author: Lowe, J.,

text:
    JOYCE LILLIAN POPE v. STATE OF MARYLAND
    [No. 341,
    September Term, 1977.]

      Decided January 13, 1978.

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

      Thomas A. Lohm, Assigned Public Defender, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Laurence D. Beck, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Having sinned by silence when the circumstances cried out for her to protest a mother’s prolonged and inhumane treatment of a three-month-old child, the appellant, Joyce Lillian Pope, was convicted in the Circuit Court for Montgomery County of child abuse and misprision of felony. Although we find that the record contained insufficient evidence upon which the child abuse conviction can be sustained, there is ample to sustain the misprision conviction. That, in itself, may be a cause for concern to the contemporarily indifferent or the uninvolved sophisticates, who deny being their brothers’ keepers.

Most lawyers know, if only vaguely from law school recollection that misprision of felony is the concealment and/or nondisclosure of the known felony of another. Perkins, Criminal Law 512, et seq. (2nd ed.). The crime has never been recognized in the appellate courts of Maryland however, and we are confronted here with the question of whether it is an indictable offense in this State. Since there is no statute here so proclaiming, we must look to the Common Law of England or her statutes as they existed on July 4, 1776, for that is the law to which the inhabitants of Maryland are entitled. Md. Const., Art. 5, Deck of Rights. Recognizing that it is generally a foolish thing to make a long prologue and be short in the story itself, because of appellant's denial of the existence of such an offense, we must overlook that Apocryphal admonition.

The Prologue

"... it is plain that there is and always has been an offense of misprision of felony and that it is not obsolete.” H. L. Sykes v. Director of Public Prosecutions, 3 All E.R. 33, 40.

Whether particular parts of the common law are applicable to our local circumstances is a question for our courts to decide. Gilbert v. Findlay College, 195 Md. 508, 513; State v. Buchanan, 5 H & J 317. Such discretionary power to reject acknowledged common law concepts may exist in appellate courts, e.g., Holland v. State, 302 So. 2d 806 (Fla. App. 1974), however, as an appellate court with less than final jurisdiction we seldom analyze the philosophical appropriateness of clear concepts of common law to present-day social conditions, Hans v. Franklin Square Hosp., 29 Md. App. 329, 335, cert. denied, 276 Md. 744, and never address such questions raised in the abstract.

The primary question asked in this case is whether misprision of felony is “an indictable offense under the constitution and laws of this State.” The argument raises the questions of whether that crime was one recognized under the Common Law of England when Maryland adopted that body of law, and if so, has the crime since been abandoned for obsolescence by its apparent non-use here. See State v. Magliano, 7 Md. App. 286,293. There is no argument made that this crime which is in the nature of a criminal cover-up is “inconsistent with the spirit of the Constitution and the nature of our political institutions”, see Gilbert v. Findlay College, supra, at 513, or that it is:

“ . . . inconsistent with or repugnant to the spirit and nrinciples of republican institutions, whose strength lies in the virtue and integrity of the citizen to correct the morals and protect the reputation, rights, and property of individuals, . . . .” Price v. Hitaffer, 164 Md. 505, 510.

Appellant contends only that if viable in 1776 and thus adopted by Md. Const., Art. V, it has since atrophied to obsolescence by disuse.

Our prologuizing then, is restricted to determining whether misprision of felony was an offense known to the common law and subject to adoption by Art. 5 of the Declaration of Rights, since the facts here are inimical to a philosophical rejection of the crime for want of substantial justice in the case. If misprision is to be declared in the abstract philosophically repugnant to contemporary life, we leave that policy consideration for the Legislature, which may abrogate it by statute, or to the Court of Appeals which may change the common law when that law has become unsound in the circumstances of modem \if. Hearst Corp. v. St. Dep’t of A.& T., 269 Md. 625, 643-644. It will suffice in this case simply to determine if misprision was a crime under the common law of England when we adopted it as our own in 1776 and leave whether it “should be” a crime for a more appropriate policy determination.

With that in mind, we necessarily look to England, the fountainhead of the common law. Fortune smiles upon our search. In 1061, the House of Lords was faced in H. L. Sykes v. Director of Public Prosecutions, supra, with the question of whether misprision of felony was an offense known to the law. Their answer:

“My Lords, it has been an offence for the last seven hundred years or more, not always under the name ‘misprision of felony’, but still an offence. Ever since the days of hue and cry, it has been the duty of a man who knows that a felony has been committed to report it to the proper authority so that steps can be taken to apprehend the felon and bring him to justice.” Id. at 36-37.

In an opinion classic for its scholarship and commendable for its interest, Lord Denning relied upon jurisprudential forbears that strike awe into the heart of a legal scholar.

Sir William Staundford, summarizing a precedent from two cases, one decided in 1315 and the other in 1457, in Plees Del Corone, said:

“ ‘If anyone happens to be present, when another is killed, or when a felony is committed, and did not come there in the company of the felons, nor was part of their confederacy, but nevertheless did not intervene, or disturb the felons, or raise hue and cry, he is not on that account to be held a principal or accessory, for it is not a felony in him but only an offence for which he can be fined like trespass’ ” Sykes, supra, 3 All E.R. at 37.

Lord Coke, in 1628, spoke upon the subject in his 3rd Institute p. Í39:

“ ‘Now are we to speak of concealement or not discovery of felony. As in case of high treason, whether the treason be by the common law, or statute, the concealment of it is misprision of treason. So in case of felony, whether the felony be by the common law, or by statute, the concealement of it is misprision of felony... And as the concealment of high treason is higher by many degrees then the concealment of felony, so the punishment for the concealment of the greater is heavier then of the lesser, and yet the concealment of felonies in sherifs, or bailifs of liberties is more severely punished then in others, viz. by imprisonment by one year, and ransome at the will of the King. [This is clearly a reference to the Statute of Westminster, 1275, c. 9, and shows that COKE too had in mind the ‘hue and cry’ cases.] From which punishment if any will save himself he must follow the advice of BRACTON, to discover it to the King, or to some judge or magistrate, that for administration of justice supplieth his place, with all speed that he can ... And this is intended of a concealment, or not discovery [that is, non-disclosure] of his meer knowledge: for if in case of high treason, he that knoweth it, before it be done, and assenteth to it, is particeps criminis, and guilty of treason: and in case of felony, he that receiveth the thief, and assenteth to it, is accessory.’ ” Sykes, supra, 311 E.R. at 38-39.

Chief Justice, Sir Matthew Hale, in 1670 added to this in his Pleas of the Crown, Vol. 1, p. 374:

“ ‘By what hath been said touching misprision of treason we may easily collect what is the crime of misprision of felony, namely, that it is the concealing of a felony which a man knows, but never consented to, for if he consented, he is either principal or accessary in the felony, and consequently guilty of misprision of felony and more.’ ” Sykes, supra, 311 E.R. at 39.

Recalling, perhaps, that the Titans of Greek mythology unsuccessfully stacked only three mountains in their attempt to reach Heaven, Lord Denning piled on a fourth to assure attainment of his goal.

Sir William Blackstone in the fourth book of his Commentaries combined the statements of Lord Coke and Sir Matthew Hale in his authoritative recognition of the crime:

“ ‘Misprision of felony is also the concealment of a felony which a man knows, but never assented to; for, if he assented, this makes him either principal, or accessory. And the punishment of this, in a public officer, by the statute Westm. 1. 3 Edw. I. c. 9. is imprisonment for a year and a day; in a common person, imprisonment for a less discretionary time; and, in both, fine and ransom at the king’s pleasure...’” Sykes, supra, 3 All E.R. at 39.

Nearly every author of any note from that day to this has followed these great names, and has said there is an offense of misprision of felony and described it in much the same terms Sykes, supra, at 39. As explained interrogatorily by Lord Denning, “What need we of any further authority? If STÁUNDFORD, COKE, HALE AND BLACKSTONE all say there is such an offence as misprision of felony, are we to say the contrary?”

Indeed, the United States has statutorily enacted such a crime in language not dissimilar to that describing the common law crime:

“Misprision of felony. — Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both.” 18 USC § 4,

and several states through the statutory inclusion of the common law of England have recognized the common law offense, State v. Flynn, 100 R. I. 520, 217 A. 2d 432; State v. Biddle, 2 W.W.Harr. 401, 124 A. 804; State v. Wilson, 80 Vt. 249, 67 A. 533; Commonwealth v. Lopes, 318 Mass. 453, 61 N.E.2d 849. But see Holland, supra; Lefkovitz, supra, and State v. Young, 7 Ohio App. 2d 194, 220 N.E.2d 146 (Ohio has no common law crimes), where the doctrine is rejected outright. Furthermore, language in our own Court of Appeals indicating that an agreement to prevent the apprehension of a criminal would be illegal in Maryland, provides some philosophical direction concordant with the philosophy of misprision of felony. See Schirm v. Wieman, 103 Md. 541. See also Jackson v. State, 10 Md. App. 337, 339, cert. denied, 260 Md. 721, where this Court acknowledges the crime of misprision of felony.

“In the light of this history, it is plain that there is and always has been an offence of misprision of felony and that it is not obsolete.” Sykes, supra, 3 All E.R. at 40.

