author: Moore, J.,

text:
    EUGENE MICHAEL COLEMAN v. STATE OF MARYLAND
    [No. 325,
    September Term, 1976.]

      Decided March 10, 1977.

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

      Luther C. West, Assigned Public Defender, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Henry E. Dugan, Jr., Assistant Attorney General, William A Swisher, State's Attorney for Baltimore City, and Wayne Cymek, Assistant State's Attorney for Baltimore City, on the brief, for appellee,
   Moore, J.,

Convicted of rape, perverted practice and larceny, at a jury trial in the Criminal Court of Baltimore (Arabian, J., presiding), appellant, Eugene Michael Coleman, was sentenced to twenty years imprisonment for rape and ten years and eighteen months, respectively, (to be served concurrently with the rape sentence) for the perverted practice and larceny convictions. On appeal, he takes issue with certain of the trial court’s rulings on the admissibility of testimony. Finding no error, we affirm.

I

Rose Weaver, the prosecutrix, met the appellant in a local Baltimore bar at approximately 10:30 on the evening of September 24, 1975. Agreeing to accompany the appellant for a pizza, the two ended up in Coleman’s apartment. They remained there only a short time before walking down the hall to the apartment of a neighbor, Gloria McCue, because appellant wanted to introduce them. The three then returned to appellant’s apartment.

According to Mrs. Weaver’s testimony, her casual visit turned quickly into a nightmare. She became trapped inside appellant’s apartment by a lock to which only the appellant had the key and appellant began to rip her clothes off, pour beer over her and assault her with his hands, shoes and a coffee table. Despite her cries, protests and physical retaliation against him, the appellant continued to abuse her physically until she finally submitted to sexual intercourse and to performing fellatio. Also, the victim stated at trial, the appellant at one point emptied the contents of her purse, which she testified held approximately $12 in change and a diamond engagement ring, and stated, “Boy, I’m really going to clean up tonight. Look at all the money I got.”

After her forced submission, the appellant permitted her to leave and apparently gave her cab fare. Ms. McCue gave her a dress to wear. Mrs. Weaver admitted originally lying to the police when she first reported the incident. She told them that appellant had kidnapped her off the street. At trial, she explained this by declaring she was too embarrassed to admit that she voluntarily accompanied the appellant to his apartment.

Gloria McCue was present in appellant’s apartment and substantially confirmed the events of the evening, at trial. She testified that she tried to comfort the prosecutrix and offered herself to appellant, but the latter declined, stating that he could have her anytime and that, “He wanted something different.”

The State’s medical expert and the investigating police officer both testified at trial that they observed bruises and abrasions on the victim’s body consistent with a physical assault.

Appellant’s sole, witness, Clifton Harris, whom the appellant had met while in jail several weeks prior to trial, testified that he knew Rose Weaver for several years and that she had a bad reputation in the community for chastity.

II

On direct examination, the State’s Attorney elicited, over objection, the following testimony from appellant’s wife concerning a conversation with him when he telephoned her at work from jail, one or two days after the alleged crimes:

“Q Okay, and what was the conversation that you had with your husband at that time?
MR. DWIN: Objection.
THE COURT: Overruled.
THE WITNESS: Answer?
Q (BY MR. CYMEK): Yes, you can.
A He had asked me — I was at work and he had asked me to go up to his apartment and to get the ring that he took from the girl because he was afraid Gloria was going to turn it over to the police because she gave them a statement.”

Appellant contends that this telephone conversation constituted a confidential communication between husband and wife and was therefore improperly received at trial in contravention of Cts. & Jud. Proc. § 9-105 (Md. Code, 1974). Section 9-105 provides:

"Testimony by spouses Confidential communications occurring during marriage.
One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.”

The statutory provision preventing one spouse from disclosing a confidential communication made by the other spouse, is to be distinguished from the right of a spouse not to be compelled to testify as an adverse witness in a criminal proceeding in which the other spouse is the accused (unless the charge involves the abuse of a child under 18). Cts. & Jud. Proc. § 9-106. At trial, Mrs. Coleman expressly declared her willingness to testify against her husband. For the reasons stated below, we hold that § 9-105 did not bar Mrs. Coleman’s testimony with reference to appellant’s telephone call.

The privilege of an accused to prevent his or her spouse from testifying as an adverse witness as to a confidential communication made during marriage is designed to promote and encourage the unrestrained flow of private communications between spouses, free from any fear of disclosure, in order to preserve and protect the integrity of the marital relationship. McCormick, Handbook of the Law of Evidence § 86 (2d ed., 1972); Wolfle v. United States, 291 U. S. 7, 14 (1934). The public policy evidenced by the privilege outweighs the disadvantages to the administration of justice such a privilege entails. 8 J. Wigmore, Evidence § 2332 (McNaughton, rev. 1961).

However, the privilege is not absolute. It applies only to those communications which are in fact confidential and which are induced by the marital relationship. 3 S. Gard, Jones on Evidence § 21:5 (6th ed. 1972); McCormick, supra, § 80; Wolfle v. United States, supra, 291 U. S. at 14. Thus, the privilege does not apply where a communication is made in the presence of a third person, Metz v. State, 9 Md. App. 15, 262 A. 2d 331 (1970); or where a communication intended for one spouse by the other is transmitted through a third person, Gutridge v. State, 236 Md. 514, 204 A. 2d 557 (1964); or where a communication, because of its nature or the circumstances under which it was made, is obviously not intended to be confidential, see, e.g., Wolfle v. United States, supra, 291 U. S. at 14; People v. Burton, 286 N.E.2d 792 (Ill. 1972); People v. Dudley, 301 N.Y.S.2d 9 (1969).

In the instant appeal, the threshold question is whether or not the communication was confidential. The issue must, of course, be resolved in the context of the facts and circumstances disclosed by the record. These include:

1) The alleged victim, Rose Weaver, had taken the stand, prior to the wife, and had described the contents of her purse which appellant had thrown on the floor of the living room and had taken. The description of the property included a diamond engagement ring.
2) Appellant’s neighbor, Gloria McCue, to whom appellant referred in his call to the wife from jail, had also testified that the “stuff” in Rose’s pocketbook was “all over the floor” as a result of appellant’s having emptied its contents, and that at appellant’s bidding she took the ring and put it in a cabinet.
3) The alleged victim had given a statement to a police officer who testified later in the trial. This statement was taken within a few hours of the alleged crime and included a detailed description of the engagement ring which appellant had taken from her.
4) The wife further testified that she went to McCue’s apartment and obtained the ring; and that subsequently a police officer came to her home and she gave it to him.

It is patent therefore that the husband’s communication here did not involve the disclosure of a fact or facts not already known to others. The taking of the ring by the appellant was known to Gloria McCue, to the victim and, it appears, to the police before appellant ever communicated by telephone with his wife. Furthermore, because appellant and his wife were not living together, the husband knew that the wife’s only means of access to his apartment to retrieve the ring was through a third party, Gloria McCue, who had hidden the ring at appellant’s bidding. Under these circumstances, we think it is beyond doubt that the wife was competent to disclose, as she did, the telephone conversation with the appellant. There was no confidentiality in appellant’s telephone call. Where the communicating spouse has knowledge that his or her communication will be disclosed to third persons, the communication is no longer privileged. See Wolfle v. United States, supra; Grulkey v. United States, 394 F. 2d 244 (8th Cir. 1968); Metz v. State, supra.

In addition, we are constrained to question whether, at all events, the privilege from disclosure should obtain in circumstances where, as here, (a) the marriage, as a practical matter, had ended and (b) the invocation of the privilege would protect communications relating to acts of a criminal nature to be performed in furtherance of a crime.

As for the “marriage,” the testimony of the wife disclosed that she and appellant had lived together without benefit of matrimony for about seven years, that a child, five years of age at the time of trial, had been born of their relationship, that they entered into a marriage ceremony a few months before appellant’s arrest for the sole reason that he was about to enter the Army and could obtain an allotment for the child as a dependent. They never lived together after the ceremony and, at the time of trial, the wife had commenced divorce proceedings. In these circumstances, the statutory policy would scarcely be subserved by the suppression of a confidential communication, even if such were involved. See 8 J. Wigmore, Evidence, supra, at § 2335; McEntire v. McEntire, 140 N. E. 328 (Ohio 1923); McNamara v. McNamara, 154 N. W. 858 (Neb. 1915). Contra, People v. Fields, 328 N.Y.S.2d 542 (App. Div. 1972).

With respect to the nature of the communication, it is at once apparent that appellant was seeking the concealment — through the agency of his wife — of the fruits of crime, i.e., the diamond ring. While the Court of Appeals of Maryland and this Court have not had occasion to rule on the applicability of the privilege under such circumstances (see Gutridge v. State, supra, where former Chief Judge Henderson expressly left open the issue of “an exception to the privilege” in this type of situation, 236 Md. at 517, 204 A. 2d at 559), there is persuasive authority against its application.

In support of an exception to the privilege insulating marital confidences from disclosure where the communication is. made in furtherance of a crime, Dean McCormick writes:

‘•The acts thus protected are frequently acts done in furtherance of a crime or fraud, and thus under the principle developed for the cognate privilege for attorney-client communications, should not be protected from disclosure even by direct communication. . .. The attitude of the courts in these cases seems in effect a reaching back toward the old common law principle of preserving family harmony by disqualifying a spouse from testifying for or against the other. A different attitude it is believed would be wiser, namely, that of accepting the view that all privileges, in general, and this privilege for marital confidences in particular, are inept and clumsy devices to promote the policies they profess to serve, but are extremely effective as stumbling blocks to obstruct the attainment of justice. Accordingly the movement should be toward restriction, and not toward expansion, of these mechanisms for concealment of relevant facts.” (Emphasis added and footnote omitted.) McCormick, supra, at 164-165.

