divorce proceedings were pending, and that the account should be kept intact until the outcome of the litigation. Thereafter, the wife presented the account book and made demand for the full sum on deposit. The bank refused. Within a few days, the wife died, intestate, and the husband made demand for payment of the funds as the surviving joint owner. The bank thereupon filed a bill of interpleader. A short time thereafter, the husband was shot and killed. The trial court was thus presented with the conflicting claims of the personal representatives of each. The husband’s administratrix pressed the claim earlier asserted by him that he took by survivorship. The administratrix of the wife claimed the money on the ground that her intestate had duly presented the passbook and was entitled by that act to payment.

The chancellor held that the possessor of the passbook was entitled to draw the money upon presentation of the book, that payment had been wrongfully refused, and that the conduct of the savings and loan association “created a chose in action in favor of Mrs. Elam against the bank.” The decree awarded the fund to the wife’s estate.

The Court of Appeals remanded the cause, without affirmance or reversal, for further proceedings. Judge Hammond’s opinion makes clear that the reason for the remand was that the record was insufficient to make a determination of the fundamental issue involved namely: “The ownership of the fund and the actual intention of the owner or owners in following the course they did with regard to the creation of the account and the deposit of money.” 211 Md. at 381. Affirming the right of either to draw the money on demand, the Court pointed out that, as holder of the book, she was the owner of a chose in action as much before the demand as afterwards. The opinion then states:

“In both cases the basic question is, as it still would have been if she had received the money on the day she demanded it, (although it might have had to be answered in a different form of action) — whose money was it originally, and by what right and in what capacity, as between her and her husband, did she withdraw and receive it.” (Emphasis added.) 211 Md. at 383.

In the course of Judge Hammond’s scholarly opinion it is disclosed that reliance was placed by the husband’s administratrix on cases from other jurisdictions following what the court referred to as “the New York rule,” defined as follows:

“New York courts hold that where one joint tenant withdraws all of the money in a joint bank account and redeposits it in his or her own name, or otherwise appropriates it, co-tenancy is not thereby terminated and the interest of each depositor remains as it was in actuality within the terms and limits of the joint tenancy when the funds stood to their joint account.” 211 Md. at 875.

The opinion also points out that a somewhat different view was taken in New Jersey and Massachusetts:

“There are New Jersey and Massachusetts cases that take the view that withdrawal of the funds by one joint tenant severs the tenancy and makes the owners tenants in common, so that one-half of the account is held by the withdrawer as agent or trustee of the other party.” 211 Md. at 375-76.

In Jones, the effect of these decisions was felt not to require consideration for the reason that “this Court has decided many cases that have established the Maryland law in the matter of joint accounts.” 211 Md. at 276. After a discussion of numerous Maryland cases, the Maryland law was thus encapsulated:

“The distillation of the Maryland cases is that in a contest between those claiming as co-owners or as surviving owner of a bank or building association account, the Court has sought to find who was the original owner of the money on deposit, the intention of the owner as to the fund, the mechanics employed to effectuate that intent, and their effectiveness. If the mechanics are adequate to effectuate the intent, the Court will gratify the intent, whether or not the trust form has been used.” 211 Md. at 380. (Emphasis added.)

The court then observed that in the record before it there was “neither agreement nor any evidence as to who owned the money originally.” 211 Md. at 380. Surveying the possible factual alternatives, Judge Hammond observed:

1) If the money was the wife’s and she retained the passbook, the husband would not be entitled to take it as survivor, citing Gorman v. Gorman, 87 Md. 338 (1898); Whalen v. Milholland, 89 Md. 199 (1899).
2) If the money was the husband’s and after the deposit he had made an unequivocal delivery of the passbook to the wife with a donative intent, and she had accepted, her estate would be entitled to the account under Milholland, supra.
3) If the money was originally all the husband’s or belonged in part to each, “Mrs. Elam’s possession of the account book and her right to withdraw, could have been as agent, or trustee, for purposes mutually agreed on before the deposit, or to be agreed on from time to time.” 211 Md. at 381.

