text:
    HERMAN GREEN v. STATE OF MARYLAND
    [No. 995,
    September Term, 1975.]

      Decided September 14, 1976.

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

      Robert E. Famell, III, with whom were Famell, Freeland & Wright on the brief, for appellant.

      Henry E. Dugan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arrie W. Davis, Assistant Attorney General, and Sidney S. Campen, Jr., State’s Attorney for Talbot County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

The first count of an indictment returned by the grand jury of Talbot County charged that Herman Green, on 27 June 1973, with intent to defraud, feloniously did falsely make, forge and counterfeit a certain check or bill of exchange. Count 2 charged that Green caused and procured the forgery of the check, and Count 3 charged that he uttered the forged check.

At a jury trial held in the Circuit Court for Talbot County on 19 November 1973 Green was found guilty of the first count. The trial judge granted his motion for judgment of acquittal on the second and third counts. After sentence was imposed, Green appealed. We affirmed. Green v. State, 23 Md. App. 680, 329 A. 2d 731 (1974). We declined to decide a variance question raised in that appeal, because it had not been tried and decided below. Maryland Rule 1085.

Also raised by Green in his first appeal was whether the method of selection of the jury violated his rights. We held that the facts touching on that issue could not be ascertained from the record before us, and said that the resolution of the contention was best left to post conviction procedures. Green’s subsequent petition for post conviction relief was granted. His conviction was set aside, and he was awarded a new trial.

The present appeal arose from Green’s second trial, held before a jury in the Circuit Court for Talbot County on 9 September 1975. It appears that Green moved to dismiss the second and third counts, on the ground of double jeopardy. The motion was not argued nor ruled upon. In any event, the State, with no objection, entered a nolle pros as to those counts. Green’s motion for judgment of acquittal at the close of all the evidence was denied. The verdict of the jury on the first count was guilty.

This appeal raises the question of sufficiency of evidence, which appellant states simply: may a person charged with forgery of a check be convicted on evidence showing forgery of an indorsement to a check? Appellant also questions the sufficiency of the evidence to prove an intent to defraud. Both questions were raised by his motion for judgment of acquittal below, and were decided adversely to him.

For the purpose of deciding the questions presented the facts may be stated very briefly. A book of checks was stolen from the place of business of Thomas Shockley, in Talbot County. A few days later one of the checks was passed at a supermarket in Easton. The check was signed with the name “Thomas Shockely”, but Mr. Shockley did not sign his name, nor did he write any part of the check. The named payee was “Robert Thomas”, presumably a fictitious name. That name was signed, as an indorsement, on the back of the check. There was expert evidence that it was written by Herman Green, the appellant. There was no evidence to show who filled in the face of the check, except that it was neither Mr. Shockley nor the appellant.

The criminal act charged against appellant was referred to in the indictment as being in “violation of Article 27 Section 44 Annotated Code of Maryland (1957) against the peace, government and dignity of the State.” Section 44, with the part relating to uttering deleted, reads:

“Any person who shall falsely make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in falsely making, forging, altering or counterfeiting any deed, document or affidavit of waiver or release of mechanics’ lien, will, testament or codicil, bond, writing obligatory, bill of exchange, promissory note for the payment of money or property, endorsement or assignment of any bond, writing obligatory, bill of exchange, promissory note for the payment of money or property, acquittance or receipt for money or property, or any acquisition or receipt either for money or for property, with intention to defraud any person whomsoever, * * * shall be deemed a felon, and on being convicted thereof shall be sentenced to the penitentiary for not less than one nor more than ten years.”

It will be seen that what the statute does is to deem to be a felon, and prescribe the sentence, for any person who falsely makes, forges, or counterfeits, with intention to defraud any person whomsoever, any of the following instruments:

a. Deed
b. Document of affidavit of waiver or release of mechanics’ lien
c. Will, testament or codicil
d. Bond
e. Writing obligatory
f. Bill of exchange
g. Promissory note for the payment of money or property
h. Indorsement or assignment of any bond, writing obligatory, bill of exchange, promissory note for the payment of money or property
i. Acquittance or receipt for money or property or
j. Any acquisition or receipt either for money or for property.

Also deemed a felon, and likewise punished, is one who causes or procures, or willingly aids or assists another to commit the proscribed acts, and one who utters or publishes as true any such false, forged, altered, or counterfeited instrument.

It is evident that under the statute, forgery of an indorsement on any of certain specified instruments is, or at least can be, a separately indictable crime. It is also clear that forgery of any material part of an instrument is forgery of the instrument. What the question amounts to is whether an indorsement on a check, the forgery of which may be charged as a separate crime, becomes an integrated part of the check, so that forgery of that part of the check may be charged as forgery of the check.

Ever since the enactment of Chapter 75, Laws of Maryland, 1799, “An Act for the more effectual preventing of forgery * * * ”, forgery of an indorsement or assignment on certain instruments has been statutorily proscribed separately from, or at least in addition to, forgery of the instrument itself.

In our earlier opinion in Green v. State, supra, we stated and discussed the variance issue then raised in order to illustrate that it was not before us because it was not raised at the trial. We said, at 685:

“There is no question but that the first count of the indictment was sufficient on its face to charge that Green forged the check designated. So the indictment itself is not subject to attack. But the general rule is that matters essential to the charge must be proved as alleged in the indictment. Love and Matthews v. State, 6 Md. App. 639, 642. We put it thus in Benjamin v. State, 9 Md. App. 373, 375: ‘It is, of course, well settled that the evidence in a criminal case must not vary from those allegations in the indictment which are essential and material to the offense charged.’ When there is a material variance between the allegata and the probata, the judgment must be reversed. Melia and Shelhorse v. State, 5 Md. App. 354, 363.”

In McDuffy v. State, 6 Md. App. 537, 252 A. 2d 270 (1969], we applied the variance rule when we said, at 538-39:

“The indictment charged that McDuffy forged an ‘American Oil Credit Card.’ Testimony showed that the card was not in any way forged or altered by anyone, but that a receipt for certain merchandise was forged by McDuffy, who contends that he cannot be convicted of forging a receipt under an indictment which charges him with forging a credit card. We do not think it requires a citation of authority to support the proposition that an individual cannot be convicted of forging one instrument when the proof shows that he forged an entirely different instrument. We must, therefore, reverse this conviction.”

The Court of Appeals has indicated that the forgery statutes in Maryland do not necessarily cover the entire field of forgery. In Reddick v. State, 219 Md. 95, 148 A. 2d 384 (1959), the appellant had been convicted of forging and uttering a license to practice medicine and surgery in the State of Maryland. He contended on appeal that the indictment did not charge an offense because Code, Art. 27, § 45, relating to forgery of public documents, referred to “any commission, patent or pardon” and a license to practice medicine was not a commission. The Court of Appeals said, at 98:

“But if we assume, without deciding, that the statute does not cover the case at bar, it would seem that the indictment for forgery and uttering would be good at common law. See Arnold v. Cost, 3 Gill & J. 219. Forgery has been defined as ‘the false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.’ 2 Wharton, Criminal Law and Procedure (Anderson’s ed.), Sec. 621. See also Clark and Marshall, Crimes (5th ed.), Sec. 398. Even where a statute has been enacted covering forgery, the common law offense is still applicable where the statute was not intended to cover the whole field or to repeal the common law. Clark and Marshall, supra, Sec. 14; Joyce, Indictments, Sec. 14. Cf. Lutz v. State, 167 Md. 12, 15.”

In the absence of a statute covering checks and indorsements, a forgery of either would undoubtedly be an indictable common law offense. But when the statute, in explicit words, lists a series of written instruments which may be the subject of forgery, we are satisfied that the statute was intended to cover at least so much of the field as is included in the list.

We have considered the distinction in commercial law between an instrument and an indorsement affixed to it, but we are not persuaded that the same distinction is required in criminal law. The separate and distinct contracts of a drawer and of an indorser, as set out in §§ 3-413 and 3-414 of the Code, Art. 95B, would not preclude a holding in a prosecution for forgery that an indorsement becomes a part of the instrument indorsed.

It is the separate treatment of the offenses in Maryland’s forgery statute which requires us to hold that a person may not' be convicted of forging a check when the proof shows that he forged only an indorsement. The question seems not to have been ruled upon previously by the Court of Appeals or by this Court. Cases in other jurisdictions do not clearly lay down a general rule, but those which appear to take a view different from ours do so under their own state statutes, which differ from ours. In its brief and argument here the State points to the logic of the holding of the Supreme Court of Ohio in State v. Hearn, 154 N.E. 244 (Ohio 1926). That Court stated, at 244:

“The question presented by this record is whether or not there is a fatal variance where an indictment charges the forgery of a check with intent to defraud, and the uttering and publishing thereof with like intent, and the proof offered shows the check on its face to be genuine and the indorsement on the back a forgery, made with intent to defraud, and that such check was uttered and published with the same intent.”