It is the recognition of society’s significant interest in preventing criminal activity which justifies the exception. As stated by the Illinois Appellate Court in People v. Simpson, 350 N.E.2d 517, 524 (1976), “A loyal spouse should not, in our view, become a partner in crime with the blessing of the law bestowed through a construction of the statute which is said to be supported by a policy of promoting marital bliss.” See West’s Calif. Ann. Evid. Code, Art. 5, § 981 (1966); Fraser v. United States, 145 F. 2d 139, 143 (6th Cir. 1944); People v. Santos, 102 Cal. Rptr. 678, 681 (Ct. of App. 1972).

In the present case, it is clear that appellant’s message to his wife to “get the ring” in order to prevent Ms. McCue from turning it over to the police was a communication made in furtherance of a crime and which, if heeded, would have itself constituted criminal conduct subjecting the wife to prosecution as an accessory after the fact. See McClain v. State, 10 Md. App. 106, 268 A. 2d 572 (1970); Watson v. State, 208 Md. 210, 117 A. 2d 549 (1955). Therefore, even if the communication had been “confidential,” Ms. Coleman’s testimony would, in our judgment, have been properly received.

Ill

On direct examination, the State’s Attorney was permitted, over objection, to elicit the following testimony from appellant's wife:

“Q (BY MR. CYMEK): What did you - What happened when you went to 2225 Fayette Street?
A I went upstairs and I knocked on Gloria’s door. She was sleeping on the sofa. She woke up, half awake. She let me in, and I asked her — I said, ‘What happened with Mike,’ and she started telling me all about, you know, the trouble they had up there.
Q What at that time did she tell you?
A She said that Mike was out drinking and he came in with some girl and he had a hold of her arm and he knocked on her door and said to her, T want you to come over and fix me something to eat.’ So she went over and she was fixing — I don’t know. I think she said a hamburger. I’m not sure about that, and she said next thing she knew they started arguing. Mike started going after this girl and he had poured beer on her head and started just fighting with her, falling all over the house, and he hit her several times, I understand.
Q Okay, and did she tell you anything else at that time?
A Yeah, she told me that he had forced this girl to have sex with him and I said, ‘What were you doing there, Gloria, standing there watching? Why didn’t you give some help to her? ’ She said, T didn’t want to leave. I was afraid he was going to kill her.’
MR. DWIN: Objection. Move it be stricken, Your Honor.
MR. CYMEK: Your Honor?
MR. DWIN: Wait a minute. Let her rule.
THE COURT: Overruled.
Q (BY MR. CYMEK): Continue.
A So I told her — I says, ‘Why didn’t you go get her some help? ’ She said he had the door padlocked from the inside. I said he would have let her out. She said she was afraid he’d kill the girl if she left, and she was afraid for the girl’s life, and she had asked somebody to stay with her. She was afraid. Then she told me the whole time he beat this girl he kept calling her Pat, and he said, ‘Your blond hair is your downfall’, and then he says to Gloria — He says, ‘Do you remember what I told you about that girl I had up here and I tied to the bed and I beat her with a belt? You remember me saying that’ ?
MR. DWIN: Your Honor, I move it be stricken and ask the jury be admonished about this.
THE COURT: Sustained. That will be stricken, those last — .”

Appellant contends that this testimony was hearsay and if it constituted impeachment of the court’s witness, Gloria McCue, by prior inconsistent statement, an improper foundation was laid.

Mrs. Coleman’s recounting of her conversation with Gloria McCue at trial was clearly hearsay. See Johnson v. State, 23 Md. App. 131, 136, 326 A. 2d 38, 41-42 (1974), aff'd, 275 Md. 291, 339 A. 2d 289 (1975). However, the court below permitted this testimony as impeachment of Ms. McCue’s previous testimony by prior inconsistent statement. On cross-examination, Ms. McCue was interrogated as follows:

“Q Isn’t it a fact that during the time that you were in that apartment you pleaded with him to let her go?
A Yeah, I had talked to him;
Q That you feared for her life?
A I didn’t say that.
Q Okay. Isn’t it a fact you stayed in that • apartment so you could protect Mrs. Weaver?
A When she was on the couch, she was asking me not to go because Mike had said I could leave if I wanted to, and she asked me not to. So I stayed.”

The rule is clear in Maryland that when a party seeks to impeach a witness by use of prior inconsistent statements, the party must first lay a proper foundation by affording the witness an opportunity to admit, deny or explain the alleged inconsistent statement. White v. State, 23 Md. App. 151, 326 A. 2d 219 (1974); Devan v. State, 17 Md. App. 182, 300 A. 2d 705 (1973); Sellman v. State, 232 Md. 344, 192 A. 2d 788 (1963). Generally, a proper foundation requires informing the witness as to the content of the statement and the time, place, and circumstances under which said statement was made. White v. State, supra, 23 Md. App. at 162, 326 A. 2d at 225; Britton v. State, 10 Md. App. 70, 267 A. 2d 747 (1970).

Following the State’s cross-examination of Ms. McCue on the issue of whether she remained in the appellant’s apartment, after he had given his permission for her to leave, out of fear for Mrs. Weaver’s life, the State inquired of the witness, “Did you ever have conversations with Pat, Mike’s wife? ” The court sustained an objection to this question. In response to the State’s proffer, at the bench, as to the relevance of this line of questioning for purposes of impeachment by prior inconsistent statement, the trial judge stated, “Well, I have ruled on this question. I see no relevance whatsoever unless you get into did she [Ms. McCue] ever make a statement to so and so that would be contradictory.” The State contends on appeal that the trial judge’s ruling precluded the State from laying the proper foundation on which the subsequent testimony of Mrs. Coleman, above quoted, would constitute prior inconsistent statements.

From our review of the record, we are unable to determine whether the State was in fact precluded by the defense from laying the proper foundation. However, assuming that the State failed to do so, we find that any error in permitting the testimony of appellant’s wife as to her conversation with Ms. McCue was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976). Mrs. Coleman’s testimony as to what Ms. McCue told her about the appellant’s conduct on the evening in question was merely cumulative of what Ms. McCue herself testified to on cross-examination. The only significant deviation was the question of what motivated Ms. McCue to remain in the appellant’s apartment during the attack on Mrs. Weaver, i.e., whether she remained out of fear for Mrs. Weaver’s life or whether she stayed because Mrs. Weaver asked her to. Whether or not Ms. McCue feared for the victim’s life is irrelevant to the rape, perverted practice and larceny charges of which appellant was convicted. Clearly, this testimony was not prejudicial since it was neither material nor relevant. See Johnson v. State, supra.

IV

Appellant lumps together his previous two contentions and asserts that these errors constituted a denial of due process.

Appellant also contends that he was denied his right to a fair trial by the trial court’s ruling precluding the appellant from questioning Mrs. Weaver as to what she thought was going to happen when she voluntarily accompanied the appellant to his apartment. The scope of cross-examination generally rests in the sound discretion of the trial court. William v. State, 15 Md. App. 320, 290 A. 2d 542 (1972); Jenkins v. State, 14 Md. App. 1, 285 A. 2d 667 (1971). We find no abuse of discretion and we note, at all events, that Mrs. Weaver substantially responded to this question in her answers to several other of appellant’s questions.

Appellant further asserts a denial of a fair trial resulted from the lower court’s ruling precluding the appellant from asking Ms. McCue whether she observed Mrs. Weaver attempt to leave the bedroom while the appellant forced her to submit to sexual relations. We perceive no error in the court’s ruling. The testimony of the victim and Ms. McCue clearly demonstrated that Mrs. Weaver was forced to submit by physical abuse.

Finally, appellant contends that an extended hearing out of the presence of the jury, on the issue of the competency of appellant's sole witness, Clifton Harris, to testify as to Mrs. Weaver’s reputation in her community, was improper. This contention is palpably without merit since Mr. Harris was subsequently permitted to testify before the jury concerning the victim’s reputation.

Appellant’s reliance on Chambers v. Mississippi, 410 U. S. 284 (1973) in asserting the above claims of error, is plainly misplaced.

Judgments affirmed; costs to be paid by the appellant.

      . As the_ Revisor’s Note discloses, this section is new language derived from a portion of Art. 35, § § 1 and 4. “The present statute uses the word ‘competent’ and is silent as to waiver by either spouse in a civil proceeding.”

      . As noted infra, McCormick points out that the “cognate" attorney-client privilege does not extend to communications between attorney and client where the client’s purpose is “the furtherance of a future intended crime or fraud.” McCormick, supra, at 395.

      . “§ 981. EXCEPTION: CRIME or fraud.
      There is no privilege [for confidential marital communications) under this article if the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud."

      . Although not raised in appellant’s brief, we note that the trial judge failed to instruct the jury as to the limited use of the testimony admitted for impeachment purposes. Generally, the use of prior inconsistent statements is restricted to impeachment, and may not be received for any substantive or independent testimonial value. Patterson v. State, 275 Md. 563, 572-73, 342 A. 2d 660, 665 (1975). Appellant’s failure to object or to request such instruction precludes our consideration of any such error. Md. Rule 1085; see Wilson v. State, 20 Md. App. 318, 327, 315 A. 2d 788, 793 (1974).

