author: Gilbert, C. J.,

text:
    COMPTROLLER OF THE TREASURY v. MARYLAND SPECIALTY WIRE, INC.
    [No. 8,
    September Term, 1977.]

      Decided October 17, 1977.

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

      Paul S. Sugar, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Stephen M. Cordi, Assistant Attorney General, on the brief, for appellant.

      Richard W. Emory, with whom were Benson Everett Legg and Venable, Baetjer & Howard on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Taxation, the inevitable cost we bear for a civilized society, is, “[t]he art of so plucking the goose as to procure the most feathers with the least possible hissing.” The “plucking” of $8,290.12 in retail sales tax, in the case now before us, led, not only to a great deal of “hissing” by the taxpayer, but the defeat of the Comptroller of the State Treasury’s assessment before the State Tax Court and the Circuit Court for Baltimore County.

As the matter reaches us, it is the Comptroller, the appellant, whose feathers have been plucked, and who is hissing rather than the taxpayer. We are asked to reverse the judgment of the circuit court and reinstate the assessment of the additional tax upon Maryland Specialty Wire, Inc., the appellee.

We shall not do so, however, because we are of the view that both the circuit court and the tax court were correct in their respective holdings. Accordingly, for the reasons set forth infra, we affirm the judgment.

The question put to us is:

Are diamond and tungsten carbide core dies, purchased by the appellee, excluded from the scope of the Maryland Retail Sales Tax Act because they are destroyed in manufacturing, within the meaning of Md. Ann. Code art. 81, § 324 (f) (ii)?

Phrased in another form, the question is, are such dies, which have a relatively short use-life, more like a grinding wheel and, thus, exempt from the taxation, or are they more like a tool which is broken or worn out and, consequently, within the ambit of the tax?

The facts from which this case arose were presented to the Tax Court, and the circuit court by way of stipulation, with some “live” testimony being supplied at the Tax Court level. We summarize both the stipulation and testimony as follows:

Appellee is engaged in the manufacture of wire from steel alloys drawn through dies purchased for that purpose. On October 4, 1971, the Comptroller assessed against appellee the amount of $14,155.14 and penalty and interest thereon for allegedly unpaid sales and use taxes. Part of the assessment has since been resolved, but $8,290.12, the amount related to appellee’s purchases of diamond and tungsten carbide core wire extrusion dies, remains in controversy.

When appellee’s application for revision of the assessment was denied, it applied for and was granted a formal hearing before the Comptroller’s duly designated Hearing Officer. The result was that the dies were held to be taxable, and appellee’s application for revision of the assessment was denied. Within thirty days thereafter, appellee appealed the Comptroller’s decision to the Maryland Tax Court.

The wire manufactured by appellee varies from a diameter of approximately one-quarter inch to approximately four-thousandths of an inch. The wire is produced by reducing it in diameter. It is drawn sequentially through a series of dies with progressively smaller diameter holes. Each die is a circular steel casing, housing in its center a core of either a very small diamond or a small piece of tungsten carbide. The hole in the die through which the wire is drawn is made by piercing the diamond or tungsten with a laser beam.

The wire is progressively extruded through a series of smaller diameter dies until the desired diameter is achieved. The drawing process is conducted at speeds of up to thousands of feet per minute, producing friction, heat, and abrasion upon the surface of the diamond or tungsten carbide cores. The result is that the surface of the diamond or tungsten deteriorates and enlarges in diameter until it is out of tolerance. When that happens, the die is removed from the extrusion machine and the hole in the die is refinished or rounded to a slightly larger size than it was prior to its use in the drawing operation.

The use of a diamond die in a phase of extrusion averages two and a half days, while a tungsten carbide die lasts about eight hours. A die with a diamond core, on average, can be refinished or rounded and reused nine or ten times for larger diameter drawings. A die with a tungsten carbide core normally can be refinished or rounded and reused forty or forty-five times for larger diameter drawings. After the dies can no longer be refinished, they are scrapped. The steel casings which house the dies are not affected by the wire drawing process, but they are unsuitable for use in resetting new cores, and for practical purposes they have no further use.

Excluding the time that a die is out of service for refinishing or rounding, the average useful life of a die with a diamond core is twenty-five days consisting of twenty-four hours per day use. The average useful life of a die with a tungsten carbide core is fifteen days of twenty-four hours per day use.

The celerity with which dies are expended may be gleaned from a comparison with refractories which come into direct contact with molten metals in a modern steel blast furnace. The useful life of such refractories is at least two and a half to five years.-The useful life of grinding wheels used by appellee in its manufacturing operations is between thirty and sixty days of continuous operation. The grinding wheels of the appellee, through usage, are completely destroyed by abrasion.

At the hearing before the Maryland Tax Court, the Agreed Statement of Facts was supplemented by the testimony of Mr. Richard Nash, the president of appellee. Mr. Nash testified as to the deterioration of the wire drawing dies caused by abrasion, pressure, and temperatures created in the extrusion process. On cross-examination, Mr. Nash also testified that abrasion is the cause of any wearing away of virtually anything.

The Tax Court ordered the deficiency assessment against appellee abated and canceled. The Comptroller then filed a timely appeal to the circuit court, where the case was heard by Judge Edward A. DeWaters, Jr., who affirmed the decision of the Tax Court.

Md. Ann. Code art. 81, § 324 (f), the statute that forms the basis of the instant appeal provides in pertinent part:

“(f) ‘Retail sale’ and ‘sale at retail’ shall mean the sale in any quantity or quantities of any tangible personal porperty [sic] or service taxable under the terms of this subtitle. Said term shall mean all sales of tangible personal property to any person for any purpose other than those in which the purpose of the purchaser is ... to destroy the property so transferred in the manufacturing, assembling, processing or refining of other tangible personal property to be produced for sale .... Tangible personal property shall be considered to be destroyed in manufacturing, processing, assembling, refining ... if it is changed in nature by reason of its use in a relatively short period of time, as the nature of coal is changed by burning, as refractories which come in direct contact with molten metals are changed by heat and abrasion, as grinding wheels are reduced to dust, as acids are changed by contamination, and so forth. Property which is broken or mutilated shall not be considered to be destroyed. Tangible personal property shall not be considered to be destroyed in such operations if its value as property is ordinarily dissipated through the gradual wear or tear incident to its use. Machinery and small tools shall not be considered to be destroyed in such operations----” (Emphasis supplied.)

The General Assembly, in apparent response to the decision of the Court of Appeals in Comptroller v. American Cyanamid Co., 240 Md. 491, 214 A. 2d 596 (1965), holding that former Comptroller’s Rule 63, exempting property “consumed” in manufacture went beyond the power conferred on the Comptroller, amended Md. Ann. Code art. 81, § 324 (f) by 1966 Md. Laws, ch. 104, effective July 1, 1966.

The Comptroller reads the current § 324 (f) (6) as the sluice to strike pay dirt, while the appellee interprets that section to be an obstruction which prevents the Comptroller’s exacting the payment of the tax. Neither party disputes that the appellee’s purchase of the diamond and tungsten carbide core dies may not be taxed unless they fall without the exceptions embodied in § 324 (f).

The rule relating to the strict construction of a tax exemption statute is not applicable to this case because, “the exclusion of tangible personal property purchased for the purpose of resale in its original form, or for the purpose of incorporation into a finished product,” or where it is destroyed in the manufacture process “is by force of the definition,” Md. Ann. Code art. 81, § 324 (f), “and not by inclusion in the exemptions set out in” Md. Ann. Code art. 81, § 326. Baltimore Foundry & Machinery Corp. v. Comptroller, 211 Md. 316, 319, 127 A. 2d 368, 369 (1956); Comptroller of Treasury v. American Can Co., 208 Md. 203, 208, 117 A. 2d 559, 561 (1955). The rule that is applicable, however, is, where there is doubt as to the breadth of a tax statute, the act should be construed most strongly in favor of the taxpayer and against the taxing authority. Gould v. Gould, 245 U. S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211 (1917); Baltimore Foundry & Machinery Corp. v. Comptroller, supra, 211 Md. at 319-20, 127 A. 2d at 369; Comptroller of Treasury v. American Can Co., supra, 208 Md. at 208, 117 A. 2d at 561; Comptroller of Treasury v. Rockhill, Inc., 205 Md. 226, 234, 107 A. 2d 93, 98 (1954); Maryland Unemployment Compensation Board v. Albrecht, 183 Md. 87, 92, 36 A. 2d 666, 668-69 (1944); Magruder v. Hospelhorn, 173 Md. 62, 72, 194 A. 839, 844 (1937).

We have not been directed to, nor have we found a prior Maryland appellate decision interpreting § 324 (f) (ii). A review of the tax statutes and judicial interpretation thereof by our sister States has proven equally unhelpful as none are sufficiently analogous to be of assistance, with one apparent guide, if not exception, Hudson Pulp and Paper Corp. v. Johnson, 147 Me. 444, 88 A. 2d 154 (1952).

The Court, in Hudson, was called upon to decide whether a use tax levied upon lubricating oils and greases used to lubricate machinery, and certain wires and felts used to manufacture paper were “destroyed” in the course of the process and, hence, outside the ambit of the Maine Sales and Use Tax Law. The applicable Maine statute, P.L. 1951, ch. 250, § 2 read:

“ ‘Retail sale’ or ‘sale at retail’ means any sale of tangible personal property in the ordinary course of business, for consumption or use, or for any purpose other than for resale in the form of tangible personal property. . . . ‘Retail sale’ and ‘sale at retail’ do not include the sale of tangible personal property which becomes an ingredient or component part of, or which is consumed or destroyed or loses its identity in the manufacture of, tangible personal property for later sale by the purchaser, but shall include fuel and electricity.”