Noting that all crimes in Ohio were statutory, and that it was established Ohio law that an indorsement on a check was the subject of forgery, the Court set out the forgery statute. The statute listed, as the subjects of forgery, “a record or other authentic matter of a public nature, a license or certificate authorized by law, a charter, letters patent, deed, lease, writing obligatory, will, testament, annuity, bond, covenant bank bill or note, check, bill of exchange, contract, promissory note for the payment of money, * * The Court discussed the meaning of the word “indorsement” with relation to the word “check”, and said, at 245:

“While the effect of an indorsement at times is to make different legal relation of parties, the instrument itself may still be within the definition and meaning of the word ‘check.’
“So far as the statute in question is concerned, the word as employed therein covers the word ‘check’ in all its aspects, as to date, amount, drawer, payee, and indorsements. It is as much a violation of the statute to forge a name, with intent to defraud, upon the back of a check, as upon the face thereof.”

The Ohio Court referred to a Florida case, Akin v. State, 98 So. 609 (Fla. 1923), which reached a similar result, and noted that the statutes in both states were similar in that they did not separately provide against forged indorsements.

If the General Assembly of Maryland had not separately listed indorsement of a bill of exchange as a subject of forgery under the Maryland statute, we would be inclined to regard State v. Hearn, supra, as persuasive that it was the legislative intent that an indorsement should be construed to be a part of the instrument indorsed. But the Maryland statute is radically different from that of Ohio. It is significant also that Ohio had no common law crimes, and its legislature could hardly have intended that forging indorsements on checks should go unpunished.

Similar to State v. Hearn, supra, in result, but not in reasoning, is State v. Kendrick, 173 N.W.2d 560 (Iowa 1970). Kendrick was convicted on a charge that he “forged a certain instrument in writing purporting to be a bank check.” The proof showed that he forged an indorsement on a check otherwise genuine. The Iowa statute listed numerous instruments as subjects of forgery, among them a bill of exchange, an indorsement of a bill of exchange, and an instrument in writing by which any pecuniary obligation is or purports to be created. Kendrick argued that the State charged him with forgery of a check, but proved a different crime. The Supreme Court of Iowa disagreed with his premise, and held that the charge was forgery of “a certain instrument in writing”, and that the evidence that he forged an indorsement supported his conviction on that charge.

Other cases tend to support the contention of the appellant in the case before us. In Cochran v. State, 30 S.W.2d 316 (Texas Crim. App. 1930), the accused was convicted on an indictment charging that he made a false instrument in writing, and setting out in full, including the indorsement on the back, the tenor of the instrument, which was a county treasurer’s warrant for the payment of money. The proof showed that the warrant was genuine, and only the indorsement was false. The Court said that the indorsement, although set out in the indictment, was no part of the check, and that the evidence did not coincide with the charge. The Court made no reference to a statute, but held that the variance was fatal, and required reversal of the conviction. In Landrum v. State, 42 S.W.2d 1026 (Texas Crim. App. 1931), the same court relied upon Cochran to hold that a conviction on a charge of making a false instrument, setting out a check, including the indorsement, could not stand, when the evidence showed that only the indorsement was forged. Ames v. State, 499 S.W.2d 110 (Texas Crim. App. 1973), cited by the State, is inapposite. Both the charge and the proof were the forgery of an indorsement. The forgery statute in Texas contained no itemization of instruments subject to forgery, but used the general term, “false instrument in writing, purporting to be the act of another.” The Court held that a false indorsement was included within the offense of forgery as defined in the statute.

The Court of Appeals of Alabama, in Brown v. State, 7 So. 2d 24 (Ala. App. 1941), relying upon Cochran v. State, supra, Landrum v. State, supra, and numerous other authorities, cited, held that there was a fatal variance when the indictment charged forgery of an instrument, setting out a warrant of the county commissioners, and the proof showed forgery only of the indorsement. In a brief opinion accompanying a denial of certiorari, the Supreme Court of Alabama, Brown v. State, 7 So. 2d 28 (Ala. 1942), said:

“But our statute * * * defines forgery in the second degree, in part, as the forgery of a bond, bill — single, bill of exchange, promissory note, or any indorsement thereof, and in the statute the utterance of a forged indorsement is specially mentioned. The statutes quoted in the cases relied on by the State do not specify as a separate offense the forgery of an indorsement on such an instrument. Everyone admits that the indorsement itself is a separate contract and is the subject of forgery, but it is said in those authorities that it is not so distinct and independent as not to be embraced in the charge of forgery of the instrument as a whole, setting it out as thus indorsed.
“While the indorsement is not independent, it is a separate and distinct and different contract from any other feature of the instrument. Our statute emphasizes that distinction and that the forgery of an instrument is a different offense from the forgery of an indorsement of it. Under our statute * * * a person who is sought to be convicted for forging an indorsement should be apprised of the fact that it is the indorsement which is involved and not the instrument which is indorsed.”

Perhaps more on point than any other is the recent case of State v. Daye, 23 N.C. App. 267, 208 S.E.2d 891 (1974), in which the Court dismissed a prosecution because of a fatal variance. It said, at 893:

“It is apparent that the bill of indictment charges the defendant with the crime of uttering a forged check. Yet the evidence tends to show that the drawer, the drawee, the payee, the date, and the amount are perfectly valid. The evidence offered at trial tended to show that the defendant uttered the check with the forged endorsement of yernon Respass, the payee. This is an act wholly different from the act of uttering a forged paper. The first sentence of G.S. § 14-120 makes it illegal to utter a forged paper; the second sentence of G.S. § 14-120 makes it illegal to utter an instrument with a forged endorsement. The offenses are separate and distinct felonies.”

The State suggests in its brief that aside from the indorsement, the evidence that appellant had possessed the check would support a finding that he “played a part in the forgery of the face of the check” or that he “forged the face of the check either by his own hand or in complicity with others”. It is true that an inference that appellant forged the check might ordinarily be permitted. The Court of Appeals said in Wesbecker v. State, 240 Md. 41, 212 A. 2d 737 (1965), at 45:

“As the possessor of the forged $432.50 check and the utterer of it, there is an inference which established a prima facie case of guilt of forgery by the possessor.”

We applied the same rule in Turner v. State, 6 Md. App. 337, 251 A. 2d 383 (1969). In that case, Turner was convicted of forgery and uttering upon evidence that he attempted to cash a forged check in a department store. He argued that the evidence was not sufficient to show that he forged the check. We said, at 339:

“In the absence of a satisfactory explanation the forgery could be inferred from the possession and uttering of the forged instrument, * * *.”

On the evidence in this case the court could not permit the jury to infer that the appellant forged the face of the check from the mere fact that he physically possessed it when he forged the indorsement on the back. An inference may be resorted to for the purpose of filling, by logical deduction, an evidentiary area otherwise void of credible evidence. There was no void here. The State’s own handwriting expert supplied affirmative evidence that Green did not write the face of the check. To the extent that the State suggests that appellant forged the check “in complicity with others”, the second count of the indictment had charged that the appellant did cause or procure the check to be forged, but his motion for judgment of acquittal on that charge was granted by the trial court.

Appellant’s other contention, that the evidence was not sufficient to show that he had the intention to defraud any person, has no merit. It is inherent in the nature of intent, a subjective determination, that rarely can it be proved directly, and ordinarily it must be inferred. Yopps v. State, 234 Md. 216, 198 A. 2d 264 (1964); Waller v. State, 13 Md. App. 615, 284 A. 2d 446 (1971); Wiggins v. State, 8 Md. App. 598, 261 A. 2d 503 (1970).

The evidence before the jury was sufficient to permit it to infer that appellant presented the check at the supermarket and received goods or money, or both, in return. If he did that, he defrauded the owner of the store, and the jury could find that the fraud was intended.

Judgment reversed.

Case remanded for a new trial.

Costs to be paid by Talbot County.

      . The Court of Appeals long ago held that a check was a bill of exchange. Hawthorn v. State, 56 Md. 530 (1881); Laird v. State, 61 Md. 309 (1884).

      . That Act has been amended several times, by Chap. 138, Laws of 1809; Chap. 550, Laws of 1890; Chap. 590, Laws of 1900; Chap. 419, Laws of 1902; and Chap. 80, Laws of 1969; but the substance, as it relates to the question before us, remains the same.

      . Now Commercial Law Article.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    JAMES OTTIE GREENWELL v. STATE OF MARYLAND
    [No. 1010,
    September Term, 1975.]

      Decided September 14, 1976.