      . Both sides were permitted to cross-examine Ms. McCue who was called, at their request, as a witness of the court.


source: Caselaw Access Project

author: Davidson, J.,

license: Public Domain

text:
    E. DAVID SILVERBERG, etc. v. STATE OF MARYLAND, CENTRAL COLLECTION UNIT
    [No. 364,
    September Term, 1976.]

      Decided March 10, 1977.

    The cause was argued before Thompson, Davidson and Mason, JJ.

      John S. Wood for appellaiV.
    Submitted on brief by Francis B. Burch, Attorney General, and Edward R. Jeunette, Assistant Attorney General, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 23 December 1975, in the Superior Court of Baltimore City, the appellee, State of Maryland Central Collection Unit, filed a declaration seeking to recover money allegedly due and owing from the appellant, E. David Silverberg, sub-committee for John Booze. A motion for summary judgment, a supporting affidavit apd a notice to plead were attached. On 16 January 1976, the appellant filed a motion ne recipiatur alleging that the affidavit did not affirmatively show that the affiant was competent to testify or that the affidavit was made upon personal knowledge of the affiant. On 15 March 1976, the trial court permitted the appellee to amend its affidavit, and denied the appellant’s motion. On 16 March 1976, a final judgment was entered in favor of the appellee.

Here, the appellant contends that the trial court erred in granting the appellee’s motion for summary judgment before the time for filing his responsive pleading had elapsed. We agree.

The Maryland Rules have the force of law. Maryland Rule 309 a provides:

“Where a motion ... requiring a ruling by the court ... is filed, the time for pleading, including ... an answer to a motion for summary judgment or affidavit in support thereof, shall be enlarged, without special order, to fifteen days after ... disposition by the court of such motion, demurrer or exception.” (Emphasis added.)

Under this rule, the appellant was entitled to 15 days from the date upon which the court denied his motion ne recipiatur within which to file an answer to the appellee’s motion for summary judgment. The trial court erred in entering a judgment on the motion for summary judgment before that time had elapsed.

Judgment reversed.

Case remanded for further proceedings in accordance with this opinion.

Costs to be paid by the appellee.

      . Maryland Rule 610 b.

      . Hauver v. Dorsey, 228 Md. 499, 502, 180 A. 2d 475, 476 (1962); Main v. Lynch, 54 Md. 658, 668 (1880); Moaney v. State, 28 Md. App. 408, 414 n.4, 846 A. 2d 466, 471 n.4 (1975).

      . Related rules must be read together. DuPont, Glore, Porgan, Inc. v. Barshack, 271 Md. 316, 319, 316 A. 2d 527, 528 (1974); Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 19-20, 174 A. 2d 768, 774 (1961). See Md. Rule 610 a 1, 2; Md. Rule 610 c 1, 3; Md. Rule 307 a 1; Md. Rule 309 a.

      . See DuPont, supra, 271 Md. at 318-19, 316 A. 2d at 528-29.


author: Morton, J.,

text:
    JAMES ALVIN CARTER v. STATE OF MARYLAND
    [No. 481,
    September Term, 1976.]

      Decided March 10, 1977.

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

      S. Allan Adelman, Assigned Public Defender, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Thomas L. Heeney, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellant, James A. Carter, was convicted by a jury in the Circuit Court for Montgomery County (Shure, C. J., presiding) on three counts of receiving and retaining a credit card, which he knew was delivered under mistake, with the intent to use it or transfer it to a person other than the issuer or cardholder. The indictments charged that the offenses occurred between August 1, 1974, and October 27, 1974. He was sentenced to three consecutive terms of one year each with the direction that after 18 months had been served he was to be placed on probation for the remaining 18 months.

In September, 1973, Texaco mailed five duplicate credit cards to a business known as American Technical Services. The cards were mistakenly delivered to American Technical Services’ old address, 4925 Bethesda Avenue, in Montgomery County which was then occupied by appellant. The cards, all mailed in the same envelope, had the same Texaco account number, but each had its own sub-account number.

The State charged appellant with having distributed several of the cards to his employees to use for business related purposes and with having retained the remaining cards for future use, all in contravention of Md. Code, art. 27, § 142A (c) (2). Although appellant received five cards, the State charged appellant only with three criminal violations. The indictments did not specify the manner in which the cards were used, but rather employed general language that they were used in violation of § 142A (c) (2).

William Brooks, a former employee and alleged accomplice of appellant, testified pursuant to a dismissal of all charges against him. While working for appellant from July, 1974, until December, 1974, he stated that Carter showed him a Texaco credit card in July and gave him one in September to use for purchases made in connection with appellant’s business. Brooks not only used the card for business related purposes, but he also utilized it extensively for personal purposes.

Faith McCloud, a friend of Brooks, testified that she was present when appellant gave what appeared to be either a Mobil or Texaco credit) card to Brooks.) She stated,that the transfer occurred in either late July or during the first several weeks of August, 1974.

Lt. Mason W. Gray of the Montgomery County Department of Police testified that he recovered the credit card from Brooks in February, 1975. At that time Brooks told him that he had received his card around August 1, and that the only person present pther than appellant and himself was a boy named John Kelley. He said nothing about McCloud being there.

Richard Tanner, a service attendant at Westwood Texaco in Bethesda, Maryland, stated that Brooks used one of the subject credit cards to purchase gasoline on October 23,1974.

The State attempted to prove that appellant had given one of the other cards to another employee, Irving Mayer, from whom a card was eventually recovered. Wanda Wendrock, a customer service representative for Texaco, testified that on September 10 or 11, 1974, she telephoned appellant’s place of business and spoke to an individual who identified himself as Jim Carter. The purpose of the call was to discuss improper charges on the subject credit card account which had been made by Mayer. The person to whom she spoke indicated that Mayer was a former employee of his and that he knew that Mayer had the card. This card was used in June, July and August, 1974, partially for appellant’s business. Ms. Wendrock stated that the individual to whom she spoke stated that he did not know how Mayer obtained the card but that he would pay any charges incurred by Mayer.

A special investigator for Texaco, James G. Kohler, testified that he had a conversation with Carter on October 4, 1974, at which time appellant admitted having received the credit cards. Kohler stated that appellant informed him that a secretary had given the cards to his former employees, Brooks and Mayer. Carter stated'that he did not know the whereabouts of the remaining cards.

Barry Lee testified that he sublet portions of appellant’s business premises in the summer and fall of 1974. Lee stated that Carter showed him at least three, perhaps four or five, of the subject credit cards and then put them in his wallet. Although unable to recall when this incident occurred, Lee testified that he was able to discern that the cards were made out to American Technical Services. Furthermore, appellant told Lee that “[i]f an emergency ever came up * * * where he had to leave town or something, whatever, he would have gas or whatever he needed.”

Appellant surrendered two cards to Lt. Gray on February 23, 1975, after being requested to search his car for them. Lt. Gray testified that he was acting upon information received from Brooks. Appellant, who professed ignorance that the cards were in his car, maintained that Brooks no doubt planted them there.

Appellant first contends that since all five credit cards were received at one time, in one envelope and were all issued on the same account, he was unlawfully convicted and sentenced on three separate counts for but one offense. Appellant relies in main on Bell v. United States, 349 U. S. 81 (1955) wherein the Supreme Court concluded that the act of simultaneously transporting two women across State lines in violation of the Mann Act involves but one offense.

The decision in Bell, however, was predicated upon the specific language employed in the Mann Act, which reads:

“Whoever knowingly transports in interstate or foreign commerce * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose. * * *
“Shall be fined not more than $5,000 or imprisoned not more than five years or both.”

The Supreme Court simply concluded that the act of transporting (not the number of individuals being transported) was the corpus delicti of the proscribed act. The Court noted that “Congress could no doubt make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so?” and the Court found that under the statute, Congress did not. Bell v. United States, supra, at 82-83.

The statute under which appellant was convicted here, art. 27, § 142A (c) (2), reads as follows:

“A person who receives a credit card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder is guilty of a credit card theft and is subject to the penalties set forth in'(h) (1) of this section.”

We think the Maryland General Assembly intended that the unlawful receipt of more than one credit card, although the cards are received at the same time and carry an identical number, could subject the recipient to prosecution on each card. Here it was demonstrated that appellant unlawfully used at least three of the cards. It is well settled that one transaction may give rise to more than one criminal charge, Price v. State, 261 Md. 573 (1971), and we see no reason under our reading of the statute why appellant may not be separately convicted for the misuse of each of the three cards.

Appellant next contends that the evidence was insufficient to support the convictions; specifically, that the State failed to prove that any of the offenses occurred within the period, August 1, 1974, to October 27, 1974, enumerated in the indictment. While ordinarily the State is not confined to the time stated in the indictment, Tucker v. State, 5 Md. App. 32 (1968), we observe an exception to this rule when the date in the indictment misleads the defendant because of multiple charges, Burkett v. State, 5 Md. App. 211 (1968), cert. denied, 252 Md. 730 (1969). We are not compelled, however, to decide whether the above exception should be applied to the present situation since we conclude, simply, that there was sufficient evidence to support convictions for three of the credit cards within the period stated in the indictment.