The Supreme Judicial Court of Maine reasoned in interpreting the statute at 147 Me. 444, 445-46, 88 A. 2d, 154, 155, that:

“The lubricating oils and greases used to lubricate the machinery, and the wires and felts used in connection with and on the machinery employed to manufacture paper, were all expendibles. ... As to the oils and greases it is self evident that their use for the intended purpose destroys them. True it is that the wires and felts are not completely annihilated by the intended use, but as a result of chemical action and mechanical abrasion both wires and felts are rendered useless after varying but relatively short periods of use; the wires having a life of one to four weeks, the wet felts six to ten days and the dry felts up to five months. After these periods the felts and wires become of no use in the paper-making business.
We hold that these articles of personal property by use for the purposes intended are consumed or destroyed within the meaning of those words as used in the Act.. ..”

The statute before us, in the present case, Md. Ann. Code art. 81, § 324 (f) defines “destroyed” as “changed in nature by reason of its use in a relatively short period of time.” The legislature made manifest what it meant by specific examples, such as “coal .. . changed by burning,” “refractories which come in direct contact with molten metals [and] are changed by heat and abrasion,” “grinding wheels” which by use “are reduced to dust.” The legislature, however, did not halt there. It went on to say, after stating the examples, “and so forth,” obviously meaning that the few illustrations in the statute are not to be considered as all inclusive, but rather that other tangible personal property which is similarly changed in nature by reason of its use in manufacturing is to be embraced within the exception. The diamond and tungsten carbide core dies used by the appellee in the extrusion of metal are “changed in nature” through heat and abrasion into ground dust in similar fashion as grinding wheels are reduced to dust by the same factors.

We believe the clear import of the language employed by the General Assembly in § 324 (f) does not demand that in order for tangible personal property to qualify for exclusion from the Retail Sales Tax Act that its prior identity must be totally obliterated, but only that its nature is changed. Merely because the die cores in the instant case are still recognizable as such does not mean that they are taxable. We perceive little, if any, difference between the effect of heat and abrasion on the die cores as distinguished from their effect on grinding wheels, which even though reduced to dust, the remnant is, nevertheless, recognizable as having been a grinding wheel.

The Comptroller does not contend in this case that any “change in nature” did not occur to the die cores within a “relatively short period of time.” Indeed, both parties have stipulated that the average useful life of a diamond core die is twenty-five days of continuous operation, and that the average useful life of a tungsten carbide core die is fifteen days of continuous operation. The grinding wheels used by appellee in its business have a useful life of between thirty and sixty days of continuous operation. The grinding wheels, as we have seen, are included within the exception articulated in § 324 (f).

Accepting, as we do, the premise that the dies used by appellee are more like “grinding wheels” than “tools,” as both nouns are utilized in § 324 (f), we look to the use-life of the grinding wheel to determine what is meant by a “relatively short period of time.” The stipulation contains the information that notwithstanding the use by appellee of “a cooling process and lubricants” to reduce heat and friction on the grinding wheels, the useful life of the grinding wheels of appellee “is between 30 and 60 days of continuous operation.” We infer that the useful life of a diamond or tungsten carbide core die must by equation be longer than sixty days in order for it to be taxable. We have previously noted that the useful life of such dies does not even approach the sixty-day mark, much less exceed it. We conclude, therefore, that the use-life of the dies, in the case at bar, is expended within “a relatively short period of time,” and, thus, falls within the scope of the statutory exception.

The Comptroller argues that § 324 (f) makes unmistakable that tangible personal property shall not be considered destroyed if its value is “ordinarily dissipated through the gradual wear and tear incident to its use.” The fallacy in that approach is that the disintegration of the dies is not gradual, but occurs within the “relatively short period of time” prescribed by the statute.

We hold that the diamond and tungsten carbide core dies of the appellee are “destroyed” within the meaning of Md. Ann. Code art 81, § 324 (f) in that they are “changed in nature by reason of . . . [their] use in a relatively short period of time.” The Circuit Court for Baltimore County did not err in affirming the order of the Tax Court which directed an abatement of the assessment.

Judgment affirmed.

Costs to be paid by the appellant.

      . Compañía General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U. S. 87, 100, 48 S. Ct. 100, 72 L. Ed. 177 (1927).

      . An 18th Century French maxim attributed to Jean Baptiste Colbert.

      . Plus penalty and interest.

      . See also State of Maryland, Comptroller of the Treasury, Tax Rules and Regulations, Retail Sales and Use Tax Rule #63, which reads:
      “An amendment to Section 324(f) of the Retail Sales Tax Act, effective July 1,1966, exempts sales of tangible personal property which is destroyed in the manufacturing, assembling, processing or refining of other tangible personal property to be produced for sale. The terms ‘manufacturing’, ‘assembling’, processing’ and ‘refining’ shall not include (a) maintaining, servicing or repairing; (b) testing finished products; or (c) providing for the comfort or health of employees.
      “Property shall be considered to be destroyed in manufacturing, processing, assembling or refining if it is changed in nature by reason of its use in a relatively short period of time as the nature of coal is changed by burning, as refractories which come in direct contact with molten metals are changed by heat and abrasion, as grinding wheels are reduced to dust and as acids are changed by contamination, and so forth. Property which is broken or mutilated shall not be considered to be destroyed.
      “Not every item which is rendered unfit for use in a short period of time or even by a single use qualifies for the exemption. In order to qualify, the use must effect a change in the nature of the item. Tools which are broken or worn, molds which are broken, blades the cutting edges of which are dulled, are among those items that do not qualify though used only once. In no instance shall the deterioration of items through ordinary wear or tear make such items eligible for this exemption. Items rendered useless by gradual wear and tear are beyond the scope of the exemption.
      “Items which do qualify for the exemption may be purchased tax free through the issuance by the vendee of a resale certificate to the vendor.”

      . Some other United States Supreme Court cases so holding are: McFeely v. Comm., 296 U. S. 102, 56 S. Ct. 54, 80 L. Ed. 83 (1935); United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240 (1923); United States v. Field, 255 U. S. 257, 41 S. Ct. 256, 65 L. Ed. 617 (1921).

      . In the case of Zenith Litho Reproductions, Inc., and Craftsman Press, Inc. v. Comptroller, Md. Tax Ct. (Sales Tax Nos. 6 & 7, 1970), [1970] 2 Md. Tax Rep. (CCH) § 200-603, the Tax Court held that certain aluminum lithographic plates purchased by Craftsman Press were not subject to sales taxation because after 10,000 to 100,000 prints, each plate would no longer produce prints of the required quality, and were thus consumed and scrapped. The Tax Court decided that the plates were “destroyed” within the meaning of Section 324 (f) because they were changed in nature by reason of their use in a relatively short period of time in the production of tangible personal property for sale. The case was settled in the Circuit Court for Prince George’s County on other grounds.

      . The statute has since been revised. See Me. Rev. Stat. tit, 36, § 1752, 11, which adds in pertinent part that tangible personal property is considered “consumed or destroyed” or “loses its identity” in manufacture if it has a normal physical life expectancy of less than one year as a usable item in the use to which it is applied.


source: Caselaw Access Project

license: Public Domain

text:
    HERMAN H. GENSLER et ux. v. KORB ROOFERS, INC.
    [No. 37,
    September Term, 1977.]

      Decided October 17, 1977.

    The cause was argued before Gilbert, C. J., and Menchine and Wilner, JJ.

      Saul E. Zalesch, with whom were Charles E. Wehland, Ronald L. Spahn and Wehland & Spahn, P.A. on the brief, for appellants.
    No appearance for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The appellants, Herman H. Gensler and Rhoda M. Gensler, his wife, in May 1976, filed a declaration grounded on breach of warranty, in the Circuit Court for Howard County against Korb Roofers, Inc. (Korb), the appellee and John N. Bowers, Inc. (Bowers).

The declaration averred that Korb “was the roofing subcontractor for . . . Bowers” on the property known as 11005 Elves Way, Columbia, Howard County, Maryland. Gensler said that he purchased the property, a new home, from Bowers “on or about April 1973” for the sum of $76,000. According to Gensler’s brief, the “roof began to leak three months later.” Korb was notified and one of its employees visited the property, but no corrective action was undertaken by Korb.

Gensler’s declaration recited:

“That there has resulted, a breach of the warranties by John N. Bowers, Inc., said warranties being that the house was built to good engineering standards, free of defects and fit for use as a residence, said roof and roof drains being included among those parts of the house so warranted; but that in fact, the roof and roof drains were improperly constructed, in that the Defendant, John N. Bowers, Inc., and the Defendant Korb Roofers, Inc., failed to install the roof and drain system on the roof, in a good and workmanlike manner, and failed to pitch the roof in a good and workmanlike manner; all of which are in breach of the aforesaid warranties, and which have caused the leaks complained of herein. That as a direct result of the Defendants’ acts as aforesaid, the Plaintiffs [Gensler] have had serious damage to the interior of their house, and have been and will be in the future, obligated to expend large sums of money to repair the roof and drain systems. That they have lost the partial use of their home.” (Emphasis supplied.)

Bowers and Korb filed demurrers. Korb asserted that there was no privity of contract between itself and Gensler and, additionally, Korb raised the defense of the Statute of Limitations. Md. Real Prop. Code Ann. § 10-204 (c). That section mandates:

“Any action arising under this subtitle shall be commenced within two years after the defect was discovered or should have been discovered or within two years after the expiration of the warranty, whichever occurs first.”

It is, of course, apparent on the face of the declaration that the action for breach of warranty was barred by Md. Real Prop. Code Ann. § 10-204 (c).