In the instant appeal, the wife candidly admitted in the testimony quoted above that (a) the account was joint, (b) her husband was entitled to a one-half share, (c) that it represented their mutual savings and (d) had been used for family purposes as, for example, to pay for their son Harry’s college tuition and books. Indeed, the chancellor found sufficient evidence to hold that the intention of the parties was to use the account for their mutual benefit, and concluded that all of the expenditures made by Mrs. Sody, after the new account was established, were proper expenditures, beneficial to Mr. and Mrs. Sody and their children.

In further holding, however, that upon dissolution of the marriage she was entitled to the balance, we think that under the guidelines of Jones, supra, the court was clearly erroneous. We think it obvious that the parties mutually intended the funds to be used for family purposes, and that once the marriage was dissolved, they became tenants in common of the joint account and the husband was entitled to a one-half interest in the balance of the account.

With respect to the withdrawals made by the wife, it is plain that the sums were not disbursed by the express consent or acquiescence of the husband. As the Court of Appeals of Missouri stated, however, under similar circumstances in Ray v. Ray, 336 S.W.2d 731, 738 (1960):

“Nevertheless, so much thereof as went to accomplishment of the common purpose of the parties should be considered as taken by a running or implied acquiescence.. . . [W]here the withdrawals are expressly or impliedly authorized or when they are applied to the mutual benefit of the parties or to the accomplishment of the common purpose. . . we think there is usually a ‘built-in’acquiescence. ” (Emphasis added.)

On the other hand, we do not perceive that the wife’s expenditures in the sum of $1165.04 for legal fees and $700.00 for the fees of a private investigator could be properly categorized as expenditures for mutual benefit. Again, to quote the language of the court in Ray, supra:

“Plaintiff says he used part of the money to pay his lawyer. If the attorney was employed in connection with suing the defendant, or in reference to taking over the joint property — in other words, for a purpose antagonistic to the defendant — we think it can hardly be said to have been an expenditure for mutual benefit which would carry the implied consent or acquiescence. The same thing would be true of moneys spent for detectives to shadow the wife.” 336 S.W.2d at 738-39.

Accordingly, we find that an appropriate credit should be allowed to appellant husband in the allocation to him of his distributive share in the balance of the joint account. In this connection, we observe also that if the account has at this juncture been further reduced, the court on remand should consider the allowance of such additional credits as may be appropriate. See Bauman v. Bauman, 239 Md. 379, 211 A. 2d 759 (1965).

Finally, we consider that appellant’s heavy reliance on the case of Kornmann v. Safe Deposit and Trust Co., 180 Md. 270, 23 A. 2d 692 (1941), is unavailing. In Kornmann, the sum of $31,818.14 was on deposit in a savings account to the credit of a husband, in trust, for himself and his wife as “joint owners”; the account being subject to withdrawal by either and the balance at death to go to the survivor. The wife became seriously ill. The husband withdrew the deposit and placed the entire sum in his own name in the same bank, but he also executed a will by which the residue of his estate was left in trust for his wife for her life, disposition of the remainder being made to the husband’s near relatives. When the bank filed a bill of interpleader, the administratrix of the wife’s estate filed a cross bill to enjoin the bank from paying over to the husband’s personal representative (he also having died in the interim) the sum of money involved. The Court of Appeals affirmed an order sustaining a demurrer to an amended cross bill which alleged that the husband had “fraudulently” deprived the wife of all benefit and enjoyment to the account and had destroyed her right of survivorship. The Court in Kornmann applied none of the tests spelled out in the later case of Jones v. Hamilton, supra. Indeed, we note that Kornmann is not cited in Jones, and while there is language in Kornmann to the effect that it is immaterial whose money it was when it was deposited or how much either contributed to the account, this statement was made in the context of a claim based upon fraud and should not be interpreted as at variance with the principles enunciated in Jones, which we hold to be the controlling authority. See also Haller v. White, 228 Md. 505, 180 A. 2d 689 (1962).