Brooks testified that appellant gave him a credit card in September, 1974. There was testimony that Brooks used this card, on appellant’s instructions, for business related purposes. While McCloud’s testimony was somewhat uncertain, she did state that the transfer of the card occurred after August 1, 1974. Although there was testimony that McCloud was not present when appellant gave Brooks the card, thus contradicting her testimony, we take cognizance of the fact that “the weight of the evidence and the credibility of the witnesses are matters for the trier of facts.” Williams and McClelland v. State, 5 Md. App. 450, 458 (1968). Furthermore, the testimony of Lt. Gray and Richard Tanner evidences appellant’s guilt with regard to this card. Since “the test applicable to jury cases * * * [is that] the judgment will be affirmed if there is any relevant evidence before the jury to sustain a conviction * * Id., we conclude that there was more than ample evidence to support the conviction pertaining to the credit card given to Brooks.

With regard to the two cards surrendered to Lt. Gray in February, 1975, we likewise conclude that appellant retained possession with an intent to illegally use them during the enumerated period. Lee’s testimony that appellant had told him that he was keeping the cards for possible “use in an emergency” clearly establishes an intent to use them in violation of § 142A. This, when coupled with the fact that they were recovered from appellant in February, 1975, sufficiently supports a “rational inference,” Id., to sustain the convictions for those cards.

We find no merit in the further contention that the testimony of the accomplice, Brooks, was not sufficiently corroborated. There was the testimony of Faith McCloud, Barry Lee, Lt. Gray, Wanda Wendrock and James Kohler, all of which was corroborative of Brooks’ testimony and constituted direct evidence of appellant’s guilt.

Finally, it is contended that the prosecutor improperly commented upon a missing witness in his closing argument to the jury. Since the closing arguments of counsel were not transcribed, there is nothing before us from which we can make a judgment. That the court reporter had an injured hand may explain the failure to transcribe the arguments, it does not alter the fact that the arguments are not before us.

Judgments affirmed; costs to be paid by appellant.


text:
    KYONG SUN SCHNEIDER v. KARL SCHNEIDER
    [No. 524,
    September Term, 1976.]

      Decided March 11, 1977.

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

      Wallace Dann, with whom were Bregel & Bregel, Chartered on the brief, for appellant.

      Mark J. Hardcastle, with whom were Thomas G. Gray, Cornelius F. Sybert, Jr. and Sybert, Sybert & Nippard on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Almost six years ago, the parties to this appeal were divorced a vinculo matrimonii on grounds of voluntary separation. More than three years after the date of the decree, the appellant-wife filed a motion to set it aside on grounds of fraud. The chancellor (Childs, J.) denied the motion, holding that an attempt to reopen the decree by petition, rather than by original bill, was improper; and finding in effect that the appellant-wife had not made an appropriate showing of fraud. We affirm on the latter ground, although it is our conclusion that appellant’s motion, under Maryland Rule 625 a., was proper.

I

Appellant, Kyong Sun Schneider, a citizen of Korea, and appellee, Karl Schneider, a native Marylander, were married in Baltimore City on December 27, 1968, in a church ceremony. Appellant had come to the United States as a “war bride” and had been divorced from her first husband. After she and appellee had been married less than a year, they entered into a separation agreement on September 2, 1969, wherein he agreed to pay her $15,000 in cash in consideration of which she waived alimony. Although the agreement recited that they had mutually agreed to live apart without cohabitation as of the date of the signing of the agreement, the wife did not leave the marital residence for several days. Thereafter she returned to the marital abode from time to time for significant periods of time and the parties engaged in sexual relations on such occasions. Eventually, according to the appellee’s testimony, he engaged his former wife as a housekeeper in the matrimonial residence upon payment to her of $100 a week. The appellant contended, on the other hand, that she was not a hired housekeeper and that appellee maintained and supported her as his wife.

Coincident with his termination of this arrangement — whatever it may have been — and on or about September 16, 1974, appellant filed a motion to set aside the final decree of divorce dated May 19,1971. The gravamen of the motion was that the testimony on which the decree was granted was false. Included among the appellant’s allegations were the following:

“The defendant is a citizen of the Republic of Korea and a permanent resident of the United States. She does not read or write the English language and is unfamiliar with local legal customs and procedures. She was aware that something in the nature of a divorce proceeding was progressing, but she believed her husband who fraudulently told her that the proceeding was not going to forever dissolve the bonds of matrimony between them. Plaintiff further told defendant that he wanted her to continue to live with him and that upon his death she would inherit all of his real and personal property.”

Elsewhere in the motion, appellant claimed that there was never any actual separation between the parties and that from May, 1971 until July, 1974, when appellee filed eviction proceedings against her, appellee supported her and held her out as his wife; and that testimony given by appellee and his witness before the Master with respect to their being separated was false. The motion concluded with a prayer that the decree of divorce be set aside “because of a lack of grounds for granting such divorce.” The appellee by his answer to the motion specifically denied the wife’s allegations and averred that she had accepted the lump sum cash settlement of $15,000 in 1969, and that such continued cohabitation as took place was subsequent to the date of the divorce decree.

A hearing on the petition and answer was held before Judge T. Hunt Mayfield in June, 1975 and the matter was taken under advisement. Prior to disposition of the case, Judge Mayfield retired and the parties then elected to submit on the existing record rather than have the cause set in for rehearing.

After consideration of the pleadings and the testimony taken before Judge Mayfield, the chancellor ruled on the authority of Gray v. Gray, 245 Md. 713, 228 A. 2d 441 (1967):

“ ... the movant has alleged fraud but has attempted to reopen the decree by petition and not by an original bill. The instant petition does not fall within the ambit of either of the two recognized exceptions to the rule allowing an enrolled decree to be attacked by petition.”

The chancellor also made the following finding:

“The court finds that the movant had the benefit of both notice of the hearing before Master Cicone and representation by her counsel, Mr. Pusey, at that hearing. Movant had the opportunity to attend the hearing but chose not to attend.”

Dismissing the petition, the court also ordered that the transcript be referred to the State’s Attorney for Howard County, “for any action he may deem appropriate.”

II

Contrary to the holding of the chancellor, we conclude that there was no procedural defect in the proceedings below. We recognize that the earlier cases and older treatises abound with pronouncements that generally enrolled decrees may be reopened or set aside only upon the filing of a bill of review for patent error on the face of the decree or upon the filing of an original bill for fraud. See, e.g. E. Miller, Equity Procedure § 293-300 (1897); Pugh v. Waclawski, 211 Md. 346, 350, 127 A. 2d 376, 379 (1956); Vierling v. Holt, 197 Md. 522, 525, 80 A. 2d 24, 26 (1951); Tabeling v. Tabeling, 157 Md. 429, 146 A. 389 (1929); Pressler v. Pressler, 134 Md. 243, 245, 106 A. 686, 687 (1919); Whitlock Cordage Co. v. Hine, 125 Md. 96, 102, 93 A. 431, 433 (1915). See also Gray v. Gray, supra.

In labeling, supra, Judge Sloan cited Whitlock Cordage Co. v. Hine, supra, and quoted from the opinion therein by Chief Judge Boyd, who stated for the court:

“It must be confessed that it is not always easy to determine under the authorities when a petition to rescind an order or set aside a decree, which has become enrolled, should be entertained. The general rule undoubtedly is that a decree or a decretal order, after enrollment, can be revised or annulled only by a bill of review or original bill, and not by a petition, but there are exceptions to the rule, equally well established as the rule itself, which are generally classified as follows: (1) In cases not heard upon the merits. (2) Where-the circumstances are such as to satisfy the court that the decree should be set aside, and (3) where the decree was entered by mistake or surprise.” (Emphasis added.) 157 Md. at 433, 146 A. at 391, quoting, 125 Md. at 102, 93 A. at 433.

In the instant case, the chancellor relied upon similar language in a per curiam opinion of the Court of Appeals in Gray v. Gray, supra, where a former husband filed a petition to set aside a decree of divorce entered some seven years previously, and quoted the following language from that opinion:

“Rule 671 a provides: ‘A final decree, ... shall be considered as enrolled from and after the expiration of thirty days from date of same.’ The court’s revisory power over an enrolled decree is limited to cases of ‘fraud, mistake, or irregularity.’ Rule 625 a. It is settled Maryland law once a decree has been enrolled it may be reopened or set aside only upon a bill of review for error patent upon the face of the decree, or upon the allegation of newly discovered evidence, or upon the filing of an original bill for fraud. Here the appellant has alleged fraud but has attempted to reopen the decree by petition and not by an original bill. However, there are two recognized exceptions to the above stated rule which allow an enrolled decree to be attacked by petition. The first is where there is a showing that the decree was entered by surprise or mistake; the second is where the circumstances warrant the court to use its sound discretion and set aside the decree; however, these exceptions are only applicable if the case, in which the decree was rendered, was not heard upon its merits. Pinkston v. Swift, 231 Md. 346, 351, 190 A. 2d 533, 536 (1963); Cramer, Trustees v. Wildwood Co., 227 Md. 102, 107, 175 A. 2d 750, 753 (1961); Kennard v. McKamer Realty Co., 224 Md. 490, 168 A. 2d 372 (1961).
“At bar the original divorce proceeding was heard upon the merits at which appellant was represented by counsel; thus the two exceptions to the general rule discussed above will not better the appellant’s position.” (Emphasis added.) 245 Md. at 715-16, 228 A. 2d at 443.

The Gray case was decided by the court some ten years after the adoption by the court in 1956 of Maryland Rule 625 which became effective January 1, 1957. The rule provides in part:

“a. Generally.
For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity. ” (Emphasis added.)