We hold, therefore, that misprision of felony was a crime at common law given life in Maryland by Art. 5 of the Declaration of Rights. The contention that it has become obsolete or abandoned by disuse, is without merit. See State v. Buchanan, supra, 5 H & J at 359. A dearth of appellate cases is not proof that the crime has not been charged at trial level. Indeed, assuming disuse, we know of no limitations period placed upon the use of the common law. In Jones v. Harris, 35 Md. App. 556, this Court, and in Harris v. Jones, 281 Md. 560 (1977), the Court of Appeals, recognized for the first time in Maryland the common law tort of intentional infliction of emotional distress, a tort previously unacknowledged or arguably abandoned by non-use. Abandonment and laches do not apply to common law concepts.

“My Lords, it was said that this offence is out of date. I do not think so. The arm of the law would be too short if it was powerless to reach those who are ‘contact’ men for thieves or assist them to gather in the fruits of their crime; or those who indulge in gang warfare and refuse to help in its suppression. There is no other offence of which such persons are guilty save that of misprision of felony. I am not dismayed by the suggestion that the offence of misprision is impossibly wide; for I think it is subject to just limitations. Non-disclosure may be due to a claim of right made in good faith. For instance, if a lawyer is told by his client that he has committed a felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it confidential. Likewise with doctor and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of a college and a student. But close family or personal ties will not suffice where the offence is of so serious a character that it ought to be reported. In 1315, it was held that it was the duty of a brother to raise hue and cry against his brother and he was fined for not doing so; see 24 Selden Society, pp. 144, 145: and in 1938 a mistress was found guilty of misprision for shielding her lover (Mrs. Casserley’s case (21)). The judges have not been called on further to define the just, limitations to misprision, but I do not doubt their ability to do so, if called on." Sykes, supra, 3 All E.R. at 42.

Because appellant questions the sufficiency of the evidence to convict of misprision of felony (as well as of child abuse), we must touch upon the elements of the crime prerequisite to conviction. Sykes, supra, acknowledges only two necessary elements; knowledge and concealment. We agree with that general appraisal; however, there are nuances of each element wherein some would depart from the English view.

Knowledge.

The accused must know that a felony has been committed by someone else. This knowledge is provable as in other criminal cases, i.e., by asking whether a reasonable man with the same facts and information before him would have known that a crime had been committed. If the answer is in the affirmative and the serious crime a felony, the proof of knowledge is sufficient.

Concealment.

The accused must have concealed or kept secret his knowledge. Evidence must show that he failed or refused to perform his duty when there was a reasonable opportunity available to him to disclose to proper authorities all material facts known to him relative to the offense — except when the Fifth Amendment eliminates the duty to disclose such information. Cf. United States v. Daddano, 432 F. 2d 1119, cert. denied, 402 U. S. 905; United States v. Pigott, 453 F. 2d 419.

When and whether there was a “reasonable opportunity available” to the accused to disclose (which determines the time element of when the duty becomes manifest) are factual issues for determination by the factfinder. The lack of reasonable opportunity to disclose is or may be a valid defense because, while it is implicit that the duty arises at the first opportunity, that opportunity must be apparent and without risk of harm to the accused. No penalty is to be imposed for a failure to accomplish the impossible.

In Sykes there was at issue the question whether the concealment ingredient required some active conduct, and it was held that in England misprision requires nothing active. The failure or refusal to disclose the felony is enough. But in America we are faced with strong dicta from a civil case opinion written by a former Chief Justice of the United States in Marbury v. Brooks, 20 U. S. 556, 575, to the effect that mere silence is insufficient to sustain an indictment.

“It may be the the [sic] duty of a citizen to accuse every offender, and proclaim every offense which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man.”

Under the federal misprision statute, 18 USC § 4, in six jurisdictions the conjunctive terms have been held to mean that both the act of concealment of a felony and the omission to make it known must be proved to support a federal statutory conviction. Shannonhouse, Misprision of a Federal Felony, 4 Balto. Law Rev. 59, 69-70. In both Vermont (Wilson, supra) and Massachusetts (Lopes, supra), the element of “evil motive” or mens rea has been added in lieu of active conduct. See also 1 Bishop, Criminal Law § 721 (a) (9th ed. 1923).

Since Maryland has never met these tangential questions, it would seem that we must adhere to the common law of England as it was in 1776, as set forth in Art. 5 of the Declaration of Rights, rather than judicially legislate that for which we have no authority. We are told by the House of Lords that:

“ ... misprision requires nothing active. The failure or refusal to disclose the felony is enough.” Sykes, supra, 3 All E. R. at 41.

While we are not bound by current opinions of the House of Lords, its view of what comprised the elements of its common law prior to 1776 is hard to gainsay. If in the application of that common law, active concealment is found to be more contemporarily compatible to a determination of criminal culpability than is indifference, such policy is for our Legislature or Court of Appeals to say. The issue was not raised in the case before us in any event, perhaps because the facts implicitly indicated an active concealment. Mrs. Pope’s failure to respond fully when questioned by the police on the cause of the child’s death was almost as active a concealment of the truth as was the denial of Jesus by the Apostle Simon-Peter.

The Story

Following a Friday evening service at the Christian Tabernacle Church, the appellant, Joyce Lillian Pope, agreed to permit Melissa Norris and her 3-month-old child, Demiko, to stay at appellant’s home. During that evening and the following morning appellant assisted Melissa with the child by assuming some of the maternal functions such as preparing its bed (in a dresser drawer), changing the child and feeding him.

Melissa’s conduct that evening and the following day sporadically indicated some sort of mental distress. She would at times seem caught up in a religious frenzy with a wild look about her, trying to preach and declaring that she was God. She would as quickly resume her normal self without ever seeming to notice her personality transitions. This changing back and forth continued throughout the following day, Saturday, even during a “shower” party that evening attended by the mother, the child and the appellant. Because of this strange conduct, appellant admitted some concern for the child’s safety and watched it “like it was [her] own”, prevailing upon Melissa to let the child sleep in a dresser drawer, rather than in bed with the mother, as Melissa had suggested, because she feared the mother might roll over on the child during the night.

The following morning Melissa’s episodes of “changing to God” became more and more pronounced. She stomped and gestured as she strode back and forth, putting crosses on doors and demanding the departure of the evil which she claimed to see. She kicked and banged at the door of appellant’s son, and fearful that by breaking in Melissa would frighten him, appellant unfastened the door to permit entry. Loudly exhorting Satan to leave the premises, Melissa “annotated” appellant’s son with oil, placing some of the oil in this child’s mouth. She subsequently repeated the process with appellant’s daughter. When dressed, appellant’s children left the house expeditiously, lingering only long enough to embrace their mother.

Melissa’s changing process continued. Finally, while still appearing to be herself, she prepared a water tub to bathe the baby. Then, from her suddenly changed voice and appearance, appellant knew Melissa had changed again to “God”. Calling out that Satan had hidden in the body of her son, Melissa began to verbally exorcise that spirit and physically abuse the child by punching and poking him repeatedly about the stomach, chest and privates. After she undressed the child, that which ensued was hardly describable. In her religious frenzy of apparent exorcism, Melissa poked the child’s vitals and beat the child about the head. She reached her fingers down its throat, wiping mucus and blood on diapers at hand, and even lifted the child by inserting her hands in its mouth, and shook him like a rag.

Appellant, Joyce Lillian Pope, watched but did nothing else during this entire episode. She neither participated in the abuse nor tried to prevent it. Whether from fear or fervor, her abstinent conduct manifested total indifference. Her testimony sought to indicate that her passivity was motivated by fear but other evidence belied that inference. Her sister, Angela, came to the door as Melissa’s frenzy diminished, and was let in by appellant who tried to tell Angela what had happened — but couldn’t. Appellant, on advice from Angela, locked the door so that Angela’s children would stay in the yard with appellant’s. Angela wrapped the dead or dying child in a towel, held the comatose body over her head and prayed. Although the record is not clear as to when, sometime during or soon after its ordeal, the child mercifully expired.

The three adults (appellant, her sister and Melissa) left with the child, destined ultimately for the church located in the District of Columbia. Angela drove to the home of Melissa’s grandfather, with whom Melissa had lived. According to the grandfather both appellant and Melissa were in a religious frenzy.

“Q Who was saying that they were Jesus Christ at this point?

A Melissa and Joyce Pope.

Q All right. And what happened then?

A They just carried on and carried on. So Joyce

— I mean Joyce kept telling me there was a dead baby in the car, and for me to go and open his eyes and look at him, his heart was like a stone.

Q Did you do that?

A No, sir. By the way they was carrying on, I didn’t believe that they knew what they was talking about.

Q What happened then?

A Well, after I didn’t go, Joyce went to the car and got the baby —

Q What car was this? Was this the car they had come in?

A That is the car they came in.

Q What happened then?

A She brought the baby back to me and tried to give it to me, and told me to look at it, it was dead; its heart was like a stone.

I still didn’t take the baby.”

After leaving that scene, the trio arrived at a nursing home where they picked up another member of the congregation of the Christian Tabernacle telling her that “God has a job for you to do.” They continued on to the church passing in their journey two or three hospitals and several rescue squads and police stations.

At the church the child was given to, or taken by, the Reverend Leon Hart who gave him to Mother Dorothy King for her prayers. Mother King discovered that the child’s body was cool and sent for ambulance assistance from the firehouse across the street. Police and rescue personnel arrived and determined that the child was dead.