II

Did the chancellor err in his award of alimony to the wife in the amount of $5.00 per week under the circumstances of this case?

The chancellor stated as to an award of alimony for the wife:

“[T]he evidence at the present time indicates that Mr. Sody’s sole income is from the balance due from the sale of Magnet Enterprises. His unemployment compensation payments having been terminated. I think a nominal amount should be ordered, and alimony ... [is] always subject to the order of Court. I am going to order payment of $5.00 per week alimony, which sounds ridiculous, but Mrs. Sody will have to realize that he’s not working at the present time....”

Maryland Code (1957, 1974 Repl. Vol.), Art. 16, § 5 directs that the court not award alimony “unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs.” In awarding alimony, the court should consider the husband’s wealth and earning capacity, the station in life of the parties, the assets and income of the wife, their ages, physical conditions, and ability to work, the length of time the parties lived together, the circumstances leading to the divorce and the fault which destroyed the marital relationship. Colburn v. Colburn, 15 Md. App. 503, 514-15, 292 A. 2d 121 (1972); Quinn v. Quinn, 11 Md. App. 638, 643, 276 A. 2d 425 (1971). As noted in Colburn, the controlling factors are the husband’s overall financial ability to support, and the wife’s need for support. 15 Md. App. at 515.

The Court of Appeals in Marshall v. Marshall, 162 Md. 116, 122, 159 A. 260 (1932) declared that, “where the decree grants an absolute divorce, with no reservation of power with respect to the allowance of alimony thereafter . . . the man is relieved of the obligation of a husband to support his wife.” Where either the wife’s financial need is not demonstrated, but may reasonably be anticipated, or where the husband’s ability to pay an award is not present, the power of the chancellor to determine the wife’s legal eligibility for alimony at the time of granting the divorce decree, while reserving the monetary award until a later time, is well established in Maryland. The purpose of such a reservation is, of course, to permit an award of alimony at a later date. Rhoad v. Rhoad, 273 Md. 459, 465, 330 A. 2d 192 (1975); Buehler v. Buehler, 229 Md. 317, 320-21, 182 A. 2d 877 (1962); McSherry v. McSherry, 113 Md. 395, 77 A. 653 (1910).

Upon our examination of the record, it is plain that the court (a) considered that the wife was entitled to alimony but that (b) the husband’s straitened financial circumstances rendered him presently unable to pay. The proper course in such circumstances is not to make an award of alimony in a nominal sum but to reserve alimony. We find that the chancellor’s failure to do so in this case was erroneous.

Ill

Did the trial court err in the allowance of counsel fees and investigative costs to be charged against the husband?

In his order, the chancellor awarded to the wife’s counsel $2,500 as “additional” fees and ordered that appellant pay one-half. In addition, appellant was required to reimburse appellee in the amount of $350 or one-half of the charges for a private investigator incurred by the wife in the preparation of her case.

The criteria for determining the amount of counsel fees to be awarded in cases where “the wife’s income is insufficient to care for her needs,” Md. Code, Art. 16, § 5, is set forth in Waters v. Waters, 191 Md. 436, 441, 62 A. 2d 250 (1948). In determining the amount, the ordinary factors of labor, skill, time, and benefit, as well as the financial resources of the parties, must be taken into account, so as to insure adequate representation of the wife’s case. Woodall v. Woodall, supra, 16 Md. App. at 29; Richardson v. Richardson, 17 Md. App. 665, 678, 304 A. 2d 1 (1973); Quinn v. Quinn, supra, 11 Md. App. at 652. An award of reasonable attorney fees is within the sound discretion of the lower court, and is not to be disturbed unless its discretion was exercised arbitrarily or its judgment was clearly wrong. Eberly v. Eberly, 12 Md. App. 117, 128-29, 278 A. 2d 107 (1971); Danziger v. Danziger, 208 Md. 469, 475, 118 A. 2d 653 (1955).