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

      Geraldine Kenney Sweeney and Leonard C. Redmond, Assistant Public Defenders, with whom were Alan H. Murrell, Public Defender, and Edward J. Angeletti, Assistant Public Defender, on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William D. Yates, State’s Attorney for Kent County, and Maurice Lewis, Assistant State’s Attorney for Kent County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

James Ottie Greenwell, indicted in Dorchester County on two charges of murder, was tried in Kent County before a jury and Judge Harry P. Clark. From his convictions of first degree murder in each case, and sentences to two consecutive terms of life imprisonment, he took this appeal.

Only one question is raised in this Court. It is stated in appellant’s brief in these words:

“Did the trial judge err in overruling the motion to suppress incriminating statements made by Appellant during custodial interrogation conducted before Appellant obtained counsel, where persuasive evidence showed that Appellant had a learning disability which substantially affected his capacity to make a knowing and intelligent waiver of his constitutional rights?”

The bodies of William Glazier and his wife, Dorothy Glazier, were discovered in the bedroom of their home in Dorchester County at about 7:00 A..M. on 23 September 1974. Each had been killed, probably two days earlier, by shotgun fire. The indictments against appellant charged that he murdered the two victims. The cases were removed to Somerset County, and from there were removed to Kent County for trial. The trial began on 14 July and was concluded on 19 July 1975.

Appellant moved to suppress oral statements made by him while he was in custody. The motion was heard separately, out of the presence of the jury, during the course of the trial. The transcript of the separate hearing covers about 370 pages, and records the testimony of five police officers, a psychiatrist, and Greenwell’s employer, all called by the State, and of a clinical psychologist, called by the appellant. Judge Clark’s ruling that the statements were admissible in evidence is the basis of the only issue before us in this appeal.

Evidence at the suppression hearing showed that at noon on 23 September 1974 State Trooper Ralph Lewis, at the request of another officer, located Greenwell at Cordova, in Talbot County, and asked Greenwell to come with him to the Dorchester County Sheriffs office at Cambridge. At the Sheriffs office Greenwell was questioned, at about 1:00 P.M., by Detective Sgt. Joseph Keating of the State Police, and by Thomas Roe, an investigator for the Sheriffs office. He made what they described as an oral statement.

From Cambridge Greenwell was taken to Salisbury by Roe and Corporal Donald Cox, of the State Police. At Salisbury Greenwell was given a polygraph test by State Police Corporal Charles Griffith, after which he made an oral statement to Griffith, Cox, and Roe. Back at Cambridge, at about 6:00 P.M. on the same day, Greenwell made a third oral statement to Roe and Cox, in the presence of a court reporter, who recorded and transcribed what was said. Two days later, on 25 September 1974, Greenwell made a fourth oral statement, this time at the State Police office in Cambridge, in the presence of Roe and Cox.

According to the undisputed evidence, before any interrogation was begun on each of the four occasions, an officer read each of the so-called “Miranda warnings” to Greenwell, and he responded that he understood. On two of the occasions he signed a waiver on the paper on which the “warnings” were printed. Also undisputed was the evidence that the statements were not induced by any force, threats, or promises, and that each of the statements was entirely voluntary.

A fundamental responsibility of our system of criminal justice is to provide a means by which both society and a person accused of crime may participate together in the search for truth, within a framework of rules of law and procedure designed to assure fairness to both.

When a crime is known to have been committed, it becomes not only the right, but the duty of law enforcement officers to investigate — to search for facts — to search for the truth — to the end that the person who committed the crime may be dealt with as justice requires. An officer may seek information wherever it can be found. He may, indeed, ask the very person he suspects of guilt, “Did you commit this crime?” If the person suspected is later charged and brought to trial, his response may be offered in evidence against him at the trial.

Two different constitutional principles may bear, simultaneously, or independently of each other, on the question of admissibility of that evidence. One is that it must be shown that the statement was not induced by force, threats, or promises, but was made freely and voluntarily. The other is that when the statement stems from a custodial interrogation, it must be shown that the accused knew and understood that he had a constitutional right not to be compelled to be a witness against himself, and that he voluntarily, knowingly, and intelligently waived his rights.

The requirement that the statement be made voluntarily is of long standing. It was expressed by the Court of Appeals in Nicholson v. State, 38 Md. 140 (1873), when it said, at 153:

“Without undertaking to lay down any general rule on this subject, or attempting to define the nature and character of the inducements held out to a prisoner, which would render his confession inadmissible; for this must necessarily depend very much upon the particular circumstances of each case; it is very clear upon all the authorities, that if the confession of the appellant had been induced by any threat of harm, or promise of worldly advantage held out to him by Crone, or by his authority, or in his presence and with his sanction, it ought to be excluded.
“The law is also well settled that the onus is upon the prosecutor, to show affirmatively, that the confession proposed to be offered was not made in consequence of an improper inducement. 1 Taylor, sec. 796. In the language of Baron Parke in Reg. v. Warringham, 2 Den. C. C. 448, note, the court must be satisfied that the confession sought to be used in evidence against the prisoner, ‘was not obtained from him by improper means.’ ”

The rule has continued to be applied in Maryland. In Smith v. State, 189 Md. 596, 56 A. 2d 818 (1948), the Court of Appeals said, at 603-04:

“Before a confession can be admitted in evidence, the State must show, to the satisfaction of the court, that it was the free and voluntary act of an accused; that no force or coercion was exercised by the officers obtaining the confession, to cause the accused to confess; that no hope or promise was held out to an accused for the purpose of inducing him to confess.”

Involved in the reasoning of some of the earlier cases and writers was the likelihood that a forced confession may be untrustworthy. The Supreme Court of the United States rests the rule squarely upon the due process clause of the Fourteenth Amendment. Mr. Justice Frankfurter said for the Court in Rogers v. Richmond, 365 U. S. 534, 81 S. Ct. 735, 5 L.Ed.2d 760 (1961), at 540-41:

“Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. See Chambers v. Florida, 309 U. S. 227; Lisenba v. California, 314 U. S. 219, 236; Rochin v. California, 342 U. S. 165, 172-174; Spano v. New York, 360 U. S. 315, 320-321; Blackburn v. Alabama, 361 U. S. 199, 206-207. And see Watts v. Indiana, 338 U. S. 49, 54-55. To be sure, confessions cruelly extorted may be and have been, to an unascertained extent, found to be untrustworthy. But the constitutional principle of excluding confessions that are not voluntary does not rest on this consideration. Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement. Since a defendant had been subjected to pressures to which, under our accusatorial system, an accused should not be subjected, we were constrained to find that the procedures leading to his conviction had failed to afford him that due process of law which the Fourteenth Amendment guarantees.”

The Supreme Court said further, at 544-45:

“The attention of the trial judge should have been focused, for purposes of the Federal Constitution, on the question whether the behavior of the State’s law enforcement officials was such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined — a question to be answered with complete disregard of whether or not petitioner in fact spoke the truth. The employment instead, by the trial judge and the Supreme Court of Errors [of Connecticut], of a standard infected by the inclusion of references to probable reliability resulted in a constitutionally invalid conviction, pursuant to which Rogers is now detained ‘in violation of the Constitution.’ A defendant has the right to be tried according to the substantive and procedural due process requirements of the Fourteenth Amendment. This means that a vital confession, such as is involved in this case, may go to the jury only if it is subjected to screening in accordance with correct constitutional standards. To the extent that in the trial of Rogers evidence was allowed to go to the jury on the basis of standards that departed from constitutional requirements, to that extent he was unconstitutionally tried and the conviction was vitiated by error of constitutional dimension.”

Citing Rogers v. Richmond, supra, the Supreme Court reiterated the rule in Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L.Ed.2d 908 (1964), when it said, at 376:

“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U. S. 534, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U. S. 401; Stroble v. California, 343 U. S. 181; Payne v. Arkansas, 356 U. S. 560. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. * * * .”

The right of a person not to be compelled to be a witness against himself in a criminal case is protected by the Fifth Amendment to the Federal Constitution and by Article 22 of the Declaration of Rights of the Constitution of Maryland. It was not, however, until the opinion of the Supreme Court in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), that there was established and spelled out a series of procedural safeguards effective to assure that an individual subjected to custodial police interrogation is accorded his privilege under the Fifth Amendment against self-incrimination. Miranda did not hold that a statement may not be taken from a person in the course of custodial interrogation. Indeed, it laid down the rule that after having been advised of them,

“The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444.

In its further discussion of the cases then before it, the Court said, at 457:

“In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest.”