The first police officer on the scene saw appellant but did not address her. A detective from the District of Columbia Homicide division arrived and interviewed Melissa and appellant together.

“Q All right. What was it that occurred between you and Melissa in Joyce’s presence?

A What I did was I asked the mother the pertinent facts about the baby. My questions usually in an infant death are date of birth, what hospital, the term of pregnancy, how long — if the baby was released from the hospital at the same time as the mother, prenatal care, postnatal care, when was the last time the baby was fed, was it burped, and questions relevant to our medical examiner’s inquiry.

Q All right. Did th-re [sic] come a'time when you asked her what if anything had happened to the baby?

A Yes, sir.

Q And what was her response to that?

A The mother stated that sometime during the afternoon she was bathing the baby, the baby suffered shortness of breath, but she didn’t — she didn’t take too much concern, because it seemed to go away. And they dressed the baby, and then while bringing it in the car, it lapsed into an unconscious condition.

Q And then was there anything further with reference to that, to what they did with the baby?

A They took it to a nursing home, I believe, and stopped by and talked to a woman there, who in turn brought them to the church, accompanied them to the church.

Q All right. Did you make any inquiry further of Melissa Norris with reference to any potential injuries to the baby?

A Yes. I asked, one of my questions was, did the baby ever fall? She replied no. I said, ‘Did you ever strike the baby, hit the baby, cause any injuries to the baby?’

Q What was her response to that?

A No.

Q What was Joyce Pope’s response, if any, to this series of questions to Melissa Norris?

A None.

Q Did there come a time when you spoke with Joyce Pope?

A Yes, I did.

Q What were the conditions under which you spoke to Joyce Pope?

A The same conditions. I just sat at the desk when she was across the room, in everybody’s company. Q Who was there at the time?

A Melissa, myself, and I believe the reverend. Like I said, he kept walking in and out of the room. Q At that time, what was the status of this case? A At that time my investigation showed that it probably was just a natural death.

Q Had anyone at all been placed in custody at that point?

A No, sir.

Q Was anyone in any way under arrest or restrained in any fashion?

A No, sir.

Q Did you advise anyone, specifically Joyce Pope, did you advise Joyce Pope of her rights in any fashion?

A No, sir.

Q At that juncture, how were you viewing Joyce Pope? What was your -- why was it you were going to ask her some questions?

A She was the roommate of Melissa.

Q All right. Did there come a time when you did ask her some questions?

A Yes.

Q And what information did she give you?

MR. LOHM: Objection.

THE COURT: I will overrule it.

THE WITNESS: It was with regards to feeding, and —

MR. LOHM: I didn’t understand.

THE WITNESS: In regard to feeding the baby, and I asked — she related she had fed the baby sometime around four o’clock, nothing unusual, and then again sometime around 8 —

THE COURT: This is 4:00 a.m.?

THE WITNESS: 4:00 a.m. in the morning, and sometime again around 8:00 or 9:00 in the morning.

BY MR. BECK:

Q Did she give you any further information at all?

A None, sir.

Q Did you have any further conversation with Melissa Norris?

A Yes. I explained to her that an autopsy would be performed, and where the body was going, and the arrangements she was to make with the funeral home in regards to picking the baby up and burying it.

Q Throughout the course of this period of time, other than the statements with reference to feeding, did Joyce Pope give you any information with reference to your investigation?

A No, sir.”

The following day the Montgomery County police began their investigation and appellant was brought to the station. At that interview, for the first time, appellant disclosed what had happened.

Child Abuse

The trial judge found appellant guilty of child abuse and premised his finding on alternative theories. The first he stated succinctly, perhaps too succinctly for us to fully comprehend his reasoning:

“In support of the verdict sane and guilty of child abuse, the Court is satisfied beyond a reasonable doubt that under the doctrine of State v. Fabritz, cited at 276 Maryland [416,] 424, the defendant is a principal and is guilty of child abuse.”

The doctrine of Fabritz was simply a broadened area of proscribed conduct interpreting the “cause” of an injury to include a failure to seek assistance for an injury. The case did not extend the class of persons to whom the statutory proscription expressly applies nor even discuss that aspect of proof since the accused there was the victim’s mother. By its terms the statute (Md. Code, Art. 27, § 35A) applies to:

“Any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child

In Bowers v. State, 38 Md. App. 21 (1977), we held that language to be sufficiently explicit

“... to inform a person of ordinary intelligence whether or not he comes within the class of persons against whom the statute is directed....”

In Fabritz, supra, the appellant was the victim’s natural parent who was not present when the actual cause of initial injury occurred. In the case at bar the appellant was a hostess-witness to the injury which was inflicted by the natural parent. Although acquiescing in appellant’s maternal ministrations to her child, the mother at no time, directly or indirectly, relinquished her “responsibility for supervision” of her child to appellant.

The State contends that because appellant admitted considerable concern for the child and actually took steps to protect the child from its mother (e.gproviding a dresser drawer bed so the mother wouldn’t roll on it in her sleep), she thereby assumed the role of a surrogate parent. That the child’s mother was continually present, and caring for her child during her self-possessed times is explained by the State as conduct permitted by appellant but manifesting “no indication whatsoever that appellant intended to relinquish her responsibility.” That puts the cart before the horse. It is the mother whose responsibility was not relinquished or absolved. Appellant had no right to usurp that role. We cannot in good conscience hold that a person who has taken in a parent and child is given the responsibility for the child’s supervision and protection even while the child is in the very arms of its mother. Penal statutes should be strictly construed with reference to the purpose to be accomplished and not interpreted as conveying an intent different from their plain meaning. Fabritz, supra, 276 Md. at 421-422.

Having been wrong in interpreting the legislative intent of the child abuse statute in Fabritz v. State, 24 Md. App. 708, we approach that hallowed ground with trepidation, but it is inconceivable to us that the legislative scheme intended to shuffle the supervisory responsibility in such circumstances. In construing statutes, results that are “unreasonable, illogical or inconsistent with common sense” should be avoided, with the real legislative intention prevailing. State v. Fabritz, supra, 276 Md. at 422. There is, of course, the temptation to stretch, just a little further, an interpretively strained statute to punish such callous indifference, but to do so would mandate generally an affirmative responsibility to “become involved” if not as our brother’s keepers, at least as our children’s. Holland v. State, supra, 302 So. 2d at 810. Such policy considerations are beyond the aegis of this Court. In this case there is no evidence that appellant had adjudged the mother incompetent. in order to obtain custody of her child, nor had appellant any right to do so. Her concern for the child does not convert to legal responsibility nor parental prerogatives. Because appellant does not fall within the class of persons to whom the child abuse statute applies, the question of whether the parental failure to seek assistance doctrine of Fabritz would apply is meaningless.

Principal in the Second Degree

To his initial holding, the trial judge added an alternative:

“If this interpretation of Fabritz is in error, then the defendant is guilty as a principal in the second degree. Among the facts to support this finding are the following:

1. The events of the beating took place in the defendant’s own home.
2. She responded to the commands of the perpetrator during the course of events. For example, she looked when told to look; she came when called.
3. She voluntarily opened the door to the room where her own son was sleeping so that Melissa Norris could reach him.
4. She failed to interfere or question Melissa Norris’ activity, even during the periods when Melissa was rational. For instance — immediately after attacking and terrifying defendant’s son, Maurice Pope. She opened the outside door to permit her sister to enter, and then locked it after her entrance. She drove the children away from peering into the house from the outside. She wrapped the baby in a sheet after the beating. She disposed of the baby’s bloody clothing by wrapping it in a towel and placing it in a trash container. Her possession of and displaying the baby to Mr. Norris at the Inwood Avenue residence following the beating. And finally, her failure to make any report to any person of authority or any medical personnel at any time, or to stop during the ride to Inwood Avenue, thence to the Bel-Pre Nursing Home and back to the church in the District of Columbia, to seek assistance of any of the numerous medical, fire and rescue, or police facilities passed during this journey.”

Principals in the second degree are those persons present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it. Agresti v. State, 2 Md. App. 278, 280.

Responding seriatim to the trial judge’s findings we are unable to discern conduct of appellant describably encouraging or assisting the mother in the commission of the crime.

1. There is no evidence that the situs was provided by appellant for the purpose of the abuse, as implied by the trial judge. All evidence indicates the home was incidental to the commission of the crime, not provided for it. 2. That appellant came when called and observed the commission of the crime does not constitute encouragement or assistance in its commission. 3. Nor was her opening of the door to her son’s bedroom a part of the commission of the crime. It preceded the crime and did not relate to the victim. These acts and omissions, like her failure to interfere, may be considerations, but they are reeds far too slender upon which to convict an accused as a principal.

A compelling element in the determination of guilt or innocence of the person charged is the consideration of all the alternate circumstances surrounding the presence of an accused at the scene by the trier of facts. Malcolm v. State, 232 Md. 222; Tasco v. State, 223 Md. 503, cert. denied, 365 U. S. 885. It would be intellectually dishonest, for example, to permit an inference from mere presence that the accused was available as a lookout. It is equally wrong to permit culpable inferences from ordinary conduct associated with mere presence. The fact that a person witnesses a crime and makes no objection to its commission, and does not then notify the police, does not, of itself, make that person a participant in the crime. Watson v. State, 208 Md. 210; Coleman v. State, 4 Md. App. 386, cert. denied, 252 Md. 730.