Here the record shows that the chancellor took all of the relevant factors, including the husband’s financial resources, into account. Appellee’s counsel represented that he had expended 125 hours and that his customary charge was $50 an hour. An award of $2500, of which the husband was to pay one-half, does not amount to an abuse of discretion.

The propriety of an award of investigator fees as “suit money” was affirmed by the Court of Appeals in Rubin v. Rubin, 233 Md. 118, 125-26, 195 A. 2d 696 (1963). Where such expenses are reasonably necessary to the institution or prosecution of a divorce suit, an award of private investigator fees chargeable against the husband to the same extent as counsel fees under Md. Code, Art. 16, § 5 is proper. Woodall v. Woodall, supra, 16 Md. App. 30. We find no abuse of discretion in the chancellor’s order requiring the husband to pay $350 of the $700 charge incurred by the wife to prove the husband’s fault.

IV

Did the chancellor properly order the appellant to reimburse appellee for the costs incurred by her in renting an automobile?

The chancellor ordered that the parties divide the ownership of the two jointly titled automobiles so that the wife would become sole owner of the 1973 Mercury Cougar, and the husband would receive exclusive title to the 1974 model. In addition, the husband was required to reimburse the wife for her expenditure in the amount of $836.48 for the period she rented an automobile, the chancellor having found that a vehicle was necessary in her work, and that the husband’s action in taking the car was unjustified. When asked by the court, “Mr. Sody, why did you take the car?”, he replied:

“This has been a hard thing for me, Judge, living in our house, being sued for divorce and so on and so forth. I was told by my attorney under no circumstances to remove anything from the house and to support my family in the manner in which they would be accustomed. I lived up to all of those things he told me to do, however, my ex-wife physically broke into the house on five different occasions, removed many valuable pieces of furniture and furnishings. She took, abscounded [sic] or took, I should say, or withdrew our life savings from the bank. She took all of our stocks, and I had the only tangible thing left in my name was the car that she was driving. And I saw no other recourse but to take the car as protection. I might also say that the car has not been used, and from the time it was taken it has been parked, although it gets regular maintenance, it is started daily and is being washed once a week.”

The appellant challenges the power of the 6ourt, in a divorce proceeding, to award the appellee reimbursement for the amount of the car rental. He argues that this Court’s decision in Rand v. Rand, 13 Md. App. 574, 284 A. 2d 271 (1974), is dispositive of the issue. There, the chancellor granted the husband a divorce a vinculo on grounds of five years’ continuous uninterrupted separation. In addition to awarding the wife $75 per week alimony, he also required the husband to reimburse the wife in the amount of $650 for money she had expended in payment of an orthodontic bill incurred by their minor child prior to the divorce action.

In reversing the chancellor’s award as to the orthodontic bill, Chief Judge Gilbert wrote for this Court: “An equity court has no jurisdiction to compel a father to pay unusual medical expenses in retrospect ... or after a decree of divorce has been entered.” 13 Md. App. at 582, citing Fainberg v. Rosen, 12 Md. App. 359, 365, 278 A. 2d 630 (1971); Hull v. Hull, 201 Md. 225, 93 A. 2d 536 (1953); Gregg v. Gregg, 199 Md. 662, 87 A. 2d 581 (1952); Kriedo v. Kriedo, 159 Md. 229, 150 A. 720 (1930). The wife’s remedy was to seek reimbursement in an action at law. See also Kapneck v. Kapneck, 31 Md. App. 410, 415, 356 A. 2d 572 (1976); Murray v. Murray, 134 Md. 653, 657, 107 A. 550 (1919).