Apparently, without waiting for a ruling on the demurrer, Gensler filed an amended declaration on September 10,1976. A belated leave to amend order was obtained from the court on September 24, 1976. The amended declaration, filed only against Korb, asserted that:

“Korb . .. failed to install the roof and drain system on the roof, in a good and workmanlike manner and failed to pitch the roof in a good and workmanlike manner, all of which failures have caused the leaks complained of herein. As a direct result of the Defendant’s [Korb’s] negligence as aforesaid, the . .. roof collected a pool pf water whose weight threatened to collapse the roof, and it permitted water to enter the house causing severe damage to its interior. The Plaintiffs [Gensler] have been and will be in the future obligated to expend large sums of money to repair the roof and roof drain systems. They have lost the partial use of their house.” (Emphasis supplied.)

The amended declaration, like its predecessor, was met by a demurrer. That demurrer interposed the question of limitations as well as lack of privity between the parties.

Judge James Macgill, after oral argument, sustained the demurrer without leave to amend, and this appeal ensued.

Our reading of the record discloses that Judge Macgill did not ground his decision on the question of limitations but rather on the basis that under existing Maryland law “a sub-contractor is [not] liable for negligent construction to the owner that purchases the home.”

Gensler puts two questions to us. He asks:

“1. Does Maryland law permit third parties foreseeably damaged by the negligence of contractors with whom they have not dealt to recover in tort against these contractors?
2. Did the Appellee’s [Korb’s] dealings with .. . [Gensler] after the transfer of the house constitute the privity required in contract?”

The first issue is actually an overly broad question bearing upon this case only because of its massive sweep. In any event, we shall not endeavor to answer it or the second issue because it is apparent from the record that the cause of action, if indeed there be one, is barred by the Statute of Limitations, in warranty by Md. Real Prop. Code Ann. § 10-204 (c), and in negligence by Md. Cts. & Jud. Proc. Code Ann. § 5-101.

Assuming, arguendo, that there was privity of contract between Gensler and Korb, the general rule is that the period of limitations begins to run from the date of the breach, for it is then that the cause of action accrues and becomes enforceable. Mayor of Federalsburg v. Allied Contractors, Inc., 275 Md. 151, 157, 338 A. 2d 275, 280 (1975). See also Cotham v. Board of County Comm’rs, 260 Md. 556, 273 A. 2d 115 (1971); Mumford v. Staton, Whaley & Price, 254 Md. 697, 255 A. 2d 359 (1969); Whitcomb v. Horman, 244 Md. 431, 224 A. 2d 120 (1966); Fisher v. Medwedeff 184 Md. 167, 40 A. 2d 360 (1944); Vincent v. Palmer, 179 Md. 365, 19 A. 2d 183 (1941).

In the instant case, the breach of warranty occurred in July 1973, so that limitations began to run at that time. Gensler had until July 1975 to institute his cause of action in warranty. Because the original declaration was not brought until May 19,1976, Gensler is barred from recovering in that cause. Md. Real Prop. Code Ann. § 10-204 (c).

Maryland, since Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917), had adopted the “discovery rule,” i.e., that the cause of action in professional malpractice cases accrues when the claimant discovers or reasonably should have discovered that he has been wronged. Watson v. Dorsey, 265 Md. 509, 290 A. 2d 530 (1972). The Court of Appeals has also applied the “discovery rule” to cases involving faulty construction. Steelworkers Holding Co. v. Menefee, 255 Md. 440, 258 A. 2d 177 (1969); Callahan v. Clemens, 184 Md. 520, 41 A. 2d 473 (1945). See also Mettee v. Boone, 251 Md. 332, 247 A. 2d 390 (1968).

Gensler is correct in his assertion that the “discovery rule” is applicable to the case sub judice. The rule, however, will avail him naught because the “Amended Declaration,” alleging a cause of action in negligence, was not filed until September 10, 1976, a time in excess of three years after the alleged negligence was discovered.

Gensler, through counsel, readily acknowledges that the roof began to leak three months after purchase of the house. Since he bought the property in April 1973, it follows that three months thereafter would be July 1973. Ergo, Gensler knew of the alleged negligence by July 1973. His bringing the claim in September 1976 was simply too late.

While Gensler’s counsel contended that the “Amended Declaration” did not state a new cause of action but merely related back to the original declaration filed on May 19,1976, we do not see it that way. The original suit was brought in warranty, as any fair reading thereof will reveal. There is absolutely nothing in that original declaration relating to negligence.

The rule is that amendments to pleadings are to be allowed freely and liberally, Crowe v. Houseworth, 272 Md. 481, 325 A. 2d 592 (1974); Bay State Ins. Co. v. Hill, 34 Md. App. 593, 368 A. 2d 1024 (1977), so long as the operative factual pattern remains essentially the same, and no new cause of action is stated invoking different legal principles.

In Myers v. Aragona, 21 Md. App. 45, 51, 318 A. 2d 263, 266 (1974), we said:

“The rule is that if an amendment sets forth a new cause of action, then limitations is measured from the time of the accrual of the cause to the date the amended declaration is filed, but if the amendment does not state a new cause of action, then limitations is determined with reference to the date of the original filing. Doughty v. Prettyman, 219 Md. 83, 148 A. 2d 438 (1959); Cline v. Fountain, Etc., Company, 214 Md. 251, 134 A. 2d 304 (1957).”

The amended declaration, in the matter now before us, does set forth a new cause of action founded on a different legal theory, namely, negligence. Consequently, it should have been filed no later than the end of July 1976. It was not, so it is, therefore, barred by Md. Cts. & Jud. Proc. Code Ann. § 5-101.

We recognize that Judge Macgill did not decide the case on the basis of limitations, although that question was put to him. We, however, deem it advisable to invoke the authority of Md. Rule 1085 and decide the question so as to prevent unnecessary further litigation which might arise if we were to answer appellant’s issues in the affirmative and then reverse and remand for trial where limitations would again be raised. We are not to be understood, however, as indicating what course we will follow if any other such question is properly put to us.

Order sustaining demurrer without leave to amend affirmed.

Costs to be paid by appellants.

      . We glean from the record that Bowers’s demurrer was successful. In any event, Bowers is not a party to this appeal.

      . In the light of Md. Rule 320 d, leave of court to amend was an unnecessary act.

      . We observe that proper practice would be to raise limitations by a special plea, Md. Rule 342 c 2 (a) and not by way of demurrer. Hoover v. Williamson, 236 Md. 250, 203 A. 2d 861 (1964). No issue was made in the circuit court or here of the impropriety of limitations being raised in the demurrer.

      . Md. Cts. & Jud. Proc. Code Ann. § 5-101 provides:
      “A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.”


author: Moore, J.,

text:
    STEPHEN W. WEEMS et al. v. NANTICOKE HOMES, INC. et al.
    [No. 38,
    September Term, 1977.]

      Decided October 17, 1977.

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

      Richard J. Brooks and Read K. McCaffrey, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellants.

      Thomas J. Keating, IV, with whom were Ernest M. Thompson and Miller, Wheeler, Thompson & Thompson on the brief, for appellee Comfort Heating & Air Conditioning, Inc. Submitted on brief by Roy B. Cowdrey, Jr., for other appellee.
   Moore, J.,

delivered the opinion of the Court.

Two distinct areas of the law of contracts are involved in this appeal. We are first asked to determine the effect to be given to a contractual provision requiring the purchasers of a modular home to obtain fire insurance, effective as of the date the house was placed on the foundation, where the builder’s negligence may have been responsible for the destruction of the home by fire. Secondly, we examine the present state of the “third-party beneficiary” doctrine in Maryland, and whether a subcontractor, whose conduct may also have caused the property loss, may insulate itself from liability as an “intended” beneficiary of the insurance provision in the contract between purchasers and builder.

In an action brought in the Circuit Court for Talbot County by the home buyers, Stephen W. Weems and Beth M. Weems, his wife, to their own use and to the use of the Continental Insurance Co., summary judgment was entered in favor of Nanticoke Homes, Inc., a manufacturer of modular homes, and Comfort Heating & Air Conditioning, Inc., an electrical subcontractor, on their respective motions. The individual and use plaintiffs appeal from these rulings. We will affirm as to Nanticoke, and reverse as to Comfort.

I

Appellants Stephen and Beth Weems were the owners of certain real property bordering Route 50, near Williamsburg, in Talbot County, Maryland. By a contract dated April 23, 1974 and entitled “Proposal No. 1,” they agreed to pay the sum of $35,218 to Nanticoke Homes, Inc., a Delaware corporation, for the construction of a residence upon their land. The structure contemplated was a modular home, built at Nanticoke’s factory in Greenwood, Delaware. In addition to the standard “56' x 28' Nanticoke Home,” the one-page contract listed certain optional features to be included in the unit, as constructed.

In two places, the contract made reference to property insurance. Following the itemization of options was a typewritten statement:

“Insurance in the proper amount to cover any and all losses shall be the responsibility of the Buyer, beginning on the day the house is placed on the foundation.”

Later in the document, opposite the signature of Nanticoke’s representative, came a paragraph of typeset language presumably part of the form contract itself, which contained the following sentence: “Owner to carry fire, tornado and other necessary insurance.”

A major portion of the electrical work on the appellants’ home was done by Comfort Heating & Air Conditioning, Inc. in Nanticoke’s Delaware factory. The remainder was completed on-site in Talbot County, after delivery of the home on September 11, 1974. Such work was performed in accordance with specifications set forth in a “Mechanical Contract” between Nanticoke and Comfort, effective March 1,1974.

The modular home was completed on the Weemses’ lot on October 1, 1974. Comfort had, by this time, installed the electrical system, and, on October 4th, Choptank Electric Cooperative, Inc., the local power supplier, connected the house to its electric transmission system. On October 7th, prior to the time appellants were to take possession, the home was totally destroyed by fire. Investigators from the Fire Marshal’s office could not pinpoint the exact cause of the blaze, but did determine that it originated at or near the electrical panel in the house.