4. The other doings of appellant referred to by the judge such as opening the door for her sister, locking it to keep out the children, chastizing them as she left the premises for “peering”, disposing of baby clothes, and showing the dead child to the grandfather, were all acts performed after the commission of the crime. Evidence of such conduct may have been used to establish that she was an accessory after the fact, but it is not- consonant with a finding of aiding or encouraging the commission of the crime — and appellant was not tried as an accessory. See Agresti, supra, at 281. Finally, in regard to child abuse, her failure to seek or obtain medical assistance for the child is premised upon the Fabritz doctrine and we have held appellant was not within the class to which the statute was intended to apply.

We find that there was insufficient evidence to sustain the verdict of guilty of child abuse and the court was clearly in error so to do. Md. Rule 1086. The appellant did not have custodial responsibility for the child sufficient to warrant her conviction as a principal in the first degree, and the sparse if inferably affirmative conduct coupled with her presence did not provide a sufficient degree of participation to indicate encouragement or assistance. Mere presence creates a thin line whence vicarious encouragement begins and noninvolvement ends, but the State’s burden to prove, beyond a reasonable doubt, assistance and encouragement must show to some degree an affirmative act.

Sir William Staundf ord’s summary of precedent in his Plees Del Corone, c. 44, p. 40E, seems most appropriate as an epilogue to our holding on evidentiary sufficiency for child abuse and a prologue to misprision of felony. It bears repetition elliptically:

“ ‘If anyone happens to be present, when another is killed, or when a felony is committed,... but nevertheless did not intervene, or disturb the felons, or raise hue and cry, he is not on that account to be held a principal____’”

Misprision of Felony

The felony that appellant was charged with concealing and failing to disclose was the murder of Demiko Lee Norris committed by his mother, Melissa Vera Norris. The evidence was sufficient to sustain that verdict.

The knowledge that a felony was committed was proven through appellant’s own testimony that she witnessed, but did not participate in, the tortured killing of Demiko by his mother. From her own description of the event a reasonable person in her place would have known that a felony had been committed. Certainly the offense was of “so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police.” Sykes, supra, 3 All E.R. at 41-42.

The concealment or failure to disclose was apparent when appellant bypassed numerous “reasonable opportunities available” to her to do so.

1. The State proved that the route followed from appellant’s home to the church passed hospitals, rescue squads and police stations. No effort was made by appellant to report the crime at any of these places.

2. No effort was made by appellant to report the crime to any authority during the stop at Melissa’s grandfather’s home despite her acknowledgment that the child was dead.

3. No effort was made by appellant to report the crime during the stop at the Bel Pre Nursing Home when the fourth passenger was picked up.

4. No effort was made to report the crime upon arrival at the church or after Mother King sought help, although officials of various sorts were about.

5. An overt concealment was manifested by appellant’s silence during the interrogation of Melissa when the District detective interviewed her in appellant’s presence in a room at the church. Her limited responses upon hearing Melissa’s false recitation of the child’s death and its cause constituted an active concealment. The false report in her presence (if not ■ the questions to her) gave rise to a duty to speak. Cf. Ewell v. State,, 228 Md. 615.

6. Finally, as pointed out by the trial judge, an additional act of concealment occurred when, having knowledge of Melissa’s misstatements of the events, appellant again extended to Melissa the comfort of her home, without having reported the crime to any authority.

That appellant ultimately admitted to the authorities the following day what may have actually occurred does not relieve her from the abrogation of her responsibility to have reported the crime when there were “reasonable opportunities available”.

Scope of Cross-Examination and Rebuttal

Appellant questions finally the discretion of the trial judge in permitting cross-examination of appellant beyond the scope of her precise testimony on direct and then rebutting that response. We find no abuse of discretion in permitting examination to amplify the events relevant to the misprision charge which occurred after the major crime, Robinson v. State, 18 Md. App. 678, 698-700, cert. denied, 269 Md. 765, and appellant does not question that the rebuttal testimony rebutted that which we find to have been properly so elicited. See State v. Hepple, 279 Md. 265.

Judgment of guilty of child abuse, reversed.

Judgment of guilty of misprision of a felony, affirmed.

Costs to be divided equally between appellant and Montgomery County.

      . Parenthetically, it could also give pause to the politically peripheral shadow people whose influence emanates from their knowledge of the whereabouts of buried bodies.

      . See, e.g., People v. Lefkovitz, 294 Mich. 263; but see Goldberg, Misprision of Felony; an Old Concept in New Context 52 A.B.A.J. 148.

      . E.g., Harris, Principles of Criminal Law adopted by M.F. Force, p. 87 (1880); Chitty, I Criminal Law % (3rd Am. ed., 1836); Hochheimer, Criminal Low § 401 (2nd ed., 1904); Perkins, supra; Clark and Marshall, Law of Crimes, p. 547 (7th ed., 1967).

      . It should not be inferred from our failure to expostulate that we foreclose such mitigatory defenses as excuse or justification for failure to report at the first reasonable opportunity.

      . The State contends that appellant went outside to chasten the children who were peeking in the window and chase them away. The record seems to indicate that this occurred when the three adults left with the baby. Whatever the interpretation of the statement, the simple comment by one of the children is insufficient to sustain a conviction of child abuse as a principal in the second degree.
      “Q Let me ask you one other question now, Earl. After Popey called you away from the window, did you see Joyce Pope again?
      MR. LOHM: Objection. He has answered the question.
      THE COURT: I think he has answered that. He said he saw her leave.
      Go ahead and answer it again.
      BY MR. BECK:
      Q Did you see Joyce Pope again?
      A The only time, when she canie outside.
      Q When she came outside, what did she do?
      A Well, see, we was making noise and was looking in the window. She came out, she gave us a beating.
      Q With what?
      A I forgot.”

      . It is difficult to rationalize under Fabritz the court’s finding of guilt of child abuse and not guilty of manslaughter when the Fabritz concept was founded upon a manslaughter case, Palmer v. State, 223 Md. 341:
      “ ... where in affirming an involuntary manslaughter conviction of a mother who knowingly permitted her infant child to be subjected to prolonged beatings by her paramour, we concluded that although the direct and immediate cause of the child’s death was attributable to blows struck by the mother’s paramour, her failure to remove the child from the paramour’s presence constituted gross and criminal negligence and ‘was a contributing cause of ... [the child’s] unfortunate death.’ 223 Md. at 353. Fabritz, supra, 276 Md. at 424-425.

      . Although the issue was not raised below or here, we note that there is no requirement that there be a conviction of the underlying felon as a prerequisite to convict for misprision. It is sufficient if in the misprision case the trier of fact determines, beyond a reasonable doubt, that a felony was committed, of which the accused had knowledge, and that an opportunity to disclose the crime’s commission to the authorities was presented to the accused. Cf Ford v. State, 274 Md. 546, 550-551.
      In this case, Melissa Vera Norris escaped the responsibility for her conduct, having been determined insane at the time of the commission of the crime. We were informed at argument that she has since been released as sane and has given birth to another child.

      . This conduct was also inferentially a “form [of] evil as respects the administration of justice” which is the mens rea substituted for active concealment judicially conceived in Vermont and Massachusetts. See State v. Wilson, 80 Vt. 249 and Commonwealth v. Lopes, 318 Mass. 453. We find no common law authority for an evil motive prerequisite, however.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    BETHLEHEM STEEL CORPORATION v. SUPERVISOR OF ASSESSMENTS OF BALTIMORE COUNTY
    [No. 436,
    September Term, 1977.]

      Decided January 13, 1978.

      The cause was argued before Morton, Moylan and Wilner, JJ.

      R. Taylor McLean, with whom were Royston, Mueller & McLean on the brief, for appellant.

      Peter Max Zimmerman, Assistant County Solicitor, with whom were J. Carroll Holzer, County Solicitor, and Harry S. Shapiro, Chief Assistant County Solicitor, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Imagine the consternation of Baltimore County when it discovered that nearly $150 million of its property tax base was up for grabs in the Maryland Tax Court and it was not a party to the proceeding. Imagine then the grief of Bethlehem Steel Corporation, the owner of that tax base, when, five months after trial of the matter had been concluded, Baltimore County expressed a desire to intervene in the case “in order to present evidence and file briefs.”

That’s what this case is about. On October 29,1976, the Tax Court said that the county could not intervene; and to make matters worse, in the county’s eyes, on the same day, the Tax Court affirmed a $25.6 million reduction in Bethlehem’s assessment. Aggrieved in the truest sense (i.e., in the purse), the county appealed to the Circuit Court for Baltimore County with an allegation that the Tax Court’s action in denying the county’s petition to intervene was arbitrary, capricious and illegal. It asked that both orders of the Tax Court be reversed, and that the case be remanded to the Tax Court “for further proceedings consistent with the right of Baltimore County to intervene, present evidents [sic] and make argument.”

The Circuit Court correctly framed the question before it: did the Tax Court, by failing to allow Baltimore County to intervene, abuse its discretion? After summarizing the arguments on both sides of the issue, the court found that “in the interest of justice” it must grant the relief requested by the county. The “most compelling reason” for this, it said, was that the Tax Court failed to state any reasons for its decision on the petition to intervene, which rendered it impossible to determine whether or not it abused its discretion. From this action of the circuit court, Bethlehem has appealed.