We have indulged in the preceding discussion so that, by pointing out what is not under attack, we may focus upon what is under attack. We may take it as conceded that the statements made by the appellant were voluntary, in traditional terms. Likewise, it is not in issue here that the police demonstrated the use of procedural safeguards considered in Miranda to be effective to secure the privilege against self-incrimination, nor is it in issue that prior to any questioning on each of the four occasions of custodial interrogation, the police warned the appellant of his rights by reading them to him and by receiving his answer, as to each one, that he understood it. Each time, the warnings of his rights were followed by Greenwell’s expressed waiver of those rights, confirmed twice by his writing. There is no suggestion that the police did or said anything for the purpose of overbearing Greenwell’s will. In no way are the actions of the police in this case impugned.

Greenwell confessed that he committed the murders, and his confessions were voluntary. Before the questioning which preceded his confessions, the police told him of his basic right to remain silent, and of the other rights, such as the right to counsel, designed to effectuate that basic right. Appellant said that he understood those rights, and that he waived them.

We must determine, as did the court below, whether those waivers were voluntary. In the ordinary sense of the word voluntary, there can be no doubt. The waivers were not coerced or induced. When Mr. Chief Justice Warren said for the Supreme Court in Miranda that a waiver of the right must be made “voluntarily, knowingly and intelligently”, the Court did not mean, we take it, that the waiver must stand up under three different tests. We understand the words “knowingly and intelligently” to have been used to put a gloss on the word “voluntarily”, so that for the purpose of a waiver it carries with it a connotation that the volunteer is aware that he may not be compelled to incriminate himself, but has still decided to talk. It is the fact of his decision, not the wisdom of it, for which we look. Surely the word intelligently could not have been intended to mean wisely, for who is to judge, restrospectively, the ethical wisdom of telling the truth, even when it hurts.

We turn to the evidence at the suppression hearing which bore on the question of whether appellant knew what he was doing when he waived his rights and confessed. The question involves a constitutional right, so in our appellate review of the lower court’s ruling on admissibility of the statements, we make our own independent, reflective, constitutional judgment on the facts. Walker v. State, 12 Md. App. 684, 695, 280 A. 2d 260 (1971). To make the judgment that the statements were admissible, we must be persuaded, and find, by a preponderance of the evidence on the issue, Mulligan v. State, 18 Md. App. 588, 597-602, 308 A. 2d 418 (1973), that the appellant voluntarily, knowingly and intelligently waived effectuation of the safeguards designed to secure his privilege against compelled self-incrimination.

We find as a fact from the evidence that the appellant did make such a waiver, so that the statements he made to the police were properly admitted in evidence at his trial on the issue of guilt.

Deputy Sheriff Roe, the only police officer who was present at all four interrogations, had known the appellant for eight or nine years, and called him by his first name. Roe knew that the appellant had formerly worked for Barnes Electric, and at the time was a good employee of Stanley Taylor, of Taylor Electric. He said that appellant wires houses, wires electric panels, installs lights, takes care of service calls, and repairs electrical malfunctions. Apparently Roe himself did some electrical work on a part time basis, and saw and talked to appellant on jobs where he was working. Roe also said that he had conversations with appellant at times, and that appellant talked mainly about hunting, and was a hunting enthusiast. Roe said that he did not know anything about appellant’s educational background, or his reading or writing ability, but that he appeared to understand the English language.

Corporal Griffith, who gave appellant the polygraph, related in detail the preliminary conversations they had. He said that “Mr. Greenwell signed his name and carried on a perfectly good conversation and gave no indication at all that he could not read or write.”

Stanley Taylor, his employer, said that Greenwell “could do good work, but I would have to lay it out”, and that appellant required more instruction and supervision than the usual helper.

Expert opinion evidence was presented to the court by two witnesses. They were Dr. Ido Adamo, a psychiatrist and Acting Clinical Director of Clifton T. Perkins Hospital, where Greenwell had been examined and evaluated, and Dr. Dennis Harrison, a clinical psychologist, who testified that he had examined appellant for the specific purpose of evaluating his ability to understand the Miranda rights. Both classified Greenwell in the dull normal range on intelligence tests, and as functionally illiterate.

We see no purpose to be served by reciting in detail the various tests and other factors developed and considered by each of the experts which led each of them to the conclusion he expressed. So far as we are able to judge, each of the expert witnesses demonstrated a sound basis, in terms of the teachings of his professional discipline, for his conclusion.

Dr. Adamo, in the light of the overall staff evaluation at Perkins, found no evidence of a disorder which would have prevented Green well from understanding the Miranda warnings. He expressed his opinion: “He had the capacity to understand the Miranda warnings.”

Dr. Harrison found in the appellant ample evidence of a specific learning disability in the auditory and verbal processes. In his tests of understanding of various words and phrases, Dr. Harrison included some taken from the Miranda warnings. Some of his responses were considered acceptable, some were not. We think it is significant that to one of the most basic, the right to remain silent, the appellant responded, “You can keep your mouth shut.” Referring to a response which was acceptable, Dr. Harrison said, “that really didn’t dissolve the doubts I had in my mind at that point.” We think his conclusion reflected those doubts. He said: “I think he can understand some of the phrases, and I have reasonable doubt he could understand it fully and intelligently.”

Precise evaluation of the mental processes of another approaches the impossible. Even with the aid of trained and competent professionals, it is a difficult task. When necessity requires a decision, we must do the best we can. The opinions of the two experts in this case tend to lead to different conclusions. Both cannot be correct. We are convinced that the evidence, taken as a whole, preponderated in favor of the admissibility of the appellant’s statements.

Judgments affirmed.

      . For a more detailed statement of the facts as they appeared in evidence at the separate trial of Linda Sue Glazier, adopted daughter of Mr. and Mrs. Glazier, see the opinion of this Court in Glazier v. State, 30 Md. App. 647, 353 A. 2d 674 (1976), cert. denied, Court of Appeals, 23 June 1976.


author: Moylan, J„,

text:
    ALFRED FIDAZZO v. STATE OF MARYLAND
    [No. 1040,
    September Term, 1975.]

      Decided September 14, 1976.

    The cause was argued before  Orth, C. J., and Morton and Moylan, JJ.

      Alan Edgar Harris, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Richard D. Warren, State’s Attorney for Wicomico County, and Robert A. Eaton, Assistant State’s Attorney for Wicomico County, on the brief, for appellee.
   Moylan, J„,

delivered th® opinion of the Court.

The appellant, Alfred Fidazzo, was convicted in the Circuit Court for Wicomico County by Judge Richard M. Pollitt, sitting without a jury, of both breaking and entering and grand larceny. Neither the corpus delicti of the crime nor the criminal agency of the appellant are in factual dispute. A bag being carried by the appellant at approximately 6:45 a.m. on June 8, 1975, in Ocean City was full of cash and identifying envelopes taken from Lawrence’s Car Wash in Salisbury the evening before. At issue is the constitutional propriety of the investigative look into that bag.

Two officers gave their versions of the accosting of the appellant upon the Boardwalk, of his voluntary accompanying of them to the police station and of his consenting to their looking into the bag in question. The appellant gave a different version. In a very careful and precise finding of facts, Judge Pollitt found the testimony of the policemen to be credible and the testimony of the appellant to be not credible. In making our own independent constitutional judgment as to whether the consent to the search of the bag was voluntary, we give great weight to the findings by the hearing judge, with his superior opportunity to observe the demeanor of the witnesses, when it comes to the resolution of disputed first-level facts. Walker v. State, 12 Md. App. 684, 694-695. As we said in Walker, at 695:

“What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of voluntariness.”

From the first-level facts as found by the trial judge, we have no difficulty in concluding that the ultimate constitutional fact — that mixed question of law and fact or second-level fact — is that the consent to the search of the bag was freely and voluntarily given under the guidelines of Schneckloth v. Bustamonte, 412 U. S. 218 (1973). Indeed, the appellant does not seriously challenge the inevitability of a finding of voluntariness under Schneckloth’s traditional “totality of the circumstances” approach. The appellant rather chooses to rely upon footnotes 29 and 36 of the Schneckloth opinion which pointed out that Schneckloth deferred judgment as to whether its “totality of circumstances” approach would or would not apply in a custodial setting. The appellant urges upon us the proposition that whenever a custodial setting is involved, an arguable though disputed possibility in this case, a per se rule is called for mandating that a policeman warn a consenting defendant that he has the right to refuse the requested consent, with the absence of such warning automatically condemning the consent to the dustbin of unconstitutionality.

Whatever solace the appellant may have taken from the reservation of the question in Schneckloth was rudely dashed, however, by United States v. Watson, 46 L.Ed.2d 598 (1976). Watson makes it clear that the constitutional standard for judging the voluntariness of a consent is still the “totality of the circumstances” as described in Schneckloth. A per se rule demanding a warning as a sine qua non is not called for under the Fourth Amendment, even where custody is involved. As Watson said, at 609:

“[T]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.”