Substantial expenses in replacing the house were incurred by the Weemses, all or most of which were covered and paid for by the proceeds of a fire insurance policy they had purchased from Continental Insurance Co. The Weemses and Continental then brought this action against Nanticoke and Comfort to recover their damages, alleging that the fire was caused by the negligence of one or both defendants. On this appeal, the basic issues for our determination are whether the trial court correctly held that the insurance provision in the contract between the Weemses and Nanticoke served to exculpate Nanticoke from liability for its own alleged negligence, and that Comfort was similarly relieved of liability for its alleged negligence, as a third-party creditor beneficiary of the contract.

II

With respect to the first issue, the trial court concluded in a comprehensive written opinion that the provisions of the agreement between buyers and builder were susceptible of only one interpretation, namely, that it was the owners’ responsibility to insure the house against all perils once it was placed on its foundation; “and if the house was damaged or destroyed thereafter by the occurrence of fire or some other insurable peril, then the owners and Nanticoke must look to the insurer and not to each other to make them whole again, even though the fire might have been caused by the negligence of one or both parties to the contract.” We find this holding to be eminently correct. Appellants’ efforts to distinguish or to avoid the impact of the leading cases on the subject are unavailing.

In a recent decision of this Court, Brodsky v. Princemont Construction Co., 30 Md. App. 569, 354 A. 2d 440 (1976), we discussed this identical issue. Plaintiffs in Brodsky, the owners of real property, entered into an agreement with defendant, a building contractor, for the construction of certain apartments in Frederick. The contract provided that plaintiffs would insure the property against loss from fire and other perils. Prior to the completion of construction, defendant’s superintendent caused a fire in one building while attempting to remove a skunk from an interior wall partition by injecting propane gas into the wall. Substantial losses occurred, all of which were paid by plaintiffs’ insurer, Public Service Mutual Insurance Co. In an action brought against the defendant construction company by the property owners and the insurer, as assignee or subrogee of the owners’ rights, the plaintiffs alleged that the insurance policy did not cover losses resulting from the negligence of the defendant. The trial court disagreed, entering summary judgment for the defendant, and we affirmed.

Discussing first the insurer’s right of subrogation under such facts, this Court, in an opinion by Judge Powers, found that the insurer could have no greater right to recover than that possessed by the insured, quoting Packham v. German Fire Insurance Co., 91 Md. 515, 526, 46 A. 1066 (1900):

“The right of subrogation is derivative, and comes solely from the assured, and can only be enforced in his right. If the assured has no right which he can transfer to the insurer, then the insurer can have no subrogation and, cannot take the place of the assured for the purpose of enforcing liability of the wrongdoer for the loss.” 30 Md. App. at 574, 354 A. 2d at 444. (Citations omitted; emphasis added.)

Having determined that the insurance company’s rights were dependent upon those of the insured, we discussed the case of General Cigar Co. v. Lancaster Leaf Tobacco Co., 323 F. Supp. 931 (D. Md. 1971), and held, on the strength of that case and authorities in other jurisdictions, that “the contract between [the property owner] and [the defendant] contemplated that the risk of damage to the property by fire would be covered by insurance, and not by either of the parties.” 30 Md. App. at 576, 354 A. 2d at 445. The lower court’s ruling was therefore affirmed.

The General Cigar case, supra, was a case of first impression on this issue under Mayland law. The insurance obtained by the plaintiff, General Cigar, pursuant to an agreement with the defendant, Lancaster Leaf, was designed to cover any loss from fire which occurred while the plaintiff’s tobacco was housed in storage facilities arranged for by the defendant. When fire did destroy some 7500 bales, General Cigar and its insurer brought suit against Lancaster, charging that its negligence was responsible for the loss, and that it should not be exculpated from liability by virtue of insurance purchased by General Cigar. The court found that the prior agreement to provide insurance was valid, and settled the question of who should bear the loss under the circumstances. Judge Harvey wrote:

“It has been recognized by numerous authorities that where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain, such agreement must be construed as providing mutual exculpation to the bargaining parties who must be deemed to have agreed to look solely to the insurance in the event of loss and not to liability on the part of the opposing party.” 323 F. Supp. at 941. (Emphasis added.)

The insurer, as well as the insured, was bound by the agreement to substitute insurance for liability, and no right of subrogation existed. Summary judgment for the defendant was therefore entered.

We see little to distinguish the General Cigar and Brodsky cases from the facts before us here. It appears to us that the provisions in the contract requiring the Weemses to insure the property against loss were a “bargained for” element of the agreement, and the parties were free to contract as they pleased.

Appellants raise two basic arguments for the proposition that the General Cigar and Brodsky cases should not be followed. First, relying on the case of Chesapeake & Potomac Telephone Co. v. Allegheny Construction Co., 340 F. Supp. 734 (D. Md. 1972), they contend that contracts will not be construed to indemnify a person against his own negligence unless such indemnification is expressed in clear and unequivocal language. Whether we would agree with the decision or not is irrelevant because the contract in the instant case is not a contract of indemnity, as the lower court clearly recognized, but rather an agreement whereby contracting parties shifted the risk of loss by fire to the insurer irrespective of negligence. Smith v. Ryan, 142 So. 2d 139, 141 (Fla. App. 1962). Here one party has agreed to provide insurance against “any and all loss.” Obviously, there is no similarity between such a clause and “hold harmless” or indemnification provisions.

Next, appellants seek to analogize the contract between the parties in this case with those purporting to “indemnify one party against liability for damages arising out of bodily injury or property damage caused by or resulting from the sole negligence of the promisee or indemnitee.. ..” Such agreements are void and unenforceable as contrary to public policy under Md. Cts. & Jud. Proc. Code Ann. § 5-305 (1974).

Even if this statute were susceptible of retrospective application, it would have no relevance here because, as already stated, the subject contract contains no covenants to indemnify. As Judge Powers stated in Brodsky, supra:

“Fire insurance covers the property bss sustained regardless, generally speaking, of its cause. Insurance against negligence indemnifies the negligent person as to his liability to another.” 30 Md. App. at 573, 354 A. 2d at 443.

We will therefore affirm the trial court’s ruling that Nanticoke was entitled to summary judgment as a matter of law. Md. Rule 610; Hurt v. Stillman & Dolan, Inc., 35 Md. App. 644, 371 A. 2d 1137 (1977).

Ill

The remaining question for our consideration is whether the contractual provision allocating the responsibility for obtaining insurance to the buyers operated to the benefit of Comfort, as well as Nanticoke. The trial court, in granting Comfort’s motion for summary judgment, found that Comfort was a third-party creditor beneficiary of the contract and was therefore exculpated from any liability for damages arising from its negligence, such losses being fully covered by the insurance. We do not agree that Maryland law dictates this result.

The leading cases in Maryland dealing with the issue of whether a stranger to a contract may claim its benefit rely heavily upon Restatement of Contracts § 133 (1932), which defines the categories of beneficiaries as follows:

“§ 133. Definition of Donee Beneficiary, Creditor Beneficiary, Incidental Beneficiary.
(1) Where performance of a promise in a contract will benefit a person other than the promisee, that person is, except as stated in Subsection (3):
(a) a donee beneficiary if it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due \nor supposed or asserted to be due from the promisee to the beneficiary;
(b) a creditor beneficiary if no purpose to make a gift appears from the terms of the promise in view of the accompanying circumstances and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary, or a right of the beneficiary against the promisee which has been barred by the Statute of Limitations or by a discharge in bankruptcy, or which is unenforceable because of the Statute of Frauds;
(c) an incidental beneficiary if neither the facts stated in Clause (a) nor those stated in Clause (b) exist.
(2) Such a promise as is described in Subsection (la) is a gift promise. Such a promise as is described in Subsection (lb) is a promise to discharge the promisee’s duty.”

The rules are thus quite precise as to whether a third-party may enforce a contract which might operate in its favor. If the third-party is neither a creditor nor a donee of a party to the contract, the benefit is merely incidental, and no legal rights under the contract ensue.

Mackubin v. Curtiss-Wright Corp., 190 Md. 52, 57 A. 2d 318 (1948), was the first clear pronouncement of the third-party beneficiary doctrine based upon Restatement § 133. In that case, plaintiff, a shareholder, brought an action to recover certain financial losses sustained through additional stock purchases when defendant corporation failed to announce in a timely manner that an annual dividend had not been declared by its board of directors. A stock-listing agreement between defendant and the New York Stock Exchange required prompt notice to shareholders of any corporate action with respect to dividends, and plaintiff claimed the status of a third-party beneficiary to that agreement. The trial court directed a verdict for the corporation, and the Court of Appeals affirmed, holding that plaintiff had no rights stemming from a contract to which she was not a party:

“[I]t is generally accepted that before a stranger to a contract can avail himself of the exceptional privilege of suing for a breach thereof, he must at least show that it was intended for his direct benefit. ... An incidental beneficiary acquires by virtue of the promise no right against the promisor or the promisee. ... In order to recover it is essential that the beneficiary shall be the real promisee; i.e., that the promise shall be made to him in fact though not in form. It is not enough that the contract may operate to his benefit. It must clearly appear that the parties intend to recognize him as the primary party in interest and as privy to the promise.” 190 Md. at 57-58, 57 A. 2d at 321. (Citations omitted; emphasis added.)

Since the listing agreement gave no right to prospective purchasers of stock, and no injury to plaintiff’s rights as a stockholder occurred, plaintiff could not recover her alleged damages.

This issue was again before the Court of Appeals in Marlboro Shirt Co. v. American District Telegraph Co., 196 Md. 565, 77 A. 2d 776 (1950). Plaintiff in Marlboro, a; lessee of business premises, sued defendant utility company for damages arising from its failure to detect an overflow of water, in accordance with the provisions of a contract between plaintiff’s lessor and defendant for the installation and maintenance of a sprinkler system. In response to plaintiff’s asserted status as a third-party beneficiary of the contract, defendant alleged that no party to the contract had intended to benefit plaintiff. Citing Mackubin, supra, and Restatement § 133, the court found no promise by the defendant to the plaintiff to install an alarm system to prevent flooding. Had defendant performed its obligation under the contract, plaintiff would, indeed, have incidentally benefited. Under the Restatement rule, however, no duty was owing to an incidental beneficiary, and plaintiff could not recover for breach of defendant’s obligation to the lessor.