We reverse the order of the Circuit Court, as we do not believe the Tax Court abused its discretion.

We begin, as the Court of Appeals began in Comptroller v. Diebold, Inc., 279 Md. 401 (1977), “by noting that judicial review of decisions of the Maryland Tax Court is severely limited.” Md. Annot. Code, art. 81, § 229 (o) provides that, on appeal, the circuit court “shall determine the matter upon the record made in the Maryland Tax Court [and] shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.”

Thus, the Court in Diebold stated at 407:

“We have held that the standard by which a result reached by the Tax Court is reviewed is whether a reasoning mind reasonably could have reached the factual conclusion which that agency reached, Fairchild Hiller Corp. v. Supervisor of Assessments, 267 Md. 519, 521, 298 A. 2d 148, 149 (1973). The application of this test need not and must not be either judicial fact finding or a substitution of judicial judgment for agency judgment.”

It was incumbent upon the circuit court, therefore, to look to the record in the Tax Court. The mere failure of the Tax Court to state the reasons for its decision as to intervention does not, of itself, require reversal if the record discloses substantial evidence supporting the decision; and thus, what the circuit court considered the “most compelling reason” for its action would not, of itself, justify that action.

The record shows that the cases reached the Tax Court on November 7, 1975, on an appeal by the Supervisor of Assessments for Baltimore County from the action of the Baltimore County Property Tax Assessment Appeal Board. The issues centered around the questions of (1) whether, and to what extent, the property assessed was personal rather than real, and (2) whether fair and adequate depreciation had been allowed.

Trial was held on March 81,1976, at which four witnesses testified and seventeen exhibits were admitted. The principal evidence of valuation came from the testimony and appraisal report of Sherwood S. Vermilia. Mr. Vermilia had made a complete appraisal of the Bethelehem property for Baltimore County in 1953, updated it in 1960 and 1973, and was under contract with the county to make semi-annual appraisals of all additions to and changes in the Bethlehem plant. The appraisal report — twelve volumes covering over 1,000 buildings and more than 100 miles of rail — was introduced into evidence.

The court stated at the conclusion of the hearing that “it was an excellently presented case.” At the request of counsel, the Supervisor was permitted two weeks to file a post-trial memorandum, and Bethlehem was allowed to file a reply memorandum within a week thereafter. The record shows that such memoranda were filed on April 19, and April 28, 1976, respectively. Nothing further transpired, except for court consideration of the mass of evidence before it, until September 8, 1976, when the county filed its petition to intervene.

The county alleged that it had not received notice of the proceedings and did not learn of them until it received an application for a refund of 1973-74 taxes from Bethlehem in “July, 1976.” The full story, it said, was not revealed until the county’s inquiry, prompted by this application, was answered by the Attorney General’s Office on August 12, 1976. The delay between August 12 and September 8, was not explained in the petition. Bethlehem objected to the petition, and asserted that the county had “actual notice” of the proceedings by virtue of the facts that its checks for taxes from 1973-1976 were marked “PAID UNDER PROTEST,” a letter from the County Office of Finance acknowledged such taxes to be paid under protest, and the principal witness in the case —- Mr. Vermilia — was under contract with the county.

The Tax Court held a hearing on the county’s petition on September 29, 1976. The proceedings were not transcribed, but the record shows that the court had before it the county’s petition, Bethlehem’s answer, the county’s reply to Bethlehem’s answer, accompanied by a memorandum of law, and various affidavits, letters, checks, and other documents relating to when the county knew or should have known about the proceedings. Its written order, dated October 29, 1976, recites these pleadings and states that, “the Hearing having been held and the matter considered ... Baltimore County’s Petition to Intervene be and the same is hereby DENIED.”

The issues before the Tax Court in terms of the county’s intervention were clearly presented by the pleadings and undoubtedly amplified at the hearing. There is nothing hidden or mysterious about them. The Court had to balance the county’s undisputed interest in the outcome of the case against the inconvenience of reopening it five months after the evidentiary hearing had been concluded, four months after final memoranda had been filed, and two months after the county admittedly had notice of the proceeding. This is clearly a matter that involves the exercise of discretion; intervention is neither compelled nor forbidden as a matter of law. There was evidence before the tax court from which, if believed, the court could have reasonably concluded that the county was put on notice of the proceedings as early as April, 1976.

Whether, given the same facts or considerations, we, or the circuit court, would have struck the balance in favor of intervention is not relevant. We cannot substitute our judgment for that of the Tax Court, or conclude that its decision was either erroneous as a matter of law or unsupported by substantial evidence in the record.

The county seeks assistance from Montgomery Co. v. Supervisor, supra, 275 Md. 58, in which, it says, the Tax Court allowed Montgomery County to intervene in “an equivalent situation.” That case is of no help to the county, because the situation there was not “equivalent.” The principal difference was that the county’s petition to intervene in that proceeding was filed before the hearing on the merits, and not five months after it. The issue before the Court of Appeals, in any event, was not whether the Tax Court was correct in allowing the county to intervene, but whether, having allowed formal intervention, the county was entitled to participate in the proceeding.

This case would not likely have arisen before 1973. Until then, the county supervisor of assessments was a county employee, paid by the county. His knowledge was the county’s knowledge, and his actions were on its behalf. In 1973, the General Assembly, as part of a general revision of the assessment laws, made the supervisor and his assistants State employees. His actions are no longer those of the county. He serves a different master now, and there is no requirement that he keep his former master apprised of appeals taken from his decisions. This case is the unfortunate result of a lack of communication, both ways, between officials of different governmental entities whose offices are most likely within walking distance of each other. It is unfortunate, but there is no legal justification to disturb the determination of the Tax Court.

Order of the Circuit Court for Baltimore County vacated; case remanded to the circuit court for entry of an order dismissing the appeal of Baltimore County from the orders of the Maryland Tax Court; costs to be paid by Baltimore County.

       Note: Certiorari denied, Court of Appeals of Maryland, March 8, 1978.

      . At issue in the Tax Court was the assessment for the 1973-74 tax year. The most immediate effect of the decision, therefore, was to require the county to refund to Bethlehem the taxes it had paid on the $25.6 million, together with interest.

      . The Supervisor of Assessments for Baltimore County, who was a party in the Tax Court, did not appeal the Tax Court’s order and did not join in the county’s appeal.

      . See Montgomery Co. v. Supervisor, 275 Md. 58 (1975): “And as we have indicated, issuance of an order permitting intervention is within the Tax Court’s sound discretion.”

      . The relevant statutory provision considered in Diebold was the predecessor of § 229 (o); but tne Court mentioned the current statute and noted that it is “substantially similiar” to the one then before it. The differences are essentially stylistic, and not sufficient to create a different standard of judicial review than that stated in Diebold.

      . There were two parcels involved. Case No. 1063-A concerned 2160 acres, identified as Sparrows Point Plant and Land; No. 1063-B concerned 212 acres identified as Sparrows Point Yard Land and Improvements. The Supervisor had assessed the two parcels, together, at $174,686,360. The appeal board reduced the combined assessment to $149,647,850 — a reduction of $25,038,510. On November 20, 1975, Bethlehem also appealed to the Tax Court with respect to the assessment qn the Sparrows Point Plant and Land, requesting an additional reduction of $8.9 million. As to that property, therefore, there were cross-appeals. The Bethlehem appeal was noted as Case No. 1072.

      . The record shows that the application was dated June 29, 1976, and states that it “is based on those matters currently being litigated in the Maryland Tax Court in the cases of James M. Barry, Supervisor of Assessment of Baltimore County v. Bethlehem Steel Corporation, Case No. 1063A, and Bethlehem Steel Corporation v. James M. Barry, Supervisor of Assessments of Baltimore County, Case No. 1072.” This application concerned the Sparrows Point Plant and Land property. A similar application, also dated June 29, 1976, was filed with respect to the other parcel.

      . We refer to a bill for $500 from Mr. Vermilia’s company to Baltimore County dated April 6,1976, showing, as services rendered: “September, 1975 — Vz day preparation of answers to County Appeal Tax Board March, 1976 — 1 day preparation court appearance Bethlehem Steel Co. 1 day court appearance Bethlehem Steel Co.” This bill was received by the Supervisor of Assessments and, according to an affidavit from the manager of that office, was sent to the County Office of Central Services on April 22, 1976. The tax court was not obliged to accept the county’s explanations for not acting more promptly.

      . See 22 Op. Atty. Gen. 490 (1937).

      . Laws of Md., 1973, ch. 784.

      . We note that four bills (SB 917, SB 1119, HB 1733, and HB 1736) were introduced into the 1977 session of the General Assembly to require the State Department of Assessments and Taxation to notify the county government of property tax assessment appeals, and that none of them passed.


author: Melvin, J.,

text:
    ARTHUR NATHANIEL BROOKS v. STATE OF MARYLAND
    [No. 439,
    September Term, 1977.]

      Decided January 13, 1978.

    The cause was submitted on briefs to Lowe, Melvin and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Mark Colvin, Assistant Public Defender, for appellant.