Absent the per se rule he seeks, the appellant cannot prevail. Under the “totality of the circumstances” approach of Schneckloth, we conclude, as did the trial judge, that the consent to the search of the bag was voluntary.

Judgments affirmed.


text:
    PAUL L. CHESTER v. STATE OF MARYLAND
    [No. 1117,
    September Term, 1975.]

      Decided September 15, 1976.

      The cause was argued before Powers and Menchine, JJ., and Richard M. Pollitt, Associate Judge of the First Judicial Circuit, specially assigned.

      George L. Russell, Jr., for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Henry Leuñn, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Menchine, J., delivered

the opinion of the Court.

Paul L. Chester (appellant), an elected Clerk of the Court of Common Pleas, went to trial before a jury in the Criminal Court of Baltimore under indictment 17401949 (Rasin, J., specially assigned, presiding). Initiated as a three count indictment, the State entered a nolle prosequi as to the second count prior to commencement of trial. At the conclusion of the State’s evidence a Motion for Judgment of Acquittal as to the third count was granted. The jury convicted under the first count and the appellant was sentenced to fine and imprisonment.

On appeal, appellant makes the following contentions:

“I. The Special Prosecutor Was Appointed Illegally.
II. Denial Of Access To Grand Jury Minutes Was Unwarranted.
III. The Evidence Was Insufficient To Support A Charge Of Malfeasance In Office.
IV. Submission Of Count One To The Jury After Dismissal Of Counts Two And Three Was Error.”

I.

The Prosecutor

On November 27, 1974, the State’s Attorney of Baltimore City filed a petition requesting the court to appoint “an Assistant State’s Attorney” pursuant to the Annotated Code of Maryland, Courts and Judicial Proceedings Article, § 2-102. On the same date twelve judges then assigned to and serving in the twelve parts of the Criminal Court of Baltimore, by joint order appointed John Henry Lewin, Jr., Esquire, as “Assistant Counsel for the State for the purpose of prosecuting the [Chester] case with full powers authorized under the laws of Maryland.” Under the signature of each of the said judges there was typed “JUDGE CRIMINAL COURT OF BALTIMORE.”

Appellant contends that Mr. Lewin’s appointment and subsequent service as assistant counsel for the State constituted reversible error. He maintains: (a) that appointment to such an office must be made by the Supreme Bench of Baltimore City — not by the Criminal Court of Baltimore; (b) that the failure to accord him notice and hearing prior to the appointment denied him due process under the Maryland and United States Constitutions; (c) that an order passed by the Chief Judge of the Court of Appeals on November 22, 1974 designating the Honorable George B. Rasin, Jr. (who was not a signatory to the appointment order) to preside as the trial judge in the case, operated to deprive the other judges of the Criminal Court of the power to appoint assistant counsel in that case; and (d) that Mr. Lewin was qualified to act as assistant counsel for the State only during the regime of the Honorable Milton B. Allen as State’s Attorney, his authority terminating as a matter of law with the qualification of the successor State’s Attorney.

(a) The Appointment

The case of State v. Ensor and Compton, 277 Md. 529, 356 A. 2d 259, is dispositive of this contention. The judges of the Criminal Court of Baltimore possessed the power to appoint assistant counsel for the State.

(b) Due Process

One accused of crime has no constitutional right to notice or hearing upon the question of who shall prosecute the case against him, when the assigned prosecutor regularly was appointed pursuant to a valid general law.

(c) The Designation of Judge Rasin

The designation of Judge Rasin in pertinent part authorized him “.. . to sit, either alone or with one or more other Judges, as a Judge of the Supreme Bench of Baltimore City assigned to the Criminal Court of Baltimore in the case of State of Maryland v. Paul L. Chester....”

The order of designation neither diminished the powers of the other judges assigned to the Criminal Court of Baltimore nor limited essential judicial action in the case exclusively to Judge Rasin.

(d) Duration of the Appointment

The appointment of Mr. Lewin was stated to be “for the purpose of prosecuting the [Chester] case with full powers authorized under the laws of Maryland.” The statute authorizing passage of that order plainly intended the powers of such an appointee to extend through the completion of the assigned duty. The fact that a change in the office of the State’s Attorney occurred subsequent to the passage of the court order in no way attenuated its legal effect.

Grand Jury Minutes

On June 11, 1975, approximately four weeks prior to the commencement of trial, counsel for appellant filed a Motion for Disclosure of Grand Jury Minutes. The motion, after asserting that such Minutes were “needed for the purposes of impeaching and/or testing the credibility of key prosecution witnesses,” alleged: (a) that “all the testimony bearing on the alleged unlawful acts will be concerning numerous private meetings and conversations over many months”; (b) “That from the posture of the case it is rather obvious that such key prosecution witnesses have already committed perjury”; and (c) “That a ‘particularized need’ for disclosure has been shown, as more fully set forth in the accompanying Memorandum of Law.”

In Silbert v. State, 12 Md. App. 516, 280 A. 2d 55 (1971), cert. den. 263 Md. 720,Chief Judge Murphy (now Chief Judge of the Court of Appeals of Maryland) for this Court collected and discussed the cases dealing with the circumstances under which grand jury transcripts will be required to be disclosed to an accused. After pointing out that a “particularized need” must be demonstrated before access to grand jury minutes may be had, Judge Murphy declared that the issue “is one of fact to be decided in each case; there is and can be no general test.” Id. at 523, 280 A. 2d at 60.

We shall examine the record to determine whether a “particularized need” has been shown. It appears from the record that the State, pursuant to an order of the trial judge, filed in the proceedings a bill of particulars of the first count of the indictment reading in pertinent part as follows:

“1. The names of those persons whom the State contends were the subjects of Defendant’s attempt to coerce and intimidate are: Roland Keller, Peggy J. Washington, Patricia Bertorelli, John Wankmiller, Francis Sherry, Randall Carroll, Arthur Sindler, Nicholas Possidente, Lolita Fales, Genevieve Salfner, John Henry Winkler and Krystal Marie Garner Halloway.
2. The circumstances under which the State contends that Defendant engaged in the conduct and acts charged are a meeting held at approximately 4 p.m. on January 11, 1974 in his office on the first floor of the Courthouse at which time Defendant made some of the statements which are described generally in the State’s Answer to Item 2 of Defendant’s Motion for Discovery.”

Moreover, the record shows that upon application of the appellant, the trial judge, inter alia, required the State (a) to furnish the names and addresses of the witnesses against him whom the State intended to call to prove its case in chief; (b) to furnish the defendant with the substance of the alleged oral statements attributed to the defendant; and (c) to furnish the defendant with all evidence whether verbal or written which is exculpatory in nature.

It was manifest that all of the witnesses disclosed in the State’s bill of particulars and in the State’s answer to the discovery motion were available for interviews by the appellant prior to trial. There is no substantial departure by the witnesses from the particularization of the events as recited in the State’s bill of particulars, or answer to Motion for Discovery. The witnesses at trial were sequestered. Extensive cross-examination produced neither substantial conflict in the testimony of any witness individually nor substantial disagreement in the totality of the testimony of all witnesses inter sese. No witnesses were called in behalf of the appellant. In sum, the evidence of what was said and done by the appellant is without contradiction.

Claim to a “particularized need” requires delineation of the facts tending to support the contention. Something more must be shown than mere surmise or speculation that the testimony of a witness at trial may be inconsistent with his testimony before the grand jury. In the subject case no factual base supporting the claim has been shown.

In such circumstances, what we said in Grimm v. State, 6 Md. App. 321, 331-32, 251 A. 2d 230, 236-37 (1969), cert. den. 255 Md. 741 (1969), U. S. cert. den. 397 U. S. 1001 (1970), is particularly applicable here:

“Finally, appellant contends that the trial court erred in denying his motion for the production of the Grand Jury testimony of Sergeant Louis Roemer. The contention appears based on the proposition that Roemer’s testimony at trial revealed that he was the only witness who testified before the Grand Jury and that his testimony was insufficient to justify the indictment. Appellant claims that he was therefore seriously prejudiced by his inability to impeach Roemer at the trial through use of his testimony before the Grand Jury.
“It is the well settled rule that the competency of testimony before the Grand Jury will not be inquired into by the courts and the alleged insufficiency of such evidence is no ground to dismiss an indictment. Costello v. United States, 350 U. S. 359; Pick v. State, 143 Md. 192; Wilson v. State, 4 Md. App. 192. Equally well settled is the proposition that there is no absolute right to inspect the testimony of a witness before a Grand Jury. Dennis v. United States, 384 U. S. 855; Pittsburgh Plate Glass Company v. United States, 360 U. S. 395. At the very most, Dennis makes clear that it is only upon a showing of a ‘particularized need’ that an accused might be entitled in a proper case to such disclosure. See Wilson v. State, supra (Footnote 10), and Chesley v. State, 3 Md. App. 588 (Footnote 7). We think the trial judge was entirely correct when, in denying appellant’s motion, he said:
‘* * * there is no showing in this case of any particularized need nor anything about this case that would bring it within the exception. If this defendant is entitled to a transcript of the Grand Jury proceedings then I cannot think of any criminal cases, be it felony or misdemeanor, where a defendant could not obtain the Grand Jury testimony, and that is not the law of Maryland.’ ”

See also: Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975).