In the instant case, the parties were divorced by Judge Haile’s decree on August 1, 1975. The husband took the car from the wife’s premises on August 12, 1975 and it was not returned to her until the court (Brannan, J.) ordered him to do so on October 24, 1975. Upon the dissolution of the marriage, the parties held the 1973 Mercury Cougar as tenants in common. As such, each party was entitled to possession, but the husband’s action was not an assertion of his right, but rather a tortious interference or trespass upon the possessory rights of the wife, actionable at law but not cognizable in a divorce proceeding. Rand v. Rand, supra. See also Brown v. Brown, 248 Md. 139, 235 A. 2d 706 (1967). The chancellor erred in this proceeding in holding that the former husband was responsible for the car rental.

We note that counsel for appellee has filed separately a petition for an award of counsel fees on appeal in such amount as the court may deem appropriate. In light of the financial circumstances of the respective parties, as noted above, appellee’s petition is denied. This is, however, without prejudice to the right of appellee, upon remand, to petition the trial court for such an allowance in the event that changed circumstances, since the filing of this appeal, should justify it.

Judgment reversed in part and affirmed in part; cause remanded for further proceedings not inconsistent with this opinion; costs to he equally divided.

      . The parties jointly owned two Mercury Cougar automobiles, 1973 and 1974 models. The wife drove the 1973 car.

      . We are informed that, from the evidence adduced at the proceedings before Judge Haile, the husband was living in the house only on weekends, and was working during the week in Chicago.

      . On appeal the wife makes no claim to the proceeds of the sale of Magnet Enterprises based upon her joint stock ownership.

      . As previously noted, the bill of complaint was filed on June 26, 1974.

      . Subtracting the above enumerated withdrawals from the amount originally deposited, leaves an amount in excess of the $4,093.04 figure. This difference is unexplained by the record.

      . The opinion discloses that Mr. Snyder died September 5, 1939 and Mrs. Snyder March 6, 1940.


author: Menchine, J.,

text:
    DONALD F. RODGERS v. WASHINGTON SUBURBAN SANITARY COMMISSION et al.
    [No. 1242,
    September Term, 1975.]

      Decided September 16, 1976.

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

      Joel I. Hoffman, with whom was Mark J. Wishner on the brief, for appellant.

      Paul T. Sisson and J. Eugene Cleary for appellee Washington Suburban Sanitary Commission. Robert E.

      Bullard, with whom were Bullard & Deutchman, P.A. on the brief, for other appellee.
   Menchine, J.,

delivered the opinion of the Court.

The Washington Suburban Sanitary Commission, (WSSC) a bi-county public agency having its genesis under Ch. 122 of the Acts of 1918, is charged generally with the management and control of the water supply, sewerage and drainage systems of Montgomery and Prince George’s Counties.

On September 19, 1973, WSSC, following orders of the Secretary of Health and Mental Hygiene, passed a resolution prescribing conditions and limitations upon new applicants for sanitary sewerage service into its systems in certain drainage basins in Montgomery and Prince George’s Counties. Such conditions and limitations were made expressly applicable to the Rock Creek Basin in Montgomery County.

Donald F. Rodgers (Petitioner), a property owner within the Rock Creek Basin, whose property was being served by WSSC sewer facilities, filed an amended petition for the writ of mandamus against WSSC and others. He alleged, inter alia, that WSSC had issued a sewer “hook up” permit in violation of its own resolution. The petition sought (a) to compel WSSC to withdraw its allegedly unlawful permit; (b) to enjoin it from completing the sewer “hook up” until the terms and conditions of the resolution had been met; and (c) to compel the WSSC to require the applicant for such permit to show entitlement to its issuance within the limitations prescribed by the resolution.

A preamble to the WSSC resolution (in part pertinent here) reads as follows:

“WHEREAS, in view of the sewage flow figures, calculations and projections, including the instances of overflow in the transmission lines serving the Cabin John and Anacostia basins, and the imminent threat of creation of situations of over-capacity in the other basins mentioned herein if unrestricted additional sewage flow is permitted to be added to the current flows therein, the Commission finds and determines that for the immediate preservation and protection of the public health, safety and of the integrity of the Commission’s system, and consonant with the statutory premise that there be cooperation between this Commission and the governing officials of Montgomery County in such matters, the within Resolution is adopted, to be effective immediately. The provisions of this Resolution are required to be adopted, and to be effective immediately upon such adoption.”