Later cases have strictly adhered to the Restatement position that only a donee or creditor beneficiary may enforce an obligation created by a contract to which it was not a party. In Hamilton and Spiegel, Inc. v. Board of Education, 233 Md. 196, 199, 195 A. 2d 710, 711 (1963), the court stated:

“In determining whether one is a creditor beneficiary (as is true in the case of a donee beneficiary) the intention of the contract, revealed by its terms, in the light of the surrounding circumstances is the controlling determinative.
“It is not enough that the contract may operate to the benefit of the one claiming to be a beneficiary.” (Emphasis added.)

A subcontractor, in the above case, was not permitted to avail itself of the defendant’s obligation to pay the prime contractor, merely because the defendant had received the benefit of the plaintiff’s work. The contracting parties had no intent to make the plaintiff a creditor beneficiary.

Further, in Shillman v. Hobstetter, 249 Md. 678, 241 A. 2d 570 (1968), the court emphasized that the rights of a third party are dependent upon the intentions of the promisee, since the promisor’s reason for making the promise is generally his desire to obtain certain consideration. See 4 Corbin on Contracts § 776 (1951). Where the contract clearly indicates an intent that third parties should receive a direct benefit, there is no question that they may seek enforcement against the promisor. “An incidental beneficiary,” on the other hand, “acquires no right against the promisor or the promisee.” Bolick v. Board of Education, 256 Md. 180, 185, 260 A. 2d 31, 33 (1969).

In the case before us, Comfort argues that it was an “intended beneficiary” of the contract between the Weemses and Nanticoke. As previously noted, Nanticoke and Comfort had entered into a “Mechanical Contract” for their collaboration in the construction of Nanticoke’s modular homes. Such contract contained several statements of “Purpose,” including, inter alia, “To see that Nanticoke Homes and Comfort Heating & Air Conditioning, Inc. are more profitable organizations because of this relationship.”

The lower court was persuaded by Comfort’s contention, finding that the two companies “contemplated a long, continuing, close and mutually profitable business arrangement that almost amounts to a joint venture.” This interpretation of the parties’ relationship is, we think, clearly erroneous. The “Mechanical Contract” had been in effect for less than two months when the Weemses entered into their agreement with Nanticoke. Its term was to be “for an indefinate [sic] period of at least one year” and it could “be renegotiated on or about it’s [sic] semi-annual anniversary.” In our view, the relationship between Comfort and Nanticoke resembled more a temporary, or trial, association, than a permanent, or longstanding, joint undertaking.

The Court of Appeals has not retreated from the view that a party claiming third-party beneficiary status must “show that [the contract] was intended for his direct benefit,” Mackubin v. Curtiss-Wright Corp., supra, at 57-58, 57 A. 2d at 321, and that such intent stemmed from the promisee’s status as a debtor of the third-party, or from donative motives. Even if a close relationship was contemplated between Nanticoke and Comfort, no argument can be made that Nanticoke intended to confer a “gift” upon Comfort when it contracted with the Weemses that they were to bear the burden of providing insurance against loss. Unless Comfort, then, meets the requirments for the status of a creditor beneficiary, it may claim no rights under the contract. The real question is whether in the language of § 133 (1) (b) of the Restatement “performance of the promise [would] satisfy an actual or supposed or asserted duty of the promisee to the beneficiary.. ..” (Emphasis added.)

We can find no “duty” on the part of Nanticoke to insulate its subcontractor, Comfort, from liability for its possible negligence. To conclude, as did the lower court, that Nanticoke had Comfort’s interests in mind, equally with its own, in entering into the contract with the Weemses is, we believe, unwarranted by the facts.

Comfort urges us to apply in this case the liberalized principles of Restatement (Second) of Contracts § 133 (Tent. Draft No. 3, 1967), which substitutes the terms “intended” and “incidental” for “donee” and “creditor” in the original Restatement section on third-party beneficiary law. The Court of Appeals has recognized no such change in Maryland law, and we would hesitate to recommend it in this case. Even under the new Restatement section, the requirement would remain that one party intended to confer a direct benefit upon the other. The record does not establish that Nanticoke so intended to assist Comfort. The trial court therefore erred in granting Comfort’s motion for summary judgment.

Judgment affirmed as to defendant Nanticoke and reversed as to defendant Comfort; cause remanded for trial on the issue of Comfort’s liability; costs to be equally divided between appellants and Comfort.

      . The relevant provisions of the contract were as follows:
      “21.1. Unless otherwise provided, the Owner shall purchase and maintain property insurance upon the entire Work at the site to the full insurable value thereof. The insurance shall include the interests of the Owner, the Contractor, Subcontractor and Sub-subcontractors in the Work and shall insure against the perils of Pire, Extended Coverage, Vandalism and Malicious Mischief.
      “21.4. The Owner and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under this paragraph. The Contractor shall require similar waivers by Subcontractors and Sub-subcontractors.”

      . The defendant Lancaster’s bailee was also a defendant in the case, and summary judgment was similarly entered in its favor.

      . We note, as did the lower court, that this section of the Code became effective on July 1, 1974, more than two months after the parties entered into the construction contract.

      . There is substantial support in other jurisdictions for the rule set forth in the General Cigar and Brodsky cases. The following decisions are representative: Newport News Shipbuilding & Dry Dock Co. v. United States, 34 F. 2d 100 (4th Cir. 1929); General Mills, Inc. v. Goldman, 184 F. 2d 359 (8th Cir. 1950), cert. denied, 340 U. S. 947 (1951); Cerny-Pickas & Co. v. C. R. Jahn Co., 131 N.E.2d 100 (Ill. 1955); Isley v. Bolling Aero Club, Inc., 148 A. 2d 717 (D.C. Mun. App. 1959); Smith v. Ryan, supra; Indep. School Dist. No. 877 v. Loberg Plumbing & Heating Co., 123 N.W.2d 793 (Minn. 1963); Rock Springs Realty, Inc. v. Waid, 392 S.W.2d 270 (Mo. 1965); and Mayfair Fabrics v. Henley, 234 A. 2d 503 (N.J. Super. 1967).


author: Melvin, J.,

text:
    LEONARD ONEAL DOUGLAS v. STATE OF MARYLAND
    [No. 53,
    September Term, 1977.]

      Decided October 17, 1977.

    The cause was submitted on briefs to Thompson, Melvin and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, for appellant.

      Submitted by Francis B. Burch, Attorney General, Leroy Handwerger, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and James F. Schneider, Assistant State’s Attorney for Baltimore City, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On January 13, 1977, Leonard 0. Douglas, appellant, was tried without a jury in the Criminal Court of Baltimore and convicted of unlawfully carrying a handgun in violation of Md. Ann. Code Art. 27, § 36B (b) (1976 repl. vol.). He was given a suspended sentence of one year and was placed on two years probation. Appellant contends on appeal that he was improperly convicted because the evidence failed to show that the weapon, a CO2 pellet gun, having the appearance of a pistol, was a “handgun”. We agree.

In Howell v. State, 278 Md. 389, 396, 364 A. 2d 797 (1976) the Court of Appeals stated the following rule as to what constitutes a handgun within the meaning of the statute:

“. . . [F]or this device to be a handgun it must be a firearm or it must be readily or easily convertible into a firearm. We further conclude that to be a firearm it must propel a missile by gunpowder or some such similar explosive . . . .”

In the instant case, there is sufficient evidence that the weapon does “propel a missile”. There is no evidence, however, that the missile is propelled by “gunpowder or some such similar explosive”. In its brief, the State, citing Howell v. State, supra, concedes that “the record is silent insofar as presenting any evidence whatsoever indicating that the pellets were expelled by gunpowder or some similar explosive or that the pellet gun was easily convertible into ... a firearm” and therefore “there is no legally relevant evidence that the pellet gun in question was a handgun within the meaning of Article 27, Section 36B”.

In Todd v. State, 28 Md. App. 127, 343 A. 2d 890 (1975), we expressed the belief that the declaration of policy forming part of the handgun statute “indicated] an intent to include [within the meaning of ‘handgun’] any hand weapon simulating the appearance of a pistol or revolver that is capable of discharging a missile by any method of propulsion”. (Emphasis added.) The Court of Appeals’ decision in Howdl, supra, tells us we were wrong and we now expressly overrule Todd v. State, supra.

As there is no evidence in this case that carbon dioxide (CO2) is an explosive similar to gunpowder or that the weapon is “easily convertible into a firearm”, the judgment of conviction must be reversed. Pharr v. State, 36 Md. App. 615, 375 A. 2d 1129 (1977); Tisdale v. State, 30 Md. App. 334, 353 A. 2d 653 (1976).

Judgment reversed.

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


author: Lowe, J„

text:
    JAMES WILLIAM HENNESSY, JR. v. STATE OF MARYLAND
    [No. 66,
    September Term, 1977.]

      Decided October 18, 1977.

      The cause was argued before Moore, Lowe and Liss, JJ.

      Robert C. Heeney and John M. Quinn, with whom were Heeney, McAuliffe, Rowan & Abell on the brief, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Philip H. Armstrong, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J„

delivered the opinion of the Court.

Any appeal found in this appeal of James William Hennessy, Jr. imparts more remorseful concern than legal deficiency. Two young men, formerly friends, became estranged by the apparent attentions of a young lady. The deterioration of their friendly relations resulted in the death of one and the manslaughter conviction of the other. It is apparent from the relatively lenient sentence of five years (of which only 18 months need be served) that all the tangential circumstances were considered fully by Judge John J. Mitchell, who imposed the sentence after appellant was convicted by a jury in the Circuit Court for Montgomery County.