We perceive no error.

III.

Sufficiency of the Evidence

There was evidence from which the jury could find:

That Paul Chester, elected Clerk of the Court of Common Pleas, in January 1974 called a meeting of the clerical staff of his office in room 140 of the Court House in Baltimore City. After preliminary comments about office policy respecting absenteeism and tardiness, he advised the group that he was running for re-election; that he intended to win the election and that he expected his employees to purchase $150 worth of tickets for a political fund raising affair. He indicated disappointment with his employees’ response to an earlier fund raising attempt and declared that he would not be undermined from within. He terminated the meeting with a statement to the effect that he would be in office after the next election and that if the clerks did not cooperate they would not be, and declared that an earlier memorandum that he circulated to the employees indicating that nothing would happen to the clerical staff by reason of the forthcoming election “was strictly for the press, television and radio.”

Appellant contends that an essential element of the offense charged is a showing that the misconduct of a public officer related solely to the conduct of official matters or interfered with the administration of his public duties and responsibilities. From this premise he argues that where “no direct interference with public duties has been proven, even if the conduct in question constitutes criminal behavior, the public official, albeit responsible for his acts, has not, however, committed the crime of malfeasance.”

His principal reliance for that position stems from the decision of the Superior Court of Pennsylvania in the case of Commonwealth v. Blatstein, 332 A. 2d 510 (1974), wherein the Court said at 515:

“In order to show misconduct in office, it is not sufficient to show that Blatstein solicited or even accepted a bribe. The commonwealth must demonstrate that Blatstein followed the course of conduct which the bribe sought to secure. As Professor Perkins has said:
‘The corrupt receipt of a bribe by an officer, for example, is criminal misconduct of one while in office, but such a recipient is clearly not acting in the exercise of the duties of his office, nor is this wrongful act under color of his office, and bribery has always been recognized as a separate offense. In fact, if an officer corruptly receives a bribe and then corruptly does what he has been bribed to do, he is guilty of both bribery and misconduct in office.’ (Emphasis added.) R. Perkins, Criminal Law 482 (1969).
Since proof of solicitation of a bribe does not necessarily entail proof of misconduct in office, the Commonwealth had to show that Blatstein acted upon his offer to Sherry in advising the committee. In failing to do so, which the Commonwealth virtually admitted at trial, it failed to prove that Blatstein was guilty of misconduct in office. The Commonwealth having failed in its proof of this necessary, additional element, the lower court erred when it dismissed appellant’s motion in arrest of judgment on the indictment charging malfeasance, misfeasance and nonfeasance in office.”

A quite different view of the offense was taken in Wallace v. State, 211 A. 2d 845 (S. Ct. Del., 1965), wherein the Court said at 850-51:

“The crime of malfeasance in office is intended to deter public officers acting in their official capacities from committing corrupt and unlawful acts in disregard of the high standard of integrity to which such officers are held by virtue of the fiduciary nature of their duties. To hold, as the defendant contends, that there was no evidence of malfeasance in this case simply because there was no evidence of wrongful performance of a required official act, i. e., the casting of a vote, would be to take an unduly narrow view of malfeasance in office. Sufficient evidence to support a charge of malfeasance is presented when it is shown that the defendant has committed an unlawful act and such act may affect or is connected with his official duties. State ex rel. Martin v. Burnquist, 141 Minn. 308, 170 N. W. 201, 609 (1918); State ex rel. v. Ward, 163 Tenn. 265, 43 S.W.2d 217 (1931).”

The late Judge Ogle Marbury, speaking for the Court of Appeals of Maryland, in State v. Carter, 200 Md. 255, 89 A. 2d 586 (1952), discussed in considerable depth the common law offense of misconduct in office, in the course of which he said at 262, et seq. [589]:

“The indictment in this case is captioned: ‘Malfeasance in Office’, but as the Court of Appeals of Georgia has well said in a similar situation: ‘ * * * it is well established by numerous decisions of the Supreme Court and this court that the name of a crime given in an indictment does not determine the offense alleged to have been committed by the accused, but the offense is determined by the facts stated in the indictment.’ Cargile v. State. 67 Ga. App. 610, 21 S. E. 2d 326, 327. Nearly one hundred years ago (1855), the Supreme Judicial Court of Massachusetts announced the following definitions, with its authority therefor: ‘Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all. 2 Inst. Cler. 107. 2 Dane Ab. 482.1 Chit. Pl. (6th Amer. ed.) 151. 1 Chit. Gen. Pract. 9.’ Bell v. Josselyn, 69 Mass. 309, 311, 3 Gray 309, 311. These are the definitions which, with some enlargement, seem to run through all of the text books and cases. See Words and Phrases, Permanent Edition, Vol. 26, p. 139, et seq., Title, Malfeasance, and Vol. 28, p. 722, et seq., Title, Nonfeasance, and the numerous cases cited which make the same distinction. In Webster’s International Dictionary, 2nd Edition, malfeasance is defined as: ‘The doing of an act which a person ought not to do; evil conduct; an illegal deed; — often used of official misconduct or an instance of it.’ Misfeasance is defined as: ‘The doing wrongfully and injuriously of an act which a person might do in a lawful manner; the doing of a lawful act in an unlawful manner, or the wrongful and injurious exercise of lawful authority.’ The State contends that malfeasance carries with it the connotations of wilfulness, evil intent or motive, and corruption, and cites a number of cases to support this view, but all of these cases contain in one form or another the definitions above mentioned. Carlisle v. Burke, 82 Misc. 282, 144 N. Y. S. 163, 164. State, ex rel. Knabb v. Frater, 198 Wash. 675, 89 Pac. 2d 1046. Lucas v. Central Missouri Trust Co., 350 Mo. 593, 166 S. W. 2d 1053, 1056. State v. Bolitho, 103 N. J. L. 246, 136 A. 164, 172. State, ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 92 A. L. R. 988. It is undoubtedly true that the doing by a public official of an act which he ought not to do carries with it some measure of wilfulness and bad intent, and may be induced by corrupt motive, but these are only necessary or probable accompaniments. They may also accompany the doing of a lawful act unlawfully, which is misfeasance. The test seems to be in the nature of the act, and not in the motive by which it is done.
“The cases in this court do not always call misconduct in office by either one of the two terms, malfeasance or misfeasance, but when they do use the words, they seem to recognize the distinction. In Consolidated Gas Co. v. Connor, 114 Md. 140, 78 A. 725, 32 L. R. A., N. S., 809, a civil case, nonfeasance and misfeasance are given the usual definitions above mentioned. Hiss v. State, 24 Md. 556, was an indictment against a justice of the peace. A defendant had been brought before this officer, accused of stealing bank notes. He was searched and certain bank notes were taken from him and delivered to the justice. The justice, however, refused to turn them over to the person entitled to them, and the indictment said that this was done ‘unlawfully, wilfully, oppressively, corruptly, and in violation and contempt of his duty’. The court there held that all the elements of crime were enumerated in the indictment and upheld it, but it did not describe the crime charged by any particular name. It said: ‘It is immaterial whether the law imposed upon him the duty to receive the property, (of which we express no opinion,) it was received by him, under color of his office, if not “virtute officio”, and there can be no doubt of his legal obligation to restore it to the person entitled.’ (24 Md. 562.) The court expressly declined to decide, as immaterial, whether the defendant was doing something he had a right to do, unlawfully, or whether he was doing something which he had no right to do at all.”