      Submitted by Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General, Richard D. Warren, State’s Attorney for Wicomico County, and Henry L. Vinyard, Assistant State’s Attorney for Wicomico County, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On May 3, 1977, Arthur Nathaniel Brooks (appellant) was convicted by the Circuit Court for Wicomico County (Simpkins, J.) of assault with intent to murder John Frank Williams [Md. Ann. Code, Art. 27, § 12] and carrying a weapon openly with intent to injure [Md. Ann. Code, Art. 27, § 36]. He was given consecutive sentences of twelve years for the assault with intent to murder and three years for the carrying of a weapon openly with intent to injure. On appeal, appellant presents three questions for our consideration:

“1. Was appellant improperly convicted of carrying a weapon openly with the intent to injure?
2. Was the evidence insufficient to sustain Appellant’s conviction for assault with intent to murder?
3. Does the sentence imposed upon Appellant constitute cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and Article 25, Maryland Declaration of Rights?”

On August 23, 1976, John Williams and Catherine Anderson, together with Mrs. Anderson’s three grandchildren, went to a park at Westover Hills in Salisbury. Shortly after their arrival, appellant joined the group. Williams testified that he and appellant engaged in a scuffle originating over the disciplining by Mrs. Anderson of one of her grandchildren. Mrs. Anderson said that there was no scuffle and that the men fell when the bench on which they were sitting toppled over. Williams and Anderson both testified that appellant left the park area, went to his car, and returned with a shotgun with which he twice shot Williams as Williams was attempting to run away. Appellant testified that he had just purchased a half pint of whiskey and that Williams, who wanted the bottle, came after him with a knife. Appellant further testified that he shot Williams in self defense.

I

Appellant first contends that his conviction for carrying a weapon openly with intent to injure should have been merged into his conviction for assault with intent to murder. Because appellant was given consecutive sentences, we will consider the issue of merger even though it was not raised or decided below. Rose v. State, 87 Md. App. 388, 393-94, 377 A. 2d 588 (1977).

In Newton v. State, 280 Md. 260, 268, 373 A. 2d 262 (1977), the Court of Appeals set out the test for determining whether two offenses merge:

“Thus, under both federal double jeopardy principles and Maryland merger law, the test for determining the identity of offenses is the required evidence test. If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited."

See also Couplin v. State, 37 Md. App. 567, 579-82, 378 A. 2d 197 (1977) (offenses of robbery with a deadly weapon and use of a handgun in the commission of a felony or crime of violence do not merge).

Applying the required evidence test to the two offenses involved here, it is clear that each requires proof of a fact which the other does not, thus precluding a merger. Assault with intent to murder, as its name implies, requires proof of an assault. Bird v. State, 231 Md. 432, 190 A. 2d 804 (1963). A weapon need not be involved. To sustain a conviction of carrying a weapon openly with intent to injure, it is necessary that the State prove the carrying of a weapon. Md. Ann. Code, Art. 27, § 36 (a). While the State must also show that the weapon was carried openly, with the intent or purpose of injuring any person in any unlawful manner, it is not necessary that the State prove an assault. As the offenses of assault with intent to murder and carrying a weapon openly with intent to injure each requires proof of a fact which the other does not, the two offenses are not the same and do not merge.

In Watts v. State, 3 Md. App. 454, 240 A. 2d 317 (1968), we held, under the circumstances in that case, that the offenses of carrying a dangerous and deadly weapon openly with intent to injure a named person merged into the offense of assault with intent to murder that particular person. Because the same weapon, a sawed-off shotgun, was used in each offense, and because the victims were the same persons described in each offense, and because there was identity of time, place and circumstances of each offense, we held that “The elements of the two crimes are the same.” Id. at 461.

It is clear that Watts was decided under what the Court of Appeals has termed the “actual evidence” test, i.e., whether the evidence actually produced at trial on both offenses is substantially the same. This test was specifically rejected by the Court of Appeals in Newton in favor of the “required evidence” test quoted above. In light of Newton, we now overrule our holding in Watts that the offenses of carrying a dangerous and deadly weapon openly with intent to injure a named person and assault with intent to murder that person merge.

II

Appellant next contends that the evidence was insufficient to sustain his conviction of assault with intent to commit murder. He specifically contends that there was no evidence that he “ever verbalized an intent to kill or grievously harm [Williams].” While it is true that an intention to commit grievous bodily harm must be shown to sustain a conviction for assault with intent to murder, James v. State, 31 Md. App. 666, 674, 358 A. 2d 595 (1976), there is no requirement that this intent be verbalized. To the contrary, “[t]he intent to kill is inferable from the use of a deadly weapon directed toward a vital part of the body.” Id; Bird v. State, 231 Md. 432, 190 A. 2d 804 (1963).

The record in the instant case supports a finding that appellant twice shot John Frank Williams with a shotgun, hitting him in the face and arms. It was clearly permissible for the trial judge to infer an intent to murder from this deliberate use of a deadly weapon directed at a vital part of Mr. Williams’ body. See Mahoney v. State, 13 Md. App. 105, 110, 281 A. 2d 421 (1971); Woodward and Demby v. State, 13 Md. 114, 123, 282 A. 2d 9 (1971). The evidence was sufficient to sustain appellant’s conviction.

Ill

Appellant finally contends that the sentences were so disproportionate to the offenses as to constitute cruel and unusual punishment forbidden by the Maryland Declaration of Rights and the United States Constitution. We find this contention to be without merit.

In Raley v. State, 32 Md. App. 515, 526-27, 363 A. 2d 261 (1976), we stated:

“[T]he imposition of sentence in a criminal case is a matter within the province of the trial judge, Gleaton v. State, 235 Md. 271, 277 (1964); Reid v. State, 200 Md. 89, 92 (1952), cert. denied, 344 U. S. 848 (1952). And if the sentence is within the limits prescribed by law, it ordinarily may not be reviewed on appeal. Gleaton v. State, supra; Biles v. State, 230 Md. 537, 538 (1964).”

The sentences imposed in the instant case were well within the limits prescribed by law, and there is no indication whatsoever that in determining the sentences the judge was motivated by passion, ill will, prejudice, or any other motive than that of a sense of public duty. Id. Appellant’s assertion to the contrary notwithstanding, it is clear that the trial judge did consider appellant's physical condition and military service prior to imposing sentence. Under all the circumstances, we cannot say that the sentences imposed constituted cruel and unusual punishment.

Judgments affirmed.

Costs to be paid by appellant.


text:
    ARTHUR M. LOVE, JR. v. GEORGE F. BACHMAN, JR. et al.
    [No. 453,
    September Term, 1977.]

      Decided January 13, 1978.

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

      Douglas G. Worrall, with whom were Smith, Somerville & Case on the brief, for appellant.

      John M. Court, Assistant County Solicitor, with whom was Michael R. Roblyer, County Solicitor, on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Arthur M. Love, Jr. (Love), the architect of a now completed school, appeals from the Anne Arundel County Circuit Court wherein the trial judge sustained, without leave to amend, a demurrer of appellees who comprised the County Council of Anne Arundel County (Council). Love had petitioned for a mandamus praying that the Council be required to

“Levy and collect such tax upon the assessable property of Anne Arundel County which, together with other local revenue available, including income tax revenues and bond monies and together with estimated revenues and funds from all sources, will produce $99,000.00 plus accrued interest and costs due the Petitioner, [and]
Pay over said sum to the Board in order that the Petitioner may be paid.”

This sum, we were told, was that which remained unpaid under an architect’s contract made with the Board of Education of Anne Arundel County (Board) pursuant to its authority. See Md. Code, Art. 77, § 47 (a) and (c). Apparently the contract initially established a percentage fee based upon construction costs. When the General Assembly subsequently adopted the State school construction program, Md. Code, Art. 77, § 130A, the architectural fees assumed by the State were limited to a percentage less than that established in the contract. Supposedly relying on the State assumption of the entire construction program for the school in question, the Council rescinded a bond ordinance which it had passed and by which it had conditionally approved the capital construction project. Prior to that rescission, but after the Board’s construction budget had been approved (subject to the bond ordinance), the Board had entered into the contract with Love. Love has now performed and has been compensated by the State only up to its maximum allowance which is $81,000 less than the agreed upon fee.

A concise “STATEMENT OF WELL-PLEADED FACTS”, set forth by appellees in the record provides a full and fair resumé of appellant’s amended petition to which appellees’ demurrer was sustained without leave to amend.

“In 1970 the Anne Arundel County Council (‘Council’) approved the annual budget for the Board of Education of Anne Arundel County (‘Board’) which contained an appropriation of $7,212,000 for the construction of the Old Mill Senior High School. In connection with the approval of the Board’s annual budget, the Council enacted Bill No. 45-70, which appropriated $7,212,000 for the construction of the school, subject to funding from future bond authorizing ordinances. The requisite bond authorization was provided by Bill No. 60-70, tl authorizing the issuance of the County’s general obligation bonds to provide, among other things, $7,212,000 for the construction of the Old Mill Senior High School.
In connection with the construction of the Old Mill Senior High School, the Board entered into a contract with the Petitioner for architectural services. As the result of the Board’s failure to pay the Petitioner fully pursuant to the contract, the Petitioner filed suit in the Circuit Court for Anne Arundel County. See Love v. Asaki, et al., Law No. C-7464. On March 1, 1974 a judgment in that case was entered against the Board and the balance due under that judgment is $81,000. Petitioner also claims an additional amount of $18,000 for work performed in connection with the construction of the school. The Board of Education has refused to pay the Petitioner the $99,000 because the Council has refused to pay to the Board the $7,212,000 appropriated in fiscal 1971 to pay for the construction of the school.”