As the Court of Appeals made abundantly clear in Hughes v. Beltway Homes, Inc., 276 Md. 382, 347 A. 2d 837 (1975), there is no distinction to be made between law and equity in the application of Maryland Rule 625 a. and, after the expiration of thirty days from the entry of a judgment, a court has revisory power and control only in case of fraud, mistake or irregularity; there being no- exception for equity cases not heard upon their merits. The court in Hughes did not have occasion to consider the question presented here, i.e., whether the issue of fraud, mistake or irregularity under Rule 625 a. may procedurally be raised by motion or whether, under Gray v. Gray, supra, and prior cases, a bill of review or an original bill for fraud is the only appropriate procedure.

Upon the basis of our research and consideration, we are acutely aware that this procedural issue has been a “troublesome question,” Whitlock Cordage Co. v. Hine, supra, 125 Md. at 107, 93 A. at 435, and that reconciliation of the cases is indeed a formidable, if not impossible, task.

In 1950, Chief Judge Marbury concluded in Vierling v. Holt, supra, 197 Md. at 527, 80 A. 2d at 27, after a review of the cases and treatises:

“The question just when the chancellor can or shall exercise his discretion to strike out an enrolled decree on petition has given frequent trouble to this court, and no very clear cut rule has been established.. .. The final result of all the decisions seems to be that no petition to strike out an enrolled decree should be granted where the case has originally been heard on the merits, although where there are extraordinary features which make it imperative in the interest of justice that the case be reopened, this requirement has sometimes been overlooked.” (Emphasis added.)

The latter expression no longer represents an accurate statement of Maryland law. “Extraordinary features” are now inapplicable and unavailing. The only basis upon which an enrolled judgment or decree may be reopened is the presence of “fraud, mistake or irregularity.” Maryland Rule 625 a.; Hughes v. Beltway Homes, Inc., supra. The rule itself specifically contemplates the employment of the motion procedure in the first sentence of 625 a. and we think the same is implicit with respect to the second sentence pertaining to enrolled judgments. We perceive no cogent reason why a motion (or petition) challenging an enrolled decree on any of the grounds specified in Rule 625 a. is permissible when the case has not been heard on the merits, but proscribed if it has been heard on the merits. This is not to say that a bill of review or an original bill for fraud is not also a viable and available remedy. Indeed, we recognize, as the court pointed out in Whitlock Cordage Co. v. Hine, supra, that “[t]here may unquestionably be cases in which it would be necessary to file an original bill, in order to bring the parties back into court”; and that situations may exist when by reason of lapse of time, the death or disappearance of parties, or other circumstances, the original proceeding should notlbe reopened but an independent attack should be launched by the filing of a new proceeding. 125 Md. at 108, 93 A. at 436. See, e.g., Schwartz v. Merchants Mortgage Co., 272 Md. 305, 322 A. 2d 544 (1974) (appellants proceeded unsuccessfully by an original bill in equity alleging fraud, filed four years after the original decree); Master v. Master, 223 Md. 618, 166 A. 2d 251 (1960) (where Judge Hammond, later Chief Judge, affirmed the propriety of an original proceeding to vacate an enrolled decree for fraud against an attempt to “snipe” at the right tó do so); Kaylor v. Wilson, 260 Md. 707, 273 A. 2d 185 (1971) (where the appellees elected to challenge a tax sale by an action in trespass quare clausum fregit, Judge Digges pointed out that, “an attack on an enrolled decree or decretal order based on fraud can only be maintained through a direct attack in the same proceedings under Maryland Rule 625 or through an original bill for fraud.” (Emphasis added.) 260 Md. at 711, 273 A. 2d at 187.) In the instant case, we think appellant proceeded properly by motion rather than by an original bill for fraud. This, however, is not dispositive of her appeal.

Ill

It has long been black letter law in Maryland that the type of fraud which is required to authorize the reopening of an enrolled judgment is extrinsic fraud and not fraud which is intrinsic to the trial itself. In Schwartz v. Merchants Mortgage Co., supra, the origin of our rule was traced by Judge Digges, writing for the court, “back to at least the turn of the century,” and it was shown to rest on the early Supreme Court case of United States v. Throckmorton, 98 U. S. 61 (1878), and the landmark California case of Pico v. Cohn, 91 Cal. 129, 25 P. 970 (1891).

In Schwartz, the court pointed out that the case of Maryland Steel Co. v. Marney, 91 Md. 360, 46 A. 1077 (1900), “settled beyond question that an enrolled decree will not be vacated even though obtained by the use oí forged documents, perjured testimony, or any other frauds which are ‘intrinsic’ to the trial of the case itself.” 272 Md. at 308, 322 A. 2d at 546. The rationale of the rule, as the court lucidly explained, is the principle that the public policy of this State demands an end to litigation once the parties have had an opportunity to present in court a matter for determination, the decision has been rendered, and the litigants afforded every opportunity for review. United States v. Throckmorton, supra, was quoted to provide examples of what would be considered “extrinsic” fraud. These examples included:

(1) fraud or deception practiced upon the unsuccessful party by his opponent as by keeping him away from court or making a false promise of a compromise;
(2) where the defendant never had knowledge of the suit but was kept in ignorance by the devices of the plaintiff;
(3) where an attorney “fraudulently or without authority assumes to represent a party and connives at his defeat”;
(4) where counsel “corruptly sells out his client’s interest to the other side.” Schwartz, supra, 272 Md. at 309, 322 A. 2d at 547.

Furthermore, the opinion of the Court of Appeals in Schwartz emphasizes that the “intrinsic-extrinsic distinction” is firmly embedded in the jurisprudence of Maryland and that the teaching of our cases is that “fraud is extrinsic when it actually prevents an adversarial trial, but is intrinsic when it is employed during the course of the hearing which provides the forum for the truth to appear, albeit that truth was distorted by the complained of fraud.” 272 Md. at 309, 322 A. 2d at 547.

In the case sub judice, putting the best face upon appellant’s claims and testimony, we have an example of, at most, intrinsic fraud. No extrinsic fraud — no fraud in the obtention of the decree — can even be suggested upon the record before us. This record discloses, inter alia:

(a) that appellant and her former husband were each represented by independent counsel when the separation agreement was prepared;
(b) that she covenanted that either party could appear by counsel at the divorce proceedings before the Master and acknowledged that her counsel had informed her of her rights and liabilities relating to the separation agreement;
(c) that notwithstanding her limited ability to read the English language, she spoke it with some fluency and was sophisticated enough to reject her husband’s initial separation offer of $10,000 in cash and to obtain his agreement to the payment of $15,000, a sum which she received and still retained at the time of the proceedings below;
(d) that through her counsel, she filed an answer to the husband’s bill of complaint, in which she admitted the allegations of the bill; and
(e) that she was informed by her counsel (who also represented her in her prior divorce) of the hearing before the Master but declined to appear and instructed counsel to be present alone because she “just wanted to get it over with.”

Under the circumstances, her claim that she did not expect the marriage bonds to be dissolved is hardly credible and, in any event, would represent defensive matter intrinsic to the trial itself. The latter is also true of her contention on appeal that the testimony before the Master of her former husband and his corroborating witness, the best man at their wedding, that the parties were separated and that there was no hope of reconciliation, was perjured.

Citing the chancellor’s finding that “the matter before him was governed by the law relating to extrinsic fraud,” appellant argues before this Court that “whatever may be the rule relative to general equity cases, the courts look differently upon divorce cases,” citing Fisher v. Fisher, 95 Md. 314, 52 A. 898 (1902). In actuality, the Maryland Court of Appeals has not looked differently upon matrimonial causes. Pressler v. Pressler, supra; Tabeling v. Tabeling, supra. In Tabeling, a decree granting the husband a divorce on the basis of the wife’s adultery was sought to be set aside on the ground that the husband connived in bringing about the adultery and it was contended that the decree was based upon the perjured testimony of the husband and his witnesses. Reversing a decree setting aside the original decree of divorce, the Court of Appeals stated:

“The charge that there was a conspiracy between the appellant’s witnesses to ‘frame’ the appellee, and that the decree was founded on their perjured testimony, likewise goes to the merits of the case, and is not recognized as a sound reason for setting aside a decree after it has been enrolled, . . . ." 157 Md. at 434, 146 A. at 391.

And in Pressler, supra, where a husband sought to set aside a decree of divorce granted to the wife, long after the decree had been enrolled, upon the basis of false testimony given by the wife in obtaining the decree, an order overruling a demurrer to the petition was reversed. The Court of Appeals noted the observation of its predecessors in Fisher v. Fisher, supra, upon which appellant here relies, that in divorce proceedings which are often not contested and where collusion may exist between the parties, the public has a peculiar interest which “is in the care of the tribunal before which the proceedings are pending, . .. lest by the suppression or perversion of important facts it may be made the medium of obtaining a decree to which neither of the parties is justly or legally entitled.” 134 Md. at 249, 106 A. at 689, quoting, Fisher, supra, 95 Md. at 319, 52 A. at 900. At the same time, however, the opinion in Pressler quickly adds:

“But we also said [in Foxwell v. Foxwell, 122 Md. 263, 89 A. 494 (1914)]: ‘Where the process has been regularly served upon the defendant and he fails to appear and make his defense and judgment is regularly entered against him, a strong case must be presented to justify the Court in striking out the judgment after the lapse of the term (or the enrollment of the decree); and the Court will not in any such case interfere with the judgment unless the facts produced clearly establish fraud, deceit, surprise or irregularity in obtaining the same, and the defendant has acted bona Jide and with reasonable diligence in making the application.” (Citations omitted.) (Emphasis in original.) 134 Md. at 250, 106 A. at 689.