Appellant was a slightly built 23-year-old college student who had been impaired by a cleft palate and deformed lip affecting his speech, swallowing and appearance. This condition had been treated periodically for over a decade until 1971. The victim had for two or three weeks been antagonistically aggressive toward appellant after a misunderstanding over a girl. Appellant’s evidence of the victim’s conduct just prior to his death would support a conclusion that the victim was assaulting appellant when he was fatally stabbed by appellant. It was upon such evidence that appellant’s primary defense of self-defense was premised.

He contends here that it was improper for the court to have submitted the second degree murder charge to the jury, over his motion for judgment of acquittal, because although he had introduced the element of self-defense, it was not negated by the State. The issue, however, appears to be moot or, at worst, harmless beyond a reasonable doubt, see Dorsey v. State, 276 Md. 638, in light of the not guilty verdict rendered by the jury. See Comi v. State, 26 Md. App. 511, 520-521.

That notwithstanding, we would still see no error here. Appellant concedes by silence that there was sufficient evidence to sustain a manslaughter verdict, but argues that because the State did not affirmatively negate this self-defense testimony, he was entitled to what amounts to a judicially declared holding of self-defense as a matter of law. That is, of course, absurd. Gilbert v. State, 36 Md. App. 196. The factfinder may simply choose not to believe the facts as described in that, or any other, regard, Jacobs v. State, 6 Md. App. 238, 242, and the very fact that a large knife was used, causing the death of an unarmed man, raises in itself the issue of excessive force even if appellant’s account had been believed. “The law is clear that although a person may defend himself, even to the extent of taking life to repel the attack of an aggressor, it is equally well settled that he cannot use more force than is necessary.” Ware v. State, 3 Md. App. 62, 65.

Appellant further contends that he should have been permitted to introduce a series of photographs showing his facial deformities as a child (age 4) and their progressive improvement through treatment that terminated at age 14. He explains that:

“The admission of the photos was intended to further explain and describe to the Jury the treatment afforded the Defendant since 1959 by Dr. Bowdoin Davis, as set out in the two letters by the Doctor admitted into evidence and thus to explain the Defendant’s state of mind at the time of the occurrence.”

The admissibility of photographs is ordinarily within the sound discretion of the trial court. Bagley v. State, 232 Md. 86, 94. Moreover, the purported purpose of emphasizing to the jury appellant’s abnormal apprehension over injury to his face, was already accomplished through the testimony of appellant’s doctor, his mother and himself. The pictures were of borderline relevance at best, but, on the other side of the coin, were provocative of sympathy from a “this was your life” type of preview. Our review of the record and of the photographs does not indicate that the refusal to admit photographs 10 to 20 years old was “plainly arbitrary”, Corens v. State, 185 Md. 561, 570, nor even an abuse of discretion.

Finally, appellant asks:

“Was the Trial Court’s Refusal to Instruct the Jury that Good Character and Reputation of the Appellant in and of Itself May Be Sufficient to Greate a Reasonable Doubt of Guilt, Reversible Error?”

The answer is no.

Appellant excised from Hallengren v. State, 14 Md. App. 43, 49, one sentence of our multi-page analysis of Braxton v. State, 11 Md. App. 435, where we had reversed the trial court for not granting a similar requested instruction. That sentence pointed out that:

“We [had] noted [in Braxton] that evidence of good character is not merely collateral evidence, but may in itself raise such a doubt as to require the acquittal of the defendant.” (emphasis added).

Relying principally upon this authority, appellant complains to us, as he did to the trial judge, that there should have been included in the jury instruction on character testimony a charge:

“ . . . that the testimony showing good character and reputation of the Defendant may be sufficient to create such a reasonable doubt as to justify the acquittal of the Defendant regardless of any other evidence which has been presented.” (emphasis added).

Appellant’s complaint here and below was obviously not that the court hadn’t given any instruction on the character testimony, as was our concern in Braxton, but that it denied the specific request, i.e., that such testimony could justify acquittal “regardless of any other evidence which has been presented.” We think that express language is so strong as to be misleading even in a case where such a character instruction would be more factually appropriate than here, e.g., Braxton v. State, supra.

The character issue in Braxton became highly relevant because the defendant denied having committed the crime, relied on alibi evidence as his defense, offered testimony of his good character and correlatively contended that his previous good character supported both his credibility and the probability that he was innocent. Character testimony in such a case is directly tied into the accused’s only life support system — the believability of his defense that “it wasn’t me” — and might be sufficient to tip the balance of reasonable doubt in his favor.

Here, appellant does not deny having stabbed and killed the victim; he relies upon self-defense as a justification for doing so. Because of the subsidiary questions of the existence of imminent danger and the use of excessive force, the accused’s character becomes of diminished significance; nevertheless, it is relevant to the extent that his intent, as found by the jury to have existed in his perpetrating the act, is determinative of whether he committed any crime, and if so, its degree of severity.

As we pointed out in Braxton, appellant was clearly entitled to an instruction on the character testimony, but, as we also indicated in Braxton, certainly not the overstatement he requested. Our reversal in Braxton was predicated on the fact that no character charge was given, but should have been despite the fact that the requested one was technically erroneous. We even set forth that which we felt should have been granted.

“We think that Braxton, having requested an instruction with respect to the evidence of his good character, was entitled to an instruction that the evidence should be taken into consideration by the jury in connection with all the other evidence in the case and, in arriving at their verdict of guilt or innocence, given such weight under all the facts and circumstances of the case, including the credibility, as determined by the jury, of the witness testifying as to Braxton’s reputation, as it merits in the judgment of the jury.” Id. at 442.

Here, the judge, after rendering such general instructions as:

“You understand that you are the sole judges of the weight of the evidence and the credibility to be given to the witnesses. You may decide the questions involved on any evidence which your common sense tells you is trustworthy and reliable and on the other hand, you may reject any evidence which you consider improbable or unreliable. You are not bound to believe any witness though his testimony is uncontradicted. You may believe all, part, or none of the testimony of any witness.”,

more specifically addressed the substantial amount of evidence, both favorable and unfavorable to appellant, that had come in during the course of the trial.

“You have in evidence before you evidence of the prior conduct of both the Defendant and the deceased. You have evidence as to their conduct and reputation for peace and good order and you have evidence as to their conduct for truth and veracity. There is evidence that each was a calm person. On the other hand, there is evidence that each did some violence occasionally, or was not calm. There is evidence that the Defendant and the deceased were both persons of good truth and veracity; there is evidence on the other hand that each was not quite such a person of truth and veracity. You must weigh this evidence in your considerations and determine that amount of credibility which you determine the evidence presented to you should receive.”

We think the instruction fully covered that which was set forth as the standard in Braxton. To have added here that such testimony as showed good character and reputation alone might create such reasonable doubt as “to justify the acquittal of the Defendant, regardless of any other evidence which has been presented ”, (emphasis added), would have raised the character evidence to a position superior to any other evidence and, in effect, preempted the jury’s prerogative in weighing all the evidence together. We reject or recant any notion one reads by ellipsis into Braxton or Hallengren, that because a defendant has had an impeccable character and reputation in the past, that alone is sufficient to absolve him from guilt for future crimes of which he may be accused. This'is even more obvious in a case such as the one before us, where the accused admits both criminal agency and corpus delicti, but denies the mens rea required to convict. In Gooch v. State, 34 Md. App. 331, 337, while reversing the trial court for refusing to give a character instruction requested after the general charge, we looked at the self same single sentence as that appellant proposed for an instruction here, and

“[w]ithout ruling on its validity, we expressed] our doubts as to whether the excision of one sentence from a previously approved complete charge and its inclusion as a part of a general proposed instruction in a textbook is sufficient authority to require its acceptance as an appropriate advisory jury instruction.” (footnotes omitted).

We have now confirmed our doubts and unhesitatingly rule on its validity. As pointed out in Edgington v. United States, 164 U. S. 361, 367, evidence of good character:

“ ... is not proof of innocence, although it may be sufficient to raise a doubt of guilt.”

That is as far as we will go. We will not permit character evidence to be isolated and considered by a jury “regardless of any other evidence which has been presented”.

Judgment affirmed.

Costs to be paid by appellant.


author: Wilner, J.,

text:
    LEONARD COUPLIN v. STATE OF MARYLAND
    [No. 69,
    September Term, 1977.]

      Decided October 18, 1977.

      The cause was argued before Gilbert, C. J., and Menchine and Wilner, JJ.

      Robin John Pécora, Assigned Public Defender, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Prevas, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

After a two-day jury trial, the appellant was convicted in the Criminal Court of Baltimore of robbery with a deadly weapon and use of a handgun in the commission of a crime of violence. He received a fifteen-year sentence for the first of these offenses, and a five-year concurrent sentence for the second.

In this appeal, the appellant argues that five errors were committed by the trial court, namely:

(1) The court erred in denying his motion to strike three prospective jurors from the panel;

(2) The court erred in denying his motion for acquittal or, in the alternative, for a new trial, on the grounds of legally insufficient evidence of identity;

(3) The court erred in allowing the jury to hear evidence of his conviction for assault at age 16;

(4) The court erred in denying his motion for new trial on the grounds that the evidence was legally insufficient to sustain his conviction of use of a handgun in the commission of a crime of violence; and

(5) The court erred in instructing the jury with an “Allen-type” charge upon denying the jury’s second request for a reading from the transcript.

At oral argument, a sixth ground for reversal was added: that under the doctrine of “merger” announced by the Court of Appeals in Newton v. State, 280 Md. 260 (1977), the offenses of robbery with a deadly weapon and use of a handgun in the commission of a crime of violence “merged” in such way that his conviction of the robbery offense cannot stand.

The claims are without merit, and we therefore affirm the convictions.