Because a demurrer shall state “in detail” the question of law or insufficiency of substance upon which the demurrer is founded, Md. Rule 345 b, we find it propitious to set forth appellees’ express grounds in full:

“1. The duty of the Anne Arundel County Council to pay the Board of Education $99,000 of $7,212,000 appropriated in fiscal 1971 to finance the construction of the Old Mill Senior High School is not sufficiently clear to support the issuance of a writ of mandamus.
2. The Petitioner lacks standing to enforce by a writ of mandamus a duty owed by the Respondents to the Board of Education of Anne Arundel County.”

Because the trial judge assigned no reasons for sustaining the demurrer, we are left to guess which of the two grounds he relied upon — the absence of a clear legal right in appellant (standing) or the absence of an imperative duty on the part of appellees. Since both are prerequisite grounds for issuance of a writ of mandamus, Buchholtz v. Hill, 178 Md. 280, 288-289, we must discuss each one.

Appellant’s Standing

Appellees contend that appellant lacks standing because the duty asserted (which we will treat subsequently) is not one owed to the public directly, but is owed rather to another branch or department of government. The Maryland authority upon which they rely (and which alone binds us) is summarized in their brief as follows:

“The rule in Maryland is that a private person ‘may move for a mandamus, to enforce a public duty, not due to the government as such, without the intervention of a government law officer.’ (Emphasis supplied.) Levering v. Williams [Park Com missioners], 134 Md. 48, 59 (1919). On the other hand, if the duty owed is to the government itself, or a department or representative of the government, the writ of mandamus may be brought only by the government itself. This was the clear holding of the Court of Appeals in Heghinian v. Ford, 209 Md. 113 (1956).”

The phrase appellees have quoted from Levering v. Park Commissioners, supra, was itself expressedly taken from Pumphrey v. Mayor & C. C. of Balto., 47 Md. 145, 154. Had appellees gone to that source, they would have found in the preceding paragraph at page 153, the following, far more appropriate sentence in which “[a]ll the authorities concur:

“... [W]here the petitioner has a personal interest in the matter, different in kind from that of the general public, he is entitled to the writ.”

It is obvious even from appellees’ summary of admittedly well-stated facts, that appellant “has a personal interest in the matter, different in kind from that of the general public____” That is also the assumed prefatory predicate upon which appellees’ other Maryland authority, Heghinian v. Ford, 209 Md. 113, 117, relies.

“Since the appellant has no interest in the matter different from that of any member of the general public, we must examine the right of a citizen to compel action by a public official. 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 [Mayor & C. C. of Balto.], 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.” (emphasis partially added).

See also Liquor Stores Assn. v. Commrs., 171 Md. 426, 428 429.

We agree with appellant that a citizen with a peculiar interest has standing to enforce a judgment against a county, although it was obtained by him against another legal political entity. Labette County Com’rs v. Moulton, 112 U. S. 217.

“The question is, whether the respondents, to whom the writ is addressed, have the legal duty to perform, which is required of them, and whether the relator has a legal right to its performance from them, by virtue of the judgment he has already obtained. If so, then they are, as here, the legal representatives of the defendant in that judgment, as being the parties on whom the law has cast the duty or providing for its satisfaction. They are not strangers to it, as being new parties, on whom an original obligation is sought to be charged, but are bound by it, as it stands, without the right to question it, and under a legal duty to take those steps which the law has prescribed as the only mode of providing means for its payment. [Id. at 221].
It can make no difference in principle that in a particular case the law, instead of casting the performance of the entire duty upon a single person, has divided it among several, each to perform but one act in the series, and each acting independently and not as responsible to any of the others, but all required to cooperate in the attainment of the single result, and by a continuous and uninterrupted succession, so as to preserve the integrity and unity of the performance as an entire duty.
The relator is entitled to an effective writ, and he can have it only on the terms of joining in its commands all those whose co-operation is by law required, even though it be by separate and successive steps, in the performance of those official duties, which is necessary to secure to him his legal right. Otherwise the whole proceeding is liable to be rendered nugatory and abortive.” Id. at 224.

Finally, although the issue of parties was not raised in the demurrer, we note that having pled that the sole reason for the Board’s failure to pay the judgment was “because the Respondents (appellees) have failed and refused to pay over to the Board the funds appropriated to pay for the Center” (school), it is implicit that but for the Council’s recalcitrance, the Board would be willing to perform. Where the duty owed requires the performance of several acts, those who are willing to perform need not be joined as respondents, 55 C.J.S. Mandamus § 252.

Appellees’ Imperative Duty

The reason first assigned by appellees (but treated here inversely) was that the duty of the Council to pay the Board $99,000 of the $7,212,000 appropriated in 1971 is not sufficiently clear to support a writ of mandamus.

Having asserted his contractual rights as having been duly established pursuant to the Board’s statutory authority to act upon approval and funding of its budget by the County Council, appellant sets forth the duty of appellees in the final paragraph of his amended petition:

“The Respondents are required to levy and collect such tax upon the assessable property of Anne Arundel County which, together with other local revenue available, including income tax revenues and bond monies and together with estimated revenues and funds from all sources, will produce the amounts necessary to meet the appropriation for the Center made in the approved annual budget of the Board which the Respondents have failed and refused to do.”

While the better practice would have been for appellant to have included a more specific reference to the source of that authority, appellees acknowledge in their brief that it derives from Md. Code, Art. 77, § 117 (e), which provides in pertinent part that the Council shall:

"... levy and collect such tax upon the assessable property of the county which, together with other local revenue available, including income tax revenues and bond moneys and together with estimated revenues and funds from all sources, will produce the amounts necessary to meet the appropriations made in the approved annual budget of the county board of education.”

Presumably admitting for purposes of demurrer a procedurally approved budget, appellees invoke three statutes to provide two reasons to support the contention that appellant has not established an “imperative duty”.

First, appellees point out that the very statute upon which appellant relies in order, to show an imperative duty has additional procedural requirements which appellant has not alleged were complied with by the Board so as to give rise to appellees’ duty. The sentence following the language relied upon by appellant in § 117 (e) provides that:

“Local funds provided for appropriations shall be paid in accordance with the expenditure requirements as certified by the county board of education to the treasurer of the county board of education on a monthly basis____”

It is not clear to us why the procedural sentence of § 117 (e) relied upon by appellees should be interpreted so that the Council’s ministerial duty to pay arose only when the construction contract was fully executed, as appellees advocate. Section 117 (f) requires that in the event the Council fails to appropriate the amount requested by the Board for capital projects, the Council shall indicate in writing what portions of the proposed budget it denied and the reason therefor. While certainly this would not preclude the Council from making a denial, or from approving and subsequently rescinding approval, the underlying rationale of that provision runs counter to the suggestion that the Council can play with school capital improvement budgets at its pleasure until a contract, entered into in reliance on the Council’s initial approval of a budget, is fully performed. Subsection (f) (formerly contained in § 68) “was designed, not only to guard against an arbitrary refusal of the County Commissioners to levy the amount deemed necessary by the Board of Education for public school purposes, but also to advise the County Board of Education of the items to which it is required to limit the expenditure of the school tax.” Bd. of Ed. v. Montgomery County, 237 Md. 191, 202, quoting from B’d of Education P. G. Co. v. Co. Com., 131 Md. 658, 668. (citations omitted). It seems unlikely, therefore, that the construction of the statute urged by the Council is correct. Additionally, it is questionable whether the Council’s action in cancelling the funding through the repeal of the bond ordinances was a proper exercise of its discretion as it relates to contracts made in reliance upon it. That leads us to appellees’ argument.

Appellees point out that the bond authority Bill No. 60-70 was repealed on September 23,1971, prior to the execution of the school construction contract (which appellees inform us was in 1972). Bill No. 82-71 did cancel, rescind and repeal Bill No. 60-70 “but only to the extent that such authority has not been exercised prior to the date of this Ordinance [which was] APPROVED and ENACTED: September 23, 1971.” By the petition’s chronology of events, to which we are bound on demurrer, it is asserted that the contract between Love and the Council was entered into prior to the effective date of the repeal of Bill No. 60-70. Such contract then, was a valid exercise of the statutory authority of the Board to contract subject to budget approval and funding from bond authorization ordinances, as provided under Art. 77, § 47 (c), since those statutory conditions were met by the Council’s enactment of Bills No. 45-70 and No. 60-70, respectively. That contract fell within, the exception of the rescission Bill No. 82-71. To hold otherwise would condone an unconstitutional impairment of a contractual obligation.

In a similar situation in Farmer v. Jamieson, 31 Md. App. 37, the complainant had entered into an agreement with Harford County officials for the construction, and operation of a sewage treatment plant. Sometime later, after having given its approval to the project, the County Council amended the Master Plan eliminating the subject property from the Master Plan, and thereafter refused to expend funds for the sewage treatment plant. The complainants sought to have the Council’s action in deleting the property from the Master Plan declared invalid. In affirming the lower court’s grant of the requested relief, we said: “While the county council has the power to amend the Master Plan they cannot arbitrarily impair contract rights.” Id. at 44. Nor can the County Council here, through the powers it has derived from the State, impair the obligations of a contract. Const. of the United States, Art. I, § 10; see Von Hoffman v. Quincy, 4 Wall. 535; Murray v. Charleston, 96 U. S. 432; Steel Co. v. Equitable Society, 113 Md. 77, 80, aff’d, 226 U. S. 455. The very language of the title of Bill 82-71, quoted by appellees, or its relevant enacting clause, limiting the proposed repeal “only to the extent that such authority has not been exercised ...” clearly indicates a legislative attempt to avoid impairment of contractual obligations in violation of the Constitution.