Finally, it is apparent that the requirements of due diligence referred to in the above quotation is singularly lacking in the case before us. Here, as previously observed, more than three years elapsed between the date of the decree of divorce and the filing of appellant’s motion. We do not consider it an extenuating circumstance that during this period of time the parties cohabited nor that appellant did not initiate these proceedings until appellee terminated her status as “housekeeper” and filed eviction proceedings against her. In Hughes v. Beltway Homes, Inc., supra, where appellee moved to set aside an order of ratification following a foreclosure sale under Rule 625 a., almost six months after the sale, the Court of Appeals quoted the observation of the chancellor (Couch, J.) that: “The extraordinarily long time that passed from the date of sale until Beltway raised its complaint precludes a finding of diligence and may even bring the issue of good faith into question.” 276 Md. at 389, 347 A. 2d at 842. We think the latter observation is appropriate to the facts here presented, as is the following language of Judge Smith:

“There is yet another reason, however, why it should fail and that is that in moving to set aside a judgment on the ground of fraud, mistake, or irregularity a party must show by satisfactory proof that he is acting in good faith, with ordinary diligence, and that he has a meritorious defense or cause of action, as the case may be.” (Citations omitted.) Id.

Appellant did not, at all events, act with the diligence required by Maryland law.

Judgment affirmed; costs to be paid by appellant.

      . In the later case of Vierling v. Holt, supra, Chief Judge Marbury observed that the earlier cases, “indicate that instead of there being three classes of cases, there are only two, (1) where the decree was entered by mistake or surprise, and (2), where the circumstances are such as to satisfy the court that the decree should be set aside, and that, in each of these two classes of cases, it roust also appear that the case has not been heard upon the merits.” 197 Md. at. 526, 80 A. 2d at 26.

      . The court, at the conclusion of the opinion, also stated, however: “Assuming arguendo, that appellant’s petition was to be deemed an original bill for fraud, the facts ... amply show that there was no fraud practiced upon the appellant.”

      . That the exceptions to the procedures stated in Gray are no longer meaningful seems implied in Hughes v. Beltway Homes, supra. See Committee Note, placed under Rule 625 a. after the decision of this Court in Capobianco v. Gordon, 19 Md. App. 662, 313 A. 2d 517 (1974).

      . In Whitlock Cordage Co. v. Hine, supra, Chief Judge Boyd collected and considered most of the principal cases in Maryland decided prior to 1915.


text:
    MOSES DAVIS v. MILDRED GERHARD et al.
    [No. 533,
    September Term, 1976.]

      Decided March 11, 1977.

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

      Moses Davis for appellant.

      John E. Bohlen, Jr., for appellees.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Moses Davis, is a member of the Bar and is co-executor of the estate of Herbert C. Pollard, who died on April 7, 1965, leaving, it appears, a modest estate of approximately $45,000. Mr. Davis and Mrs. Grace Ballistreri of Waycross, Georgia, qualified as personal representatives of the estate, we were told, on April 13,1965. Mrs. Ballistreri is one of the appellees, the other appellee being her daughter, Mildred Gerhard, the sole beneficiary under the will. By Order of the Orphans’ Court for Baltimore County, dated April 13, 1976, a prior allowance to Mr. Davis of counsel fees in the amount of $5,000 was reduced by 50%; and he was also assessed the sum of $1,079.13 as interest on the proceeds of sale of real estate which had not been deposited in an interest-bearing account. It is from that Order that this appeal has been taken.

We find it incredible that a relatively simple estate has been so long in the process of administration; and we find it equally incredible that the record before us is so grossly deficient. We dismiss the appeal sua sponte pursuant to Maryland Rules 1026 and 1035, and we explain our reasons.

I

From such “record”, as has been transmitted from the Orphans’ Court of Baltimore County, we glean that disharmony has prevailed between Mr. Davis and the appellees. Furthermore, while it is difficult to understand the long duration of the proceedings below, we perceive that appellant Davis pursued, for a substantial period of time, in the United States District Court for the District of Maryland and in the Court of Appeals for the Fourth Circuit, an action against the Equitable Life Assurance Society of America in an attempt to recover upon a contract of annuity in the amount of approximately $11,000 on behalf of Mr. Pollard’s estate. This action was commenced in December, 1967 and was not concluded until some time in 1973, with a result favorable to the insurance company, which received a judgment for costs. Toward the conclusion of the litigation and upon a remand from the Fourth Circuit Court of Appeals to the district court, Mr. Davis was required to engage other counsel because it became necessary for him to testify as a witness.

In April, 1973 appellant filed a petition in the Orphans’ Court for counsel fees in the aggregate amount of $7,500 for legal services in connection with the claim against Equitable Life. On October 25, 1973, the Orphans’ Court entered an Order awarding him the sum of $5,000 and his co-counsel, Donald Rothman, the sum of $2,500.

More than nine months later, on June 13, 1974, appellees, Gerhard and Ballistreri, as sole heir and co-executor, respectively, filed “Exceptions to Counsel Fees and Final Accounting” on the ground that (a) the sums claimed for counsel fees were “excessive and not properly allowable out of the estate”; and (b) because the exceptants “have never been appraised [sic] of the accounting in the estate and object to several claims.”

Under date of June 14, 1974, detailed answers to the exceptions were filed by the appellant. In this response, Mr. Davis undertook to ventilate a number of complaints against the appellees, and characterized their exceptions as “an effort on the part of my co-executor, the mother of the legatee, M’ Gehard [sic], and with consent of the Legatee to get a reduction of my fee for a valuable service rendered to the estate, to their advantage and to my loss.”

It appears from the Record that thereafter the Orphans’ Court, on July 18, 1974, adopted an Order that the papers concerning the estate of Herbert C. Pollard be forwarded to a court auditor. On the papers before us, we cannot discern the precise reason for the audit, but a memorandum dated August 18, 1975 (more than a year after the audit was ordered) indicates that the audit was singularly unproductive. The memorandum was signed by Michael J. Gibson, auditor, and concluded with the statement that an account could be prepared as soon as the cash in the estate was reconciled and the amount of expenses determined, but “right now we don’t even know how much is in the estate.”

On July 2, 1975, the Register of Wills for Baltimore County mailed a notice of hearing in the estate on the subject of “Exceptions to Counsel Fees and Final Accounting” to be held on August 19, 1975 before the Orphans’ Court.

The scheduled hearing took place before Judges Mensh, Hamilton and Page. Appellant was present in his own behalf and the appellees were represented by John E. Bohlen, Jr., Esq. A transcript of these hearings is contained in the Record but not in the Record Extract. Testimony was received from the court auditor concerning certain stock transactions in the estate and it was disclosed that appellant had received compensation in the amount of $4,000 for legal services on December 5, 1966. A check signed by him and his co-executor on that date, payable to him, was never cashed. Appellant’s explanation was that he had sold stock in the estate, had paid himself from the proceeds and merely marked the aforesaid check “paid.” Judge Hamilton reproved the appellant stating:

“This $4,000 check is not good bookkeeping and not good practice. Mr. Gibson, I have just ordered Mr. Davis to deposit $4,000 of his money into the estate account, then he can pay himself properly. He paid himself out of the sale of stock. I told him it is illegal. I want the money from him put in an account in the amount of $4,000, then he can draw this check properly out as his fee. Then the record will show the stock sale money.”

Thereafter the hearing was recessed to be set down at a later date, at which time appellant was to produce certain deposit slips. The subsequent hearing, according to unsigned notes in the Record (“Petition Docket Proceedings — Notes From Court”), was held on October 10, 1975. This was an “informal hearing” during which Mr. Davis presented requested copies of checks to the court. The “notes” indicate that another hearing was to be scheduled on the exceptions át which Mrs. Ballistreri was to be present and at which Mr. Davis would present a copy of the final accounting with the “exception of counsel fees which will be determined at the hearing.”

So far as appears, no court action took place between October 10, 1975 and January 20, 1976. On the latter date, the Register of Wills mailed another notice of hearing for Wednesday, February 18, 1976, at which time Mr. Davis was to present a final account and the court would make a determination of his counsel fees.

The scheduled hearing was postponed for 30 days until March 18, 1976. The hearing on the postponed date did take place, according to “Notes From Court”, which recite:

“The Court Directed that Mr. Davis’ Counsel Fee be reduced to one half of what he requested ( ) [sic]. Also an assessment of 5% interest on the money from the sale of the house must be paid. Mr. Bohlen will draw up and submit the order.”

There is no transcript either in the Record Extract or in the Record of the March 18, 1976 hearing. We are totally uninformed as to who was present; what, if any, documents were received; what testimony, if any, was given with respect to appellant’s counsel fees or whether or not appellant at that time presented a final account in the estate. All we know is that, as a result of the hearing, the three members of the Orphans’ Court adopted an Order on April 13, 1976 from which appellant has prosecuted this appeal. The complete text of that Order is as follows:

“IT IS HEREBY ORDERED, this 13th day of April 1976, after a hearing of all the evidence on counsel fee, that Moses Davis be awarded an additional counsel fee of $2500.00 on his claim for services, less the amount of bank interest that would be due, due to the fact that the $10,791.34 from the sale of the house was not deposited in an interest bearing account, accounting from March 1, 1974 to this date at 5% totaling $1,079.13.
“IT IS FURTHER ORDERED that the final accounting and distribution of this Estate is to be made within thirty (30) days after the date of this Order.”