Although Blatstein, supra, cited a portion of its text to support the decision, Perkins Crim. Law 2d Ed.-UTB, at 482-83, in dissertation upon the common law offense makes clear that its impact is wide ranging and comprehensive:

“D. MISCONDUCT IN OFFICE (OFFICIAL MISCONDUCT)
The prevention of outside influences tending toward corruption is not the only social interest in the official action of public officers. It is socially desirable, so far as reasonably possible, to insure that no public officer shall, in the exercise of the duties of his office or while acting under color of his office, (1) do any act which is wrongful in itself — malfeasance, (2) do any otherwise lawful act in a wrongful manner — misfeasance, or (3) omit to do any act which is required of him by the duties of his office — nonfeasance. And any corrupt violation by an officer in any of these three ways is a common-law misdemeanor known by some such name as ‘misconduct in office’ or ‘official misconduct.’
1. UNDER COLOR OF OFFICE
The mere coincidence that crime has been committed by one who happens to be a public officer is not sufficient to establish official misconduct. For this offense it is necessary not only that the offender be an officer, or one who presumes to act as an officer, but the misconduct, if not actually in the exercise of the duties of his office, must be done under color of his office. On the other hand the act of one who is an officer, which act is done because he is an officer or because of the opportunity afforded by that fact, is under color of his office despite his gesture of removing his badge plus his statement that he is not acting in the name of the law.” (Emphasis added; Footnotes omitted.)

Hochheimer, Crimes and Criminal Procedure 2d Ed., also emphasizes the breadth of the offense, saying at § 383:

“MALFEASANCE AND MISCONDUCT IN OFFICE
§383. General Doctrines. — Any act or omission in breach of official duty and any act of oppression under color of official authority by any public officer is, as a general rule, punishable as a misdemeanor. ‘Public officer’ means any one holding employment or appointment under the government. A de facto officer is a public officer within the meaning of this section. An officer is not, however, punishable for the acts of his deputies or subordinates in which he does not participate.
The following acts and omissions of public officers are misdemeanors: neglect or nonperformance of any positive duty imposed by law; oppressive and wilful abuse of authority (to be distinguished from mere error of judgment); extortion; fraud or breach of trust affecting the public, such as rendering, passing or procuring false accounts, or wilfully neglecting to account for money received, or corruptly retaining money found upon a prisoner; grossly indecorous conduct, such as sitting as a justice while drunk, or getting drunk during time of service as a grand juror.” (Emphasis added; Footnotes omitted.)

Elrod v. Burns, 427 U. S. 347 (1976), 44 L. W. 5091, although not precisely apposite serves to illustrate the basic impropriety of the course of action followed by the appellant. In Elrod, the Supreme Court of the United States held that threats to discharge non-merit system employees of a county sheriff for the sole reason that they were not affiliated with or sponsored by the party of the newly elected sheriff, was inpermissible action. Indeed, the plurality opinion by Mr. Justice Brennan (Justices White and Marshall concurring) urged that constitutional limitations forbade resort to such a course, saying at 355-56 [ 5094]:

“Since the average public employee is hardly in the financial position to support his party and another, or to lend his time to two parties, the individual’s ability to act according to his beliefs and to associate with others of his political persuasion is constrained, and support for his party is diminished.
“It is not only belief and association which are restricted where political patronage is the practice. The free functioning of the electoral process also suffers. Conditioning public employment on partisan support prevents support of competing political interests. Existing employees are deterred from such support, as well as the multitude seeking jobs. As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial and otherwise. Patronage thus tips the electoral process in favor of the incumbent party, and where the practice’s scope is substantial relative to the size of the electorate, the impact on the process can be significant.”

The plurality opinion went on to say at 359-60 [5095]:

“Patronage practice falls squarely within the prohibitions of Keyishian [] and Perry.[ ] M Under that practice, public employees hold their jobs on the condition that they provide, in some acceptable manner, support for the favored political party'. The threat of dismissal for failure to provide that support unquestionably inhibits protected belief and association, and dismissal for failure to provide support only penalizes its exercise. The belief and association which Government may not ordain directly are achieved by indirection. And regardless of how evenhandedly these restraints may operate in the long run, after political office has changed hands several times, protected interests are still infringed and thus the violation remains.”

The concurring Justices (Stewart and Blackmun) although declining to adopt the constitutional limitation, said at 375 [5099]:

“The single substantive question involved in this case is whether a nonpolicy making, non-confidential government employee can be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the Court that he cannot.”

Although Clerks of Court have a considerable constitutional autonomy, Maryland Constitution Article IV, §§25 and 37, the employment of deputy clerks is not a matter directed to a Clerk’s discretion. In State, use of Smith v. Turner, 101 Md. 584, 61 A. 334 (1905), it was said at 590-91 [337]:

“There is no discretion as to the employment of deputy clerks. Under the 26th section of Art. 4 of the Constitution, the duty to appoint is imperative. There is no absolute discretion as to whom the clerk shall appoint. He can appoint no one without the approval of the Judge of his Court, nor can he retain him if found by the Judge to be incompetent or negligent, and the only reason for these provisions is that the proper performance of the duties of the office, so many of which can only be performed with due promptness by the aid of deputies, may be guaranteed to the public. He cannot appoint a greater number of deputies than the Court deems necessary for the discharge of the duties of the office, and he cannot refuse to appoint such number as the Court may require. He cannot himself fix and limit the salaries to be paid to his deputies, but must allow such as the Comptroller of the State shall determine to be just and proper. The manifest purpose of this provision is to prevent the wrongful absorption of the receipts of the office by excessive salaries on the one hand, and to secure the services of competent persons by the assurance on the other hand of just and reasonable compensation. In no clerk’s office in the State would it be possible for the clerk unaided to perform all the clerical work when and as it should be done for the protection of the public, and it was this consideration which caused the framers of the Constitution to embody in that instrument the duty of appointing deputies, and the power of confirmation and supervision conferred upon the Court. Deputies are not mere servants or agents of the clerk; they are agents and officers of the Court, being appointed, in the language of the Constitution, ‘to perform together with (the clerks) themselves the duties of the said office.’ ”

See also: Maryland Constitution Article IV, § 26.

The Clerk of Court occupies a particularly sensitive position of public trust. The proper administration of his office entails the closest relationship and cooperation of his staff with the courts themselves. Public confidence in the even and equal administration of justice will be eroded unless the highest standards of official conduct are recognized and heeded by judges and the agents and officers of the court alike.

We are persuaded that the described actions of the appellant making demand for political contributions and coupling that demand with the threat of discharge from office unless that demand is met, fall within the boundaries of the common law offense of misconduct in office. We have no doubt that the conduct ascribed to the appellant by the witnesses is calculated to affect the efficient operation of the clerk’s office and to destroy the indispensable insulation of the courts from political activity. The threat itself is the gravamen of the offense, its implementation not an essential. The evidence was legally sufficient to convict.

IV.

Submission of Count One to the Jury

Appellant contends that actions taken in the trial court upon counts two and three of the indictment compel reversal of the conviction under count one. Resolution of the question requires recitation of the material language of the several counts.

Count one, after reciting that appellant was elected, qualified and acting as Clerk of the Court of Common Pleas, alleged that appellant “while acting under color of the said office, unlawfully, wilfully, corruptly, knowingly, contemptuously and improperly ... did unlawfully obligate certain employees in the said office of the Clerk of the Court of Common Pleas [a] to contribute money to his political campaign for re-election to said office and render political services to him in connection with his said campaign for re-election to said office.... and [b] did unlawfully engage in acts and conduct for the sole purpose of coercing and intimidating certain employees in the said office of the Clerk of the Court of Common Pleas to contribute and donate goods, materials, services and monies to his campaign for re-election to the Clerkship of the said Court of Common Pleas, ...” The count went on to state that the two allegations were in violation of Code Article 33, § 28-1 and Code Article 27, § 562A, respectively.

Count two charged that the accused had violated Article 33, § 28-1 subsection C.

Count three charged that the accused had violated Article 27, § 562A.

The pre-trial nolle prosequi as to the second count was declared by the State to have been entered because the subsection “fails to state a criminal offense under Maryland law.” Such an entry as to one count of an indictment does not bar prosecution under another. Williams v. State, 7 Md. App. 241, 245, 254 A. 2d 376, 378 (1969), cert. den. 256 Md. 749 (1970).

The trial court granted the motion for acquittal as to the third count upon the ground that “this Court cannot find that this evidence supports the facts that there was a political association or organization involved in the election of the Defendant, and the Court does riot believe that this language is sufficiently descriptive to include an individual who is soliciting contributions from others for election.” Otherwise stated, the trial judge granted the motion for acquittal as to the third count because he believed that there had been a failure of proof as to one of the necessary elements of the statutory offense. That decision having been favorable to the accused, its correctness is not before us. Accordingly, we shall assume, without deciding, that an essential element of the statutory offense was lacking. Nonetheless, the grant of the motion for acquittal as to the third count did not affect the validity of the conviction as to the first count. The missing element of the statutory offense was not a necessary element of the common law offense.

There is not the slightest indication that the legislature, by the passage of Article 33, § 28-1, subsection C or Article 27, § 562A, intended to eliminate or to amend the common law offense of misconduct in office. The allegations of fact contained in the first count of the indictment are sufficient to constitute a charge of common law misconduct in office.