In the case at bar, the applicant’s contract rights were inferentially established at a time when the Board was authorized to act, after the County Council carried into effect the conditional capital budget approval by passing the bond authority to fund the construction project in Bill No. 60-70. The bill authorizing the funding was not repealed until well over a year later, on September 23,1971. There is nothing in the record that would indicate how much of the contract had been executed at that time; all that is known is that it was fully performed sometime in 1972. (But see note 9, supra.) When Bill No. 82-71 repealed Bill No. 60-70, the rescission could not constitutionally, and did not by its own terms, impair the obligation of what is asserted as a valid, binding, subsequently performed, contract.

Language most appropriate, if not precisely apposite, to the issue here appears in Board of County School Comm’rs v. Gantt, 73 Md. 521. The issue was whether the County Commissioners could be compelled by a writ of mandamus to pay to the Board of Education the full amount of taxes levied for the use of public schools, without any diminution of that amount. While in that case, the court did not have to command the levying of taxes, as that had already been accomplished, the Court of Appeals held that such a requirement would have been possible under other circumstances. The Court did not hesitate to intervene for the purpose of enforcing the County Commissioners’ duty:

“The amount levied for the schools stands to the credit of the appellants on the books of the appellees. That amount is fixed and ascertained, and the plain duty of the county commissioners is to pay it over. For a breach of that duty mandamus is the appropriate remedy. An action at law could accomplish nothing more than to reduce to a judgment the claim confessedly levied____” Id. at 526.

As their final thrust, appellees contend that the subsequent statutory assumption of school construction costs eliminated only obligations of the Council under the contract. The argument appellees assert is that:

“The obligation of the County to fund school capital improvement and construction projects of the Board of Education was further modified in 1971 by the General Assembly’s enactment of Chapter 624 of the Laws of 1971. Chapter 624 added a new §130A to Article 77 which provided, inter alia, that the State
‘shall pay the costs in excess of available Federal funds of all public school construction projects and public school capital improvements in the counties ... which have been approved by the Board of Public Works and for which the contracts have been executed on or after July 1,1971.’
The purpose of Chapter 624, as set forth in the title to the act, was, among other things, to provide for the State assumption of public school construction and capital improvements. The legal effect of Chapter 624 was to eliminate the obligation of the County under §117 (e) of Article 77 to provide funds to the Board for construction and capital improvement projects for which contracts were executed after July 1,1971. This, then, would include the Old Mill project for which the construction was executed in 1972.”

We do not interpret § 130A to “eliminate the obligation of the County under § 117 (e) of Article 77 to provide funds to the Board for construction and capital improvement projects for which contracts were executed after July 1, 1971.” The State assumption perhaps alleviated the Council’s burden to the extent it assumed the responsibility, but it did not obviate the Council’s contractual responsibilities beyond that which it assumed. The State School Construction Act provided a source of funds from which the County Council’s school construction obligations may be met; however, if the legislative intent had been to “eliminate” the Council’s obligation it would have said so, and could have done so in the very same bill that enacted the program which went into effect June 1,1971. It chose to permit the county’s statutory obligations established by § 117 (e) to stand. If the State does not provide funding pursuant to § 130A (an issue we do not inferentially decide), the Council may have a right to seek relief against it as in the nature of a surety; however, the Council’s primary obligation to provide funds to parties with whom they are obligated by contract is not impaired by that supplemental source.

Because the grounds stated in the demurrer pursuant to the requirement in Md. Rule 345 (b) were not sufficient to sustain that demurrer without leave to amend, we reverse. We reach only the two grounds presented in the demurrer (although implicitly broadened by argument) and expressly decline to comment upon any other defenses not raised by the demurrer.

We cannot conclude without expressing our hope that in the future the trial judge will provide us with some reasons for his decision, rather than leaving us to guess how he reached his result. We would have benefited by knowing which and what parts, if any, of the ordinances he may have judicially noticed pursuant to Md. Code, Cts. Art., § 10-203, and what, if any, considerations they played in the result he reached. While Rule 18 does not appear to mandate an opinion as to motions, when a decision thereon concludes the litigation, it is generally desirable to explain how that conclusion was reached. Cf. Levy v. Bernstein, 237 Md. 552, 555.

Henceforth we will require that the party on demurrer, when relying upon an ordinance, expressly so state, pursuant to Rule 345 b., and reflect in the record that the court below had the ordinance before it and did, or could have, relied thereon. The record here had no such indication and the appellees, who were relying upon an ordinance to affirm the trial judge’s judgment, with questionable propriety, included ordinances in an appendix, along with other matter not in the record, without motion or order to supplement the record. Indeed, even those parts of Bill No. 82-71 inserted were not the portions which contained the language enacting what was alleged by appellees to be the law. The only relevant portion included was a reference by title indicating what was supposed to have been in the absent body of the ordinance. However, if we had exercised our prerogative to dismiss because of the insufficient record, it is the appellant who would have suffered, not the party relying on the omitted materials.

It should also be pointed out that, in addition to the absence of the reasons by the trial judge for his decision or any record of that which was considered by him, the demurrer in this case was itself insufficient to raise either the application or construction of the statutes or ordinances upon which the demurrants relied. Rule 345 b. requires that a demurrer

"... state in detail the question of law or insufficiency of substance upon which the demurrer is founded.”

See Thomas v. Hardisty, 217 Md. 523. Under the general assertion that appellant had failed to show appellees’ duty to appropriate with sufficient clarity, appellees sought by argument, and received implicitly by the trial judge’s ruling, statutory constructions and applications (see Rule 345 a.) which they had not stated in detail as reasons for the demurrer, as mandated by Rule 345 b.

We have responded to the issues argued here, however, despite our inclination to hold appellees strictly to the issues they “detailed” in their demurrer, because we felt it desirable for the guidance of the lower court and in order to avoid the expense and delay, to appellant, of another appeal to this Court. Rule 1085. If, in the future, the punishment of dismissal or remand would more appropriately fit the procedural crimes of omission, we shall so exercise our discretion.

Order sustaining the demurrer without leave to amend, reversed.

Costs to be paid by appellees.

      . The appellees are George F. Bachman, Jr., Wallace R. Childs, H. Erie Schaffer, Ronald C. McGuirk, Sarah E. Carter, Edward C. Ahern, Ann C. Stockett and Virginia P. Clagett, constituting the County Council of Anne Arundel County.

      . Appellant filed his initial Petition for Writ of Mandamus on November 7, 1974. An Amended Petition was filed on April 1, 1975. It is this second amended petition to which all references in this opinion are made unless otherwise specified.

      . Appellant also contends entitlement to $18,000 additional for work and services under the contract.

      . Bill No. 60-70 was not included in the record. Por purposes of demurrer, we will assume that it was enacted prior to the contract between the Board and Love as the parties have done. There is some question whether that is the proper sequence; however, what effect that might have on the validity of the contract is not an issue here.

      . Applicable here pursuant to Md. Rules BE 41 and 373 b.

      . Appellees, as demurrants, did not contend in the demurrer that appellant has some other adequate remedy at law. See, e.g., Hardcastle v. Maryland and Delaware Railroad Company, 32 Md. 32, 35. That issue, therefore, is not before us.

      . Md. Code, Art. 77, § 38 declares each county board of education to be “a body politic and corporate ... capable to sue and be sued ....”

      . Although not included in the record or mentioned as judicially noticed, we find that Section 13 of the Council’s Budget Bill No. 45-70 dealing with the capital projects of which the school in question is one, approved these projects:
      “... provided that these projects to be funded from future Bond Authorization Ordinances shall not be allotted until such ordinance is adopted and becomes law.”
      It is not contested that the condition for approval was propitiously met by the enactment of Bill No. 60-70 prior to the contract, as affirmed in appellant’s petition.

      . Appellees cite a circuit court case as limited authority for its factual assertion. Assuming for argument’s sake that Bill No. 82-71 carried out a repeal as claimed by appellees, the factual question of when the construction contract was executed was not before the court. Because one nisi prius court in another case determined that as a matter of fact the contract was let in 1972, such factfinding is not binding on nisi prius factfinders in other cases. See note 4, supra.

      . See Demory Bros v. Bal. Public Works of Md., 20 Md. App. 467, 316 A. 2d 529 (1974), affirmed 273 Md. 320, 329 A. 2d 674 (1974); Associated Builders and Contractors of Maryland v. Commissioner of Labor and Industry, 31 Md. App. 171, 355 A. 2d 509 (1976), cert. granted, 278 Md. 715 (1976).

      . If the ordinance was not considered by the trial judge he could hardly have judicially noticed it despite Cts. Art., § 10-203. It was not, therefore, a part of the record below permitted in an appendix by Rule 1028 e. and its inclusion should have been explained on motion under Rule 1027 b.