The body of the resolution (in part pertinent here) reads as follows:

“2. In the Rock Creek, Little Falls and Seneca Basins, and in minor basins and stream valleys elsewhere located which are tributary to the systems within said major basins (but not within the Category A basin, above), hookups, as defined in Paragraph A.3, above shall not be made, but shall be deferred pending further order of the Commission, for any structure for which a County building permit had not been issued on or before September 13, 1973. An applicant for a hookup within the said basins must exhibit a signed copy of such building permit, clearly showing the date of issuance thereof on or before September 13,1973, or the application for hookup will be deferred under the provisions of this Resolution.
3. Exceptions to the aforegoing restrictions on hookups may be granted by the Commission (i) upon written request of the Montgomery County Department of Environmental Protection which is based upon, and contains findings of, necessity for a hookup to alleviate a public health hazard, or (ii) to provide sewer service for a public service building approved by the Montgomery County Council, upon procedures, however, specified in the August 16, 1973 Anacostia Basin Order and Cabin John Basin Order of the Secretary of Health and Mental Hygiene, or (iii) for an individually owned single family dwelling unit where the applicant for the hookup certifies (and demonstrates by written instrument) that he was on or before August 16, 1973 the owner or contract purchaser of the lot upon which the single family dwelling unit will be constructed and that he will be the occupant of the dwelling unit to be constructed thereon. These exceptions carry forward and permit implementation of the provisions for such exceptions contained in the August 16, 1973 All Other Basins Order of the Secretary of Health and Mental Hygiene, as well as a recognition by both this Commission and the Montgomery County Council of the public purposes and necessities for such exceptions.”

All respondents demurred to the amended petition. The trial judge sustained all demurrers without leave to amend. He did so upon the limited holding that “the plaintiff is not an ‘aggrieved party’ under Maryland law and as such is not entitled to maintain this action.” We disagree with that holding and shall reverse and remand for further proceedings. We stress that our decision relates exclusively to the “standing” issue.

Judge Delaplaine, in the course of a scholarly opinion for the Court of Appeals of Maryland, in Pressman v. Elgin, 187 Md. 446, 50 A. 2d 560 (1947), with brevity but with great clarity traced the history of the action of mandamus and declared the rule governing its availability to a private citizen at 450-51 [563]:

“Mandamus is a remedy which comes down to us from the past when the Judges of the Court of the King’s Bench issued the writ or not as they saw fit. According to the theory of the common law, the King was the fountain of justice, and where the laws did not afford a remedy and enable the individual to obtain his right by the regular forms of judicial proceedings, the prerogative powers of the sovereign were sought to supplement . the ordinary judicial powers of the Court. Thus mandamus, like habeas corpus, became known as a prerogative writ because it was issued only by exercise of the extraordinary power of the Crown on proper cause shown. Today, however, the theory that mandamus is a prerogative writ no longer has force in America. In Union Pacific R. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428, 432, the United States Supreme Court observed that a private citizen may apply for mandamus in his own name without the intervention of any public official to enforce a public duty not owing to the government as such.”

In Liquor Stores Assn. v. Commrs., 171 Md. 426, 429, 189 A. 209, 210 (1937), it was said:

“The courts of ''the State will entertain jurisdiction of suits by citizens and taxpayers for the writ of mandamus, or that of injunction, to correct unlawful action by municipal officers, when the action may injuriously affect rights and property of the parties complaining. And according to past applications of the rule, the interest or injury which will support such a suit is broadly comprehensive. Baltimore v. Gill, 31 Md. 375, 395; St. Mary’s Industrial School v. Brown, 45 Md. 310, 326; Pumphrey v. Baltimore, 47 Md. 145, 153, 28 Am. Rep. 446; Konig v. Baltimore, 128 Md. 465, 477, 97 A. 837; Levering v. Park Commissioners, 134 Md. 48, 59, 106 A. 176; Thomas v. Field, 143 Md. 128, 141, 122 A. 25; Sun Cab Co. v. Cloud, 162 Md. 419, 427, 159 A. 922; Jones v. Gordy, 169 Md. 173, 178, 180 A. 272. It may seem to have been slight in some instances.”