II

The above recitals are based upon photostatic copies — not original papers — of selected documents in the administration proceedings below and submitted to us as the Record on this appeal. The basis for the selection is nowhere explained. We find, no stipulation between counsel. Neither is there an Order, in accordance with Rule 1026 d., of the lower court stating that it was necessary that the original papers be kept in the lower court pending the appeal; and, of course, there is the glaring omission of any transcript of the final proceedings before the Orphans’ Court on March 18, 1976. Under these circumstances, we do not have any Record (not to mention Record Extract) upon which to make a determination with respect to the lower court’s alleged error in making an assessment against the appellant for $1,079.13 interest, as provided in the Order appealed from.

With respect to the reduction in appellant’s counsel fees, we tend strongly to the view that such “record” as has been submitted prevents us from making a determination, as requested by appellant, that the Orphans’ Court erred. The allowance of counsel fees by an orphans’ court requires the exercise of judgment and discretion and ordinarily such an award will not be disturbed on appeal unless an abuse of discretion has been shown. Wolfe v. Turner, 267 Md. 646, 653, 299 A. 2d 106, 109 (1973); Riddleberger v. Goeller, 263 Md. 44, 55, 282 A. 2d 101, 107 (1971); Lusby v. Nethken, 262 Md. 584, 586, 278 A. 2d 552, 553-54 (1971); American Jewish Joint Distribution Comm. v. Eisenberg, 194 Md. 193, 199-200, 70 A. 2d 40, 42 (1949).

Here, the court had already permitted the payment to appellant in 1966 of counsel fees of $4,000; the sum of $2,500 to Mr. Rothman and, in the Order appealed from, an additional allowance to appellant of $1,420.87 ($2,500 minus interest assessed at $1,079.13) was authorized. We also observe that appellant received on January 17, 1973 a commission in the sum of $1,472.16. When it is then considered that the litigation which gave rise to appellant’s request for additional counsel fees resulted only in five years’ delay and no recovery to the estate, it becomes quite apparent that to find an abuse of discretion on the part of the Orphans’ Court would be a travesty of justice.

We do not, however, decide the merits of this appeal. Rather, pursuant to the authority granted to us by Maryland Rules 1035 and the related rule previously cited, we dismiss this appeal sua sponte because what has been submitted to us as a Record represents a flagrant and inexcusable violation of the rules. See Kemp-Pontiac-Cadillac, Inc. v. S & M Construction Co., 33 Md. App. 516. 365 A. 2d 1021 (1976).

We are also constrained to observe that these proceedings reflect no credit upon the Orphans’ Court for Baltimore County which should consider seriously the imposition of appropriate sanctions, including the possible removal of both personal representatives, in this estate of less than $50,000 which is now entering upon its 12th year of administration.

Appeal dismissed; appellant to pay the costs; mandate to issue forthwith.

      . The statutory authority for the appeal is Md. Code (1974), Cts. & Jud. Proc. Art., £ 12-501 which supersedes Code 1957, Art. 5, §§ 9 and 10. Section 12-501 provides: “A party may appeal to the Court of Special Appeals from a final judgment of an orphans’ court.” The term “party” is not used in a technical sense but means anyone whose interest the Order has a direct tendency to affect adversely. See Meyer v. Henderson, 88 Md. 585, 41 A. 1073 (1898): see also Wright v. Nugent, 23 Md. App. 337, 328 A. 2d 362 (1974), aff'd, 275 Md. 290, 338 A. 2d 898 (1975).

      . The nature and deficiencies of the record are explained infra, Point II.

      . Because of the date of Mr. Pollard’s death, April 7, 1965, the questions involved in the estate are to be determined under the law as it existed prior to January 1,1970. Code (1969 Repl. Vol.) Art. 93, § 12-102 (a), now Estates and Trusts Article, § 12-102 (a). Section 7-502 of Art. 93 and of the Estates and Trusts Article would have made the Orphans’ Court order final and binding if notice had been given pursuant to § 7-502 (a) and a request for a hearing had not been filed within 20 days of the notice, in the absence of fraud, material mistake or substantial irregularity. These provisions, however, were not applicable and, at all events, it appears that no prior notice was given by appellant oí his request for counsel fees to either of the appellees.

      . However, the record does not disclose the nature of the legal services for which the appellant received compensation.

      . The counsel fee payable to Mr. Rothman had, it appears, properly been paid, following a hearing before Judges Mensh and Hamilton on July 16, 1974.

      . Of course, if a transcript is not in the Record, it may not be included in the Record Extract. See Community Realty Co. v. Siskos, 31 Md. App. 99, 354 A. 2d 181 (1976).

      . The statutory provisions concerning counsel fees as applied to this estate are found in Code (1964 Repl. Vol.) Art. 93, §§ 6 and 10. Allowance of counsel fees for estates administered after January 1, 1970 is governed by Estates & Trusts Art., § 7-602 (1974), formerly Art. 93, § 7-602 (1969 Repl. Vol.).

      . The Record Extract (and the Record] contains only a copy of the Second Administration Account, approved by the Orphans’ Court on March 29,1973 reflecting $44,259.63 as “Total Estate To Be Accounted For.”


author: Liss, J.,

text:
    DOROTHY K. KEENE et vir v. ARLAN’S DEPARTMENT STORE OF BALTIMORE, INC.
    [No. 547,
    September Term, 1976.]

      Decided March 11, 1977.

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

      John J. Hirsch, with whom was Henry J. Frankel on the brief, for appellants.

      Herbert Burgunder, Jr., with whom was Emanuel H. Horn on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

“Plus ca change, plus la meme chose” — the more things change, tne more they remain the same. We observe again here the proof of that aphorism in one of the latest of the many classic department store “fall down” cases which have found their way into the courts.

Dorothy Keene and her husband, Leonard, appellants, urge that Judge J. Harold Grady, sitting in the Superior Court of Baltimore City, erred when al the conclusion of the appellants’ case-in-chief he granted a motion for a directed verdict in favor of the appellee, Arlan’s Department Store of Baltimore, Inc. We agree with appellants and shall reverse.

As adduced from the testimony offered at the trial, on July 17, 1971, the Keenes entered the department store owned and operated by the appellee in Baltimore City, selected for purchase a Coleman stove, and Leonard Keene got into the second check-out line while Mrs. Keene continued to browse around the store. Some fifteen minutes later, during which time her husband had been moving forward in the check-out line, Mrs. Keene decided to join him and started to walk in his direction. Suddenly, her feet slipped out from under her and she “was sitting on [her] bottom on the floor.” She testified that an unidentified man in the first check-out line attempted to help her up and when she had almost gotten to her feet she slipped again, falling in such a way as to be facing the front of the store (as well as the cashier in the first line); that as she was regaining her feet for the second time she heard the cashier in the first check-out line blurt out, “I told them if this wasn’t cleaned up, someone’s going to fall.” Over objection and in response to the question, “Did you see her say that?”, Mrs. Keene answered, “Yes, I did.” When asked to describe “the method in which [the cashier] said it,” she answered, “Her nature was — seemed to be irritated, like she was upset.... a loud tone of voice, loud, irritated tone, excited.” Mrs. Keene said that her shoes and clothes were covered with a “clear, sleek solution,” which she had neither smelled nor seen on the floor before falling.

Mr. Keene corroborated his wife’s description of the events including the statement allegedly made by the cashier. He testified that he wiped a very slippery, slimy substance from his wife’s shoes; that it was also on his wife’s clothing and stockings; that he noticed a puddle on the floor where she had fallen and that there were slip marks on the floor in the puddle. A display of boxes containing a product known as Lemon-Up Shampoo was in the area adjoining the alleged puddle. There was no direct evidence establishing with certainty that the foreign material on the floor was shampoo; nor was there any evidence as to how the substance got on the floor or how long it had been there. Mr. Keene testified that during the fifteen minutes he was standing in the check-out line he had continuously observed the cashier in the first line and that during that entire time she spoke to no one other than those customers going through her check-out line.

There was testimony concerning the injuries and damages sustained by appellants, but that testimony — not being an issue in the controversy now before us — need not be recited. At the conclusion of the appellants’ case, the appellee moved for a directed verdict on five alternative grounds:

1) That there was no evidence offered in the case legally sufficient to entitle the plaintiffs to recover against the defendants;
2) That there was no evidence of primary negligence on the part of the defendant;
3) That the proximate cause of the accident was the negligence of the plaintiff, Mrs. Keene;
4) That Mrs. Keene was guilty of contributory negligence as a matter of law; and
5) That there was no evidence that the defendant had sufficient notice of the alleged condition of the floor in sufficient time to have corrected it.

Judge Grady in an oral opinion granted the motion on the ground that the evidence was too vague and non-specific to show actual notice on the part of any employee and that the jury would be required to speculate as to the negligence of the defendant if it should find a verdict against it. The jury was discharged, and a judgment in favor of the appellee was entered. It is from that judgment that this appeal was filed — on the ground that there was in fact sufficient evidence for the jury to determine the question of primary negligence on the part of the appellee.