I.

Denial of Motion to Strike Jurors

The essence of appellant’s complaint here is that the jury that convicted him was “police oriented”, and therefore not impartial, in contravention of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Articles 21 and 23 of the Maryland Declaration of Rights.

His complaint related to three of the prospective jurors: Juror No. 10 (Panel III) and Jurors Nos. 4 and 19 (Panel IV).

We first note that none of these three jurors actually sat on the jury, each having been stricken by appellant. The alleged error is that they should have been stricken from the panel by the court for cause, rather than requiring appellant to utilize his peremptory challenges to remove them.

Each of the three panel members responded in the affirmative to the question on voir dire as to whether any member of the panel was “friendly or associated with or related to anyone in the Baltimore City Police Department, the State’s Attorney’s Office or any other law enforcement ágency.” Upon further questioning, it appeared that Juror No. 4 had a daughter who worked for the Central Records Division of the Baltimore City Police Department; Juror No. 10 had worked as a librarian at the Maryland House of Correction for eleven years, but had retired from that job in 1965, eleven years earlier; and Juror No. 19 had a nephew serving on the City police force. Each of these persons stated, without equivocation, that these respective circumstances would not affect his or her ability to render a fair and impartial verdict based upon the evidence in the case; and, presumably for that reason, the court declined to strike them for cause.

Neither Juror No. 4’s daughter nor Juror No. 19’s nephew was a witness in the case.

The appellant’s claim here is fully answered by this Court’s holding in Borman v. State, 1 Md. App. 276 (1967), and Rodgers v. State, 4 Md. App. 407 (1968), cert. den. 252 Md. 732 (1969).

At issue in Borman was the refusal of the trial court to strike for cause three prospective jurors who were married to members of the police department and one prospective juror who was friendly with several police officers; and there, as here, the record was devoid of any facts, other than that relationship, from which bias could be inferred. The Court found no error, stating at 1 Md. App. 279:

“Neither mere acquaintance with an individual or group, nor mere relationship to witnesses, other than parties, is sufficient basis for challenging a prospective juror for cause. Goldstein v. State, 220 Md. 39 (1959). Bias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts, in addition to mere relationship or association, which would give rise to a showing of actual prejudice.”

This was reaffirmed in Rodgers, where the Court, citing Borman, stated simply that it found no error in the refusal of the trial court to disqualify a jury member because he was related to a police officer having no connection with the case.

In light of the remoteness of the challenged relationships on the part of the three jurors and their clear statements that those relationships would not affect their ability to render a fair and impartial verdict, we find no error in the trial court’s refusal to strike them for cause,

II.

Sufficiency of the Evidence as to Identity

Appellant’s second claim is that the evidence with respect to his identity ii.e., that he was the assailant) was legally insufficient to sustain his conviction.

Velda Day, the victim, was a student at Morgan State University. She also held a part-time job at an Arundel’s Ice Cream Parlor on Gay Street in Baltimore City.

Ms. Day testifed that on September 9, 1976, she had finished her last class at about 2:50 p.m. She went to the college library to get some books, and, about 3:10 p.m. was waiting for a friend to drive her home. Her friend was to meet her at 3:15 p.m.

At about 3:10 p.m., a man whom she knew as “Alfalfa” walked past, then came back and engaged Ms. Day in conversation. She told him that she was waiting for a ride home and then intended to go to work. Alfalfa offered her a ride, and, as she was “running late”, she accepted. The two of them walked to the parking lot where they waited for a friend of Alfalfa’s to bring the keys to the car. Two other men soon appeared with the keys, and all four got into a car, identified by Ms. Day as a beige 1967 or 1968 Volkswagen. She and Alfalfa were seated in the front, with Alfalfa driving, and the other two men were in the rear. One of these men, whom she identified in court as appellant, sat behind Alfalfa. Ms. Day stated that she had seen both of these men two or three times before in front of “Lee’s Cut Rate”, apparently a liquor store, located near where she worked.

When they reached Ms- Day’s home, appellant stuck a gun in her neck and said to her, “Give it up.” With that, he grabbed her pocketbook and began going through it, removing $58. He then took her sunglasses and removed two rings from her fingers — one a high school ring, the other a silver band with two pearls and two diamonds. She was then ordered out of the car. Ms. Day promptly reported the incident to the police.

The next evening, while Ms. Day was at work, a girl came into the store wearing Ms. Day’s sunglasses and pearl ring. She was with five or six men, all of whom, upon leaving, walked across the street. Ms. Day then noticed appellant across the street with them. She walked across the street to make certain that it was appellant, and stated that, “He saw me coming and ran in Lee’s and ran out the door.” Ms. Day pointed appellant out to her girlfriend, Sharon Adams.

Soon thereafter, Ms. Adams, who had walked up to a nearby pool room to look for her father, told Ms. Day that she had seen appellant in the pool room. At this point, the police were called, in response to which Officer Dunnigan soon appeared. He took Ms. Day and Ms. Adams to the pool hall where both of them identified appellant, who was then arrested.

Ms. Day stated that she saw appellant several times after his arrest — once at his preliminary hearing and a few times when he walked past the store where she worked. She made a positive identification of him in court, and even referred to him by name.

Appellant bases his second claim upon a series of alleged inconsistencies or contradictions in Ms. Day’s testimony which, he argues, makes her testimony unworthy of belief and inadequate to sustain his conviction. A careful review of the record, however, reveals that Ms. Day’s testimony was neither inconsistent nor contradictory, and was clearly sufficient, as to the identification of appellant, to justify the denial of his motion for acquittal. McIntyre v. State, 17 Md. App. 526, 535 (1973). The alleged inconsistencies and contradictions are mostly the product of appellant’s (or his counsel’s) failure to read the transcript fairly and accurately, rather than from any confusion on Ms. Day’s part. Accordingly, any reliance on the doctrine of Kucharczyk v. State, 235 Md. 334 (1964), would be misplaced. Bailey v. State, 16 Md. App. 83 (1972). For these reasons, we find also that the court did not abuse its discretion in denying appellant’s motion for a new trial.

III.

Conviction for Assault at Age 16

Appellant claims that the trial court erred in “allowing the Jury to hear alleged impeachment evidence of the appellant’s prior conviction as an adult in Baltimore City at age 16,” prior to the decision in Long v. Robinson, 436 F. 2d 1116 (1971).

The context in which this evidence was presented was as follows. The appellant testifed in his own defense. On cross examination, the following colloquy occurred:

“Q Mr. Couplin, have you ever been convicted before in the adult Criminal Court of a criminal offense when you had a lawyer with you or when you told the judge you didn’t need a lawyer?
A Not actually convicted. I pleaded guilty to a charge.
Q How many times did that take place?
A How many times?
Q Yes, sir.
A Once or twice. Twice.
Q What were the charges?
A One was manslaughter.
Q What was the other one?
A Other one was assault.
Q And when were they? Do you recall?
A The assault was when I was sixteen and the manslaughter was in ’71.
MR. SHAPIRO: Your Honor, I would object and ask to approach the bench.
THE COURT: All right.”

At the bench conference, defense counsel stated:

“We do have a problem here because if he was convicted of an assault when he was sixteen, of course he was not an adult and although the prosecutor asked the question properly, he got the wrong answer. I would ask at the appropriate time ■ for some sort of curative instruction to the jury. ” (emphasis supplied).

No motion to strike the appellant’s answer was made — only a request for a “curative instruction” at the appropriate time. The record shows that the court granted that request, for, in instructing the jury, the court stated:

“In this case the Defendant admitted previous convictions, one for manslaughter and one for assault when he was sixteen years of age. For the purposes of this case you are to disregard the assault conviction which occurred when he was sixteen years of age. You may only consider for purposes of this case his manslaughter conviction in determining, if you choose to do so, his credibility as a witness.”

There was no error here. The question asked was perfectly proper; there was no motion made to strike the arguably inappropriate answer; and the court adequately gave the cautionary instruction requested by appellant. It is presumed that the jury followed that instruction and disregarded the appellant’s allegedly erroneous and prejudicial statement. Wilson v. State, 261 Md. 551, 570 (1971). Even if it, in fact, did not, in light of all of the other evidence properly before the jury, including appellant’s prior conviction for manslaughter, the error, on the part of the jury, would have been harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638 (1976).

IV.

Sufficiency of the Evidence to Sustain Conviction of Handgun Offense

Appellant’s claim here is a “double-barrelled” one. Initially, he argued only that Ms. Day’s description of the gun used as having two barrels was sufficient to require an acquittal on the handgun charge, upon the assumption that a handgun cannot have two barrels.

The context of her testimony concerning the gun was as follows:

“Q When he snatched it from you, what, if anything, did he have in his hand?
A A gun.
Q When you say gun, can you describe what the gun looked like? Size, color, anything like that?
A It had two barrels. It was a handgun and that’s about it.”

Ms. Day was not examined, or cross-examined, further with respect to the gun. Additional evidence on this point was received from Officer Simmons, who responded to Ms. Day’s initial call to the police, and who stated that Ms. Day told him that her assailant was “armed with a small pistol.”

The fact of the matter is that handguns containing, or appearing to contain, two barrels do exist and, unfortunately, are sometimes wrongfully used; and thus, Ms. Day’s description of the gun used as being of that type may well have been accurate. That aside, however, she clearly stated that appellant had a gun in his hand, which she testified was a “handgun”, and which she described to Officer Simmons as being a “small pistol”. To the extent that the presumed uniqueness of a two-barrelled handgun might raise any doubts, it would, at best, go to the relative weight to be given to her testimony on that point — a matter for the trier of fact to determine. Ms. Day’s other testimony coupled with that of Officer Simmons was clearly sufficient to withstand a motion for new trial or for acquittal. See Miller v. State, 231 Md. 158, 161 (1963); Bell v. State, 5 Md. App. 276 (1968).