The rule of those cases quite recently was restated in Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 514, 331 A. 2d 55, 72 (1975), wherein it was said:

“The office of mandamus, as generally used, is to compel inferior tribunals, public officials or administrative agencies to perform their function, or perform some particular duty imposed upon them which in its nature is imperative and to the performance of which duty the party applying for the writ has a clear legal right.”

The WSSC resolution, supra, explicitly provided that in the Rock Creek Basin sewer no “hookup” was permissible for “any structure for which a County building permit had not been issued on or before September 13, 1973.” The pertinent exception to that prohibition was limited to a “hookup” for “an individually owned single family dwelling unit where the applicant for the hookup certifies (and demonstrates by written instrument) that he was on or before August 16, 1973 the owner or contract purchaser of the lot upon which the single family dwelling unit will be constructed and that he will be the occupant of the dwelling unit to be constructed thereon.” The petition for mandamus alleged that the factual prerequisites to the grant of a permit under that exception were not shown.

The preamble of the resolution, supra, makes it crystal clear that its purpose was to prevent “... the imminent threat of creation of situations of over-capacity in the [Rock Creek basin] if unrestricted additional sewer flow is permitted to be added to the current flow therein.” It makes clear as well that the purpose of the resolution was to provide for the “immediate preservation and protection of the public health, safety and of the integrity of the Commission’s system.”

In sum, the WSSC resolution (a) imposed an imperative duty upon the Commission to limit subsequent sewer “hookups” into the sewer lines serving the Rock Creek basin and (b) was intended to benefit the public generally and particularly those members of the public — of whom petitioner allegedly was a member — currently connected to such sewer facility.

We find the language of Heghinian v. Ford, 209 Md. 113, 117, 120 A. 2d 339, 341 (1956), to have particular application here:

“Mandamus was originally a prerogative writ and a private citizen could not obtain it to compel performance of a public duty unless he had an individual and separate interest in the matter, not common to other citizens, and it was necessary for a government law officer to move for the mandamus. Later the prevailing view came to be, generally and in Maryland, and long has been, that ‘* * * private citizens may move for mandamus, to enforce a public duty, not due to the government as such, without the intervention of the government law officer.’ Pumphrey v. Baltimore, 47 Md. 145, 154. The rationale of this rule seems to be that if the duty is one in which the public, or a segment of the public, has an interest, an individual who is a member of the group which has such an interest may act on behalf of that group by virtue of the interest he shares with the others. It is still true, nevertheless, that to be entitled to the issuance of the writ of mandamus, the relator must have a real interest in the subject matter of the suit whether it be his alone or shared by a great number of people, and the respondent must owe him, or the group of which he is a member, an imperative duty. Pressman v. Elgin, 187 Md. 446, 452; Buchholtz v. Hill, 178 Md. 280, 288. The cases in which this Court has held that the writ should issue in favor of an individual who shared an interest with the general public, show that the duty which is to be compelled is a duty owed to the public.”

The petition for mandamus shows upon its face that WSSC was charged with an imperative duty and that the petitioner was a member of the public who shared, with others, a real interest in the subject matter of the suit.

We stress that our decision is quite narrow. We hold only that petitioner had standing to initiate an action of mandamus. We do not in any respect address the merits of the cause.

Judgment reversed.

Appellees to pay the costs.

      . See Washington Suburban Sanitary District Code 1970, as amended.

      . The Commission, the individual commissioners, the general manager of the Commission, the secretary and the treasurer of the Commission, the owners of the lot as to which the permit had been issued and a building contractor allegedly engaged in the construction of a home thereon were joined in the petition.