The Court of Appeals of Maryland in Baulsir v. Sugar, 266 Md. 390, 394-95, 293 A. 2d 253, 255 (1972), has stated the sufficiency of evidence standards which warrant the granting or denial of a directed verdict:

“We have held that in reviewing the action of the trial court in granting a directed verdict for a defendant at the conclusion of a plaintiffs case, we will, in testing the sufficiency of the evidence, resolve all evidentiary conflicts in favor of the plaintiff and assume the truth of all the evidence and inferences that may naturally and legitimately be adduced therefrom in favor of the plaintiffs right to recover. Durante v. Braun, 263 Md. 685, 689, 284 A. 2d 241 (1971); Home Insurance Company v. Metropolitan Fuels Company, 252 Md. 407, 411, 250 A. 2d 535 (1969). We have also said that a plaintiff has not met his burden of proof if he presents merely a scintilla of evidence where the jury must resort to surmise and conjecture to declare his right to recover. Plitt v. Greenberg, 242 Md. 359, 367, 219 A. 2d 237 (1966); Fowler v. Smith, 240 Md. 240, 246, 213 A. 2d 549 (1965). A hypothesis resting on surmise and conjecture is not enough to warrant a submission of the case to the jury. Dorsey v. General Elevator Co., 241 Md. 99, 105, 215 A. 2d 757 (1966); Moulden v. Greenbelt Consumer Services, Inc., 239 Md. 229, 232, 210 A. 2d 724 (1965).”

On the other hand, that same Court said in Mass Transit Administration v. Miller, 271 Md. 256, 315 A. 2d 772 (1974):

“ ‘Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury’; that the rule requires submission of the case to the jury if there be any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury;. ...”

Curley v. General Valet Service, 270 Md. 248, 311 A. 2d 231 (1973); Fowler v. Smith, supra.

Our task, then, is to determine whether appellants’ case amounts to a mere hypothesis resting on surmise and conjecture or a skeleton fleshed out with sufficient — albeit meager — evidence requiring the issue to be submitted to the jury.

There is no dispute as to the basic legal principles governing this type of case: A customer of a department store is classified at law as an invitee. Dickey v. Hochschild Kohn & Co., 157 Md. 448, 146 A. 282 (1929); Link v. Hutzler Bros., 25 Md. App. 586, 335 A. 2d 192 (1975), cert. denied, 275 Md. 750 (1975). The duty owed by a proprietor to his customer was clearly stated by Judge Barnes speaking for the Court of Appeals in Honolulu Ltd. v. Cain, 244 Md. 590, 595, 224 A. 2d 433, 435 (1966):

“The duty of an occupant of land toward his business ‘invitee’ rested, in its inception, upon an implied representation of safety, ‘a holding out of the premises as suitable for the purpose for which the visitor came ...’, Prosser, Business Visitors and Invitees, Selected Topics of the Law of Torts 243, 261 (1953). The word ‘invitee’ itself, conveys the idea that the place is held out to the visitor as prepared for his reception. The occupant does not, of course, become an insurer of the safety of those who accept his invitation. But when the public is led to believe that premises have been offered for its entry, the law is clear that the occupant assumes a duty of reasonable care to see that the place is safe for the purpose. The duty extends to those who are injured when they enter in response to the invitation.”

Chief Judge Gilbert of this Court, in Link v. Hutzler Bros., supra, noted that our Court of Appeals has cited with approval the view of the Restatement (Second) of Torts § 343, which states that a possessor oí land is subject to liability for physical harm caused to his invitees by a condition on his property if he:

“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”

Accord, Mondawmin Corporation v. Kres, 258 Md. 307, 266 A. 2d 8 (1970); Honolulu Ltd. v. Cain, supra; Evans v. Hot Shoppes, Inc., 223 Md. 235, 164 A. 2d 273 (1960); Glaze v. Benson, 205 Md. 26, 106 A. 2d 124 (1954); Yaniger v. Calvert Building & Con. Co., 183 Md. 285, 37 A. 2d 263 (1944).

There is a distinction to be made between those cases which occur as a result of some overt action by the owner or his employees (waxing or oiling of floors) and those which for convenience have been designated as foreign object, notice type of cases. In the first type, notice is usually not an issue since the owner or his employees are alleged to have created the dangerous condition. In the case before us, which is an example of the second type, appellants offered no affirmative evidence to indicate that the owner of the premises or its employees created the dangerous condition complained of. The condition could have been created by innumerable intervening causes not attributable to either the owner or its employees. Appellants, then, must stand or fall on their legal position that the evidence shows that a dangerous condition existed, that the owner had actual or constructive knowledge of it, and that that knowledge was gained in sufficient time to give the owner the opportunity to remove it or to warn the invitee. Lexington Market Authority v. Zappala, 233 Md. 444, 197 A. 2d 147 (1964); Rawls v. Hochschild Kohn & Co., 207 Md. 113, 113 A. 2d 405 (1955); Montgomery Ward v. Hairston, 196 Md. 595, 78 A. 2d 190(1951).

There is no question that a dangerous condition existed in the Arlan store on the day that Mrs. Keene fell. In support of their contention that the store owner or his employees had notice of the condition, appellants offer the statement allegedly blurted out by the cashier. Appellees strenuously object to the admissibility of the statement on the ground that it is hearsay. We agree that it is hearsay but believe the trial court was correct in admitting it on the ground that it fell within the “excited utterance” exception to the hearsay rule. The requirements which must be shown in order to invoke the exception are discussed at some length in Jackson v. State, 31 Md. App. 332, 356 A. 2d 299 (1976). They are more succinctly set out in McCormick, Evidence § 297 (1972):

“First, there must be some occurrence or event sufficiently startling to render normal reflective thought processes of an observer inoperative. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought.”

6 Wigmore, Evidence § 1747 (3rd ed. 1940).

We believe that the circumstances surrounding the alleged statement by the cashier were sufficient to sustain its admission as an exception to the hearsay rule. The special reliability of the testimony is furnished by that excitement which suspends the declarant’s powers of reflection and fabrication.

If the testimony of the appellants concerning the cashier’s statement was believed by the jury, it could have raised an inference that the cashier, an agent of the owner of the premises, had knowledge of the dangerous condition and had relayed that information to “them.” It was for the jury to determine who “them” referred to and to test the weight of the evidence in reaching its conclusion as to whether the appellants had met their burden of proof. Direct evidence that the cashier had notified some other person in authority was not necessary. Proof that she made the statement permits an inference that she notified her principal or employer, the store owner, that a dangerous condition existed in the premises and that an invitee might suffer injuries as a result.

The appellants had the further responsibility of producing evidence that the dangerous condition had existed for a sufficiently long period of time for the owner or his employees to correct it or to warn his invitees. In support of that requirement, the following testimony of Leonard Keene was offered:

“Q. All right. Now, wrhile you were in that line, were you facing the front of the store towards the cash registers? A. Yes, I was.
Q. All right. And did you have a clear view of the cashier number one and cashier number two? A. I had a clear view of cashier number one, not of number two. The people in front of me were blocking the view of cashier number two.
Q. But you could see cashier number one? A. Yes.
Q. How long had you observed the cashier number one? A. The whole time I was in the line.
Q. The whole fifteen minutes? A. (Nodding in the affirmative. I
Q. During that period of time did you see her talk to anybody other than the customers that were going through the line in the cashier’s line?
A. No, I did not.
Q. Did you observe her constantly during that fifteen minute period of time? A. Yes, I did.
Q. Did you see her leave that booth at any time during that time? A. No, I did not.
Q. Did you see anybody approach that booth other than the people who were customers with their packages? A. No, I did not.”

If the jury believed this testimony, it could have inferred that as no persons other than the customers were in communication with the cashier for a period of fifteen minutes, then the warning given to “them” — “that if this wasn’t cleaned up, someone’s going to fall,” was given more than fifteen minutes before Mrs. Keene fell.

We are sympathetic with Judge Grady’s uneasiness regarding the inconclusive state of the evidence but remain mindful of the requirement:

“[T]hat before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn; . . . .” (Emphasis supplied)

Curley v. General Valet Service, supra, at page 264. It is true that the inferences to be drawn from the evidence are arguable at best, but the determination of the weight of the evidence is the responsibility of the jury. We believe that the evidence offered by the appellants was sufficient to raise, at least, an inference of negligence on the part of the appellee and that the motion for a directed verdict should have been denied.

Judgment reversed.

Case remanded for a new trial.

Costs to be paid by appellee.

      . Alphonse Karr, French novelist and satirist (1808-1890), Les Guepes [Janvier, 1849],

      . The admission into evidence of the “excited utterance” of the cashier is to be distinguished from the principle that the party who introduces the statement of an agent for the purpose of thereby binding the principal with an admission must first bear the burden of showing that an agency existed and that the statement was made while the agent was acting within the scope of his authority. Greenstein v. Meister, 279 Md. 275, 368 A. 2d 451 (1977); Wells v. Hecht Bros. & Co., 155 Md. 618, 623, 142 A. 258 (1928); Grzboski v. Bernheimer-Leader Stores, 156 Md. 146, 148, 143 A. 706 (1928). This principle has no applicability here since the testimony is admissible against the principal only to the same extent as that of any other person operating at the time and place under the same circumstances as the cashier in this case. The purpose of the introduction of the “excited utterance” here is not to prove an admission where the agency or agent’s authority is in question — but to prove the circumstances from which the defendant’s negligence may be inferred. See Restatement (Second) of Agency, § 289 d.