The second barrel of appellant’s claim is that, under the authority of Todd v. State, 28 Md. App. 127 (1975), Tisdale v. State, 30 Md. App. 334 (1976), and Howell v. State, 278 Md. 389 (1976), it was incumbent upon the State to prove that the gun used by appellant was, in fact, capable of firing a projectile by an explosive propellant. As such proof was not produced, appellant argues that there was insufficient evidence that the weapon was legally a “handgun” within the ambit of MD. ANN. CODE art. 27, § 36B (d).

The full impact of this rather intriguing argument becomes clear when one considers where it leads. What, in essence, appellant is saying is that, (1) in order to sustain a conviction under § 36B (d), the State must prove that a handgun was used; (2) in order to do that, the State must show that the weapon in question was capable of firing a projectile by virtue of gunpowder or similar explosive force; (3) where, as here, the gun was neither fired nor found, there can be, and was, no evidence of its “fireability” by such means; and (4) as a result, he (and others in like circumstances) cannot therefore be convicted under that section.

Appellant’s first premise is, of course, correct as a matter of law, and his third is probably correct as a matter of fact. His syllogism collapses, however, upon the weakness of his second premise, because the cases upon which it is based do not support it.

In Todd, Tisdale, and Howell, a weapon alleged to be that used in the commission of a felony or crime of violence was found and admitted into evidence; and the issue was whether that weapon was, in fact, a handgun. In Todd, evidence was offered that the weapon, which had the appearance of a .45 calibre pistol, fired a .22 calibre pellet through the explosive action of a carbon dioxide cartridge; and, based upon that evidence, it was declared by this Court to be a handgun. In Tisdale, the weapon was described as a .22 calibre gas pistol, but there was no evidence at all, except the weapon itself, as to what it was or how it worked. Thus, this Court stated that there was a gross insufficiency of evidence as to the nature of the weapon, requiring that the conviction be reversed. In Howell, the evidence established that the weapon was a teargas gun, which the Court of Appeals held was not a handgun because, from the evidence, it did not fire a missile propelled by gunpowder or a similar explosive.

It is one thing to say that, where the weapon alleged to be a handgun is produced and examined, and the evidence either shows that it was not a handgun or fails to demonstrate adequately that it was, there can be no conviction. It is quite another to extend the “sufficiency" theory to produce the same result when, despite credible testimony that the assailant used a weapon described as a handgun, a small pistol, the weapon was not subject to empirical examination because it was not recovered. There is no suggestion in any of the three cases, or in any other brought to our attention, that a conviction is unobtainable under this latter circumstance.

In Todd, this Court stated at 28 Md. App. 132 that, “[t]angible evidence in the form of the weapon used in an offense certainly is not an essential to proof of the use of a weapon.” A fortiori, such proof may rest upon extrinsic evidence as to the nature of the weapon. The statute, § 36B (d), does not require that the weapon actually be fired as ah element of the crime, and we do not believe that, in the absence of the weapon’s recovery, there is any requirement that it be fired simply to provide evidence of its “fireability.” When Ms. Day testified that the appellant stuck a handgun, which she described as a small pistol, in her neck, and there was no other evidence, except appellant’s alibi and general' denial, to contradict, must less controvert, that testimony, the State, in our judgment, produced sufficient evidence of the use of a handgun in the commission of a felony or crime of violence to have the issue considered by the jury and to sustain the verdict rendered by it.

V.

The “Allen-type"Charge

The jury retired to deliberate its verdict at 4:05 p.m. Two. hours later, the court received a note from the Forelady stating that the jury was unable to agree. The court brought the jury back and gave it a mild “Allen-type” charge, to which no objection was made below and no complaint is made here. Ninety minutes later, the Forelady sent another note requesting to hear “that portion of Miss Day’s testimony covering the trip from her place of work to the bar, pool hall, the rest and her identification of the suspect.”

The court brought the jury back a second time and stated to it:

“Well now, you have all heard the evidence. You have to rely, as I told you previously, on your own recollection of the evidence and you will have to make a determination based on what you have heard. Now, in view of the Court’s response to this question, I suggest you go back to the Jury Room and determine if you have made any progress since you have last reported to the Court and whether there is an expectation of your reaching a verdict. I do hope you are able to reach a verdict, but you have to report that to me. All right. So, go back to the Jury Room.”

It is these remarks about which the appellant complains. However, as he raised no objection to them below, and, as we find no “plain error” in them material to appellant’s rights, we have no occasion otherwise to consider this complaint. Maryland Rule 756 g.

VI.

Merger — Double Jeopardy.

Appellant’s final argument, equally without merit, is that, under Newton v. State, 280 Md. 260 (1977), the offenses of robbery with a deadly weapon and use of a handgun in the commission of a felony or crime of violence somehow merge in such manner as to vitiate the conviction for robbery with a deadly weapon.

Prior to Newton, this Court had considered essentially the same argument of merger based on double jeopardy in Bremer v. State, 18 Md. App. 291 (1973), cert. den. 415 U. S. 930 (1974), except that there the claim was the handgun offense merged into the crime of violence rather than the other way round. We rejected that contention, stating at page 344:

“The legislative intent is pellucid. A person using a handgun as proscribed ‘shall be guilty of a separate misdemeanor’ and upon conviction, ‘shall, in addition to any other sentence imposed by virtue of the commission of said felony or misdemeanor,’ receive a separate sentence of no less than the minimum of five years. The statute patently precludes the application of the doctrine of merger. We so hold.”

This holding was reaffirmed in Cates v. State, 21 Md. App. 363 (1974).

A year later, in Ford v. State, 274 Md. 546 (1975), the Court of Appeals, in holding that a conviction under § 36B (d) may stand in face of an acquittal of the crime of violence upon which it is based, stated, at page 551:

“[W]hen the trier of fact considers an indictment containing both a section 36B (d) handgun count and a felony or crime of violence count, a conviction on the former can still be sustained even if the trier of fact returns a finding of not guilty on the latter — in fact a finding of guilty under both, since they are not inconsistent, can each stand. A logical corollary then of each of these statements is that when section 36B (d) dictates that any person who is guilty of the handgun offense shall be sentenced ‘in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor,’ it directs that irrespective of the number of years, if any, the defendant receives for the ‘said felony or misdemeanor,’ the court must impose a penalty, within the limitations for confinement contained in the statute, for the independent handgun offense.”

These cases aside, the fallacy of appellant’s claim is apparent from the Newton case itself. There, Mr. Newton had been convicted of “felony murder” — murder in the course of the perpetration of an attempted robbery — as well as the attempted robbery forming the basis of the felony murder. In addition, he was convicted on two counts of using a handgun in the commission of a crime of violence, one crime of violence being the felony murder, the other being the attempted robbery.

The Court held that, under double jeopardy principles, the attempted robbery merged with the felony murder and therefore the conviction of the lesser offense was vacated. Without mentioning its prior decision in Ford v. State, 274 Md. 546 (1975), the Court then stated that, with the nullification of the attempted robbery conviction, there was only one crime of violence, and thus voided the handgun conviction based upon the attempted robbery. Significantly, however, it left standing the handgun conviction based upon the felony murder, thereby making implicit, if not explicit, its positive affirmance of its statement in Ford that the handgun offense does not merge with the crime of violence upon which it is based.

This result is hardly the product of inadvertence, but is entirely consistent with the underlying principle laid down in Newton. The Court stated, at 280 Md. 268:

“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.”

Applying this test to the two offenses involved here, it is clear that each requires proof of a fact or circumstance that the other does not, thus precluding a merger. Robbery with a deadly weapon, as its name implies, requires proof of both a robbery and the use of a deadly weapon in its perpetration. The deadly weapon need not, however, be a handgun. A conviction under § 36B (d), on the other hand, requires proof that a handgun was used, which the other does not, as well as proof that it was used in the commission of a felony or crime of violence. But, to support a conviction under the handgun law, it is not necessary to prove that a robbery was committed. Any felony or crime of violence will suffice.

Appellant’s argument might have some semblance of validity under what the Court of Appeals termed the “actual evidence” test; i.é., whether the evidence actually produced at trial on both offenses is substantially the same. However, the Court specifically rejected that test in Newton in favor of the “required evidence” test quoted above; and in terms of what is “required”, as opposed to what is actually produced, we find that one offense requires proof of a robbery, which the second does not, and the second requires proof that a handgun was used, which the first does not. Each, therefore, requires proof of a specific fact that the other does not; and under both the “test” and the actual holding in Newton, the two offenses do not merge.

Judgments affirmed.

Costs to be paid by appellant.

      . Appellant contends that Juror No. 10’s response was equivocal in that he said that he didn’t “think” his past employment would affect his ability to render a fair and impartial verdict. Appellant neglects to mention, however, that, upon further questioning by the court, this juror stated quite clearly and unequivocally that his past employment “will not” affect that ability.

      . Perhaps the best example of a “small pistol” containing two barrels is the derringer, of which at least two models, both .22 calibre, are illustrated in an informative publication known as GUNS ILLUSTRATED 1976, 8th Ed., pp. 132, 144. There is also the Ruger New Model 357/9MM Blackhawk and Convertible Blackhawk, a somewhat more authoritative pistol appearing to contain two barrels, which one may view on page 331 of the GUN DIGEST, 1974 Deluxe Edition, Library of Congress Catalog No. 44-32588.

      . This conclusion has since been overruled by this Court as the result of Hoirell. See Douglas v. State, 37 Md. App. 557.

      . The Court did not discuss in its Opinion whether the clear language in § 36B (d) that a violation of that section was a “separate misdemeanor” would itself preclude a merger under the common law doctrine of merger, as distinct from a “Constitutional” merger arising from double jeopardy principles. For purposes of this case, we presume the “double jeopardy” test to be controlling in any event, and therefore need not address that question.