Under quite similar circumstances, it was said in Lutz v. State, 167 Md. 12, 17, 172 A. 354, 357 (1934):

“It follows that, as the first count of each indictment describes an offense cognizable at common law, and since that law as to that offense has not been repealed, and since each count concludes ‘against the peace, government and dignity of the state,’ the demurrers to them were properly overruled. The additional allegation in the Lutz case that the offense charged was against the form of the statute may be disregarded as surplusage.”

In the subject case also, the allegation that the offense charged was in violation of Article 33, § 28-1, subsection C and of Article 27, § 562A properly may be disregarded as surplusage. The first count sufficiently charged a common law offense. The proof was legally sufficient to support the charge.

Judgment affirmed.

Costs to be paid by appellant.

      . Authorized by Maryland Constitution Article IV, § 18A; Maryland Rule 1202 a. 1.

      . The memorandum of law contained no further recitation of facts to support a “particularised need.”

      . The State’s answer listed the names and addresses of 17 persons, of whom eight ultimately were called as witnesses for the State.

      . The statement detailing the alleged comments of the appellant at the office meeting on January 11,1974 was substantially as recited infra in the summary of the testimony of the witnesses under Part III hereof.

      . The State’s answer listed the names and addresses of five employees of the clerk’s office who had claimed “either (a) that Defendant aid not make the oral statements generally described in answer to Item 2 herein, (b) that they do not recollect or recall Defendant having made said statements, or (c) that if said statements were made, it was not heard because (1) the listener was not paying attention, (2) the listener’s mind ‘phased off or (3) said oral statement did not concern the listener.”

      . Keyishian v. Board, 385 U. S. 589 (1967).

      . Perry v. Sindermann, 408 U.S. 593 (1972).

      . Article 33, § 28-1. reads as follows:
      “Participation in politics or political campaigns and the free expression of political opinions by employees of this State or of any county, municipal corporation, city, political subdivision, public authority, body political or board of education shall not be prohibited, and each employee shall retain all rights and obligations of citizenship provided in the Constitution and laws of the State of Maryland, and in the Constitution and laws of the United States of America; however, no such employee shall:
      (a) Engage in political activity while on the job during working hours;
      (b) Advocate the overthrow of the government by unconstitutional and violent means; or
      (c) Be obligated to contribute or render political service.”

      . Article 27, § 562A. reads as follows:
      “(a)_ Prohibited acts. — It is unlawful for any person, group or organization to engage in any act or conduct for the sole purpose of coercing or intimidating another person to contribute or donate any goods, materials, services, or moneys to any social, economic, or political association or organization.
      (b) Labor picketing not prohibited. — Nothing herein shall be deemed to prohibit any picketing assembly in connection with a labor dispute as that term is defined in Article 100, § 74 of the Annotated Code of Maryland (1964 Replacement Volume), title ‘Work, Labor and Employment,’ subtitle ‘Injunction, as amended from time to time.
      (c) Penalties. — Any person found guilty of violating this section shall be punished by a fine of not more than $100 or by imprisonment for not more than 90 days or both. Each day in which a violation of this section occurs constitutes a separate offense. (1972, ch. 721.)”


author: Levine, J.,

text:
    RICKY ANDRE TATE and DANIEL CORNELIUS HALL v. STATE OF MARYLAND
    [No. 1138,
    September Term, 1975.]

      Decided September 15, 1976.

      The cause was argued before Marvin H. Smith and Irving A. Levine, Associate Judges of the Court of Appeals, and Perry G. Bowen, Jr., Associate Judge of the Seventh Judicial Circuit, all specially assigned.

      George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Dennis M. Henderson, Assistant Public Defender, on the brief, for appellants.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Charle^ P. Strong, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Levine, J.,

delivered the opinion of the Court.

Appellants, Ricky Andre Tate and Daniel Cornelius Hall, were found guilty of rape, two counts of kidnapping, and unlawful use of a handgun in the commission of a crime of violence after a jury trial in the Circuit Court for Prince George’s County (Bowie, J.). Both appeal their convictions. We affirm.

Evidence presented at trial, if believed, supports the following statement of facts. In the late evening of March 1, 1975, Calvin Williams, who was working as a cab driver, drove to an address in Prince George’s County pursuant to a call from the company dispatcher. He was at that time in the company of a female friend, Marjorie Todd. Appellants entered the cab at the Prince George’s County address and directed Williams to take them to an address in the District of Columbia. Upon reaching their destination, Hall pointed a gun at Williams and said, “This is a holdup,” whereupon Williams surrendered $30. Tate then took control of the cab, and with Williams in the front seat beside him, and with Hall and Todd in the rear seat, he continued driving on a journey lasting some hours. Several stops were made, and on one of these occasions, in Riverdale in Prince George’s County, Williams was ordered out of the cab. During the course of this odyssey, Todd was repeatedly raped by Hall. Finally, after delivering Hall at his residence in the District of Columbia, Tate, now in possession of the gun, took Todd to his mother’s house in Prince George’s County where, in his own bedroom, he proceeded to rape her. Todd was permitted to depart in the morning.

I

The first issue raised by appellants concerns the jurisdiction of the Maryland court to try them for the kidnappings which they urge occurred in the District of Columbia. Though not raised below, such issues of subject matter jurisdiction may, of course, be raised on appeal. Maryland Rule 1085; Wilson v. State, 21 Md. App. 557, 571, 321 A. 2d 549, cert. denied, 272 Md. 751 (1974); see Resh v. Resh, 271 Md. 133, 137, 314 A. 2d 109 (1974).

The undisputed evidence adduced at trial shows that appellants forcibly abducted Todd and Williams, if at all, in the District of Columbia, and then transported them to and within the State of Maryland. Appellants argue that because the abduction occurred outside Maryland, the Maryland courts are “without jurisdiction” to try them for the offense. We do not agree.

At common law, kidnapping is defined as the forcible abduction and carrying away of a man, woman or child from his own country into another. Clark & Marshall, Law of Crimes § 10.23 (7th ed. 1967); 4 W. Blackstone, Commentaries *219. It is an aggravated form of false imprisonment, embracing all of the elements of that offense and adding to it an asportation of the victim out of his own country. See Hunt v. State, 12 Md. App. 286, 310, 278 A. 2d 637, cert. denied, 263 Md. 715 (1971); Perkins, Criminal Law 176 (2d ed. 1969). The principal source of the aggravation lies in the carrying of the victim beyond the protection of the laws of his country. See 1 R. Anderson, Wharton’s Criminal Law and Procedure § 371 (1957).

In Maryland the crime of kidnapping is controlled by statute, and though the crime as statutorily defined is based on the common law offense, several relevant changes have been made. Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 337 provides:

“Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person . .. with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony.. ..” (emphasis added).

First, it is made clear in § 337 that a forcible carrying away of the victim is not required. Among the common law authorities there was some dispute as to whether a carrying with consent, fraudulently obtained, constituted kidnapping. See Annot., 95 A.L.R.2d 450 (1964). Fraudulent carrying does constitute kidnapping under § 337. See Shrader v. State, 10 Md. App. 94, 99-100, 268 A. 2d 257 (1970).

Secondly, the common law requirement that the victim be carried out of his own country (or state) has been modified. Carrying within the state is sufficient to make out the § 337 offense. Midgett v. State, 216 Md. 26, 38, 139 A. 2d 209 (1958). And finally, an abduction, a forcible “carrying away,” is not necessary to kidnapping as defined in § 337. The determinative element is the carrying itself. Compare State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; 110 (1935).

In sum, whatever might be said of the common law offense, it is apparent, in light of the changes wrought by § 337, that the gist of the offense of kidnapping in Maryland is unlawful confinement coupled with transportation of the victim. Cf. Collier v. Vaccaro, 51 F. 2d 17, 19 (4th Cir. 1931). The initial assaultive taking of the person and the carrying out of the state required at common law are not part of the § 337 offense. Thus, since the undisputed evidence shows that the victims here were unlawfully confined and carried forcibly within this state, a violation of § 337 based solely on acts committed within the state was established. The circuit court therefore had jurisdiction to try appellants for the offense.

II

During cross-examination, the state’s attorney asked Tate, over objection of counsel, if he knew that he could “also get much less than [life imprisonment] in the discretion of the Court.” Appellants contend that because of this questioning, the jury was impermissibly informed of the discretion of the court in passing sentence.

The Court of Appeals held in Shoemaker v. State, 228 Md. 462, 468-74, 180 A. 2d 682 (1962), that it was improper for a prosecutor to make reference to such possibilities as the right of appeal, the possibility of executive clemency or parole, and so forth. The danger recognized in Shoemaker is that such information is irrelevant and tends to suggest “to the jury that it might in part shift its responsibility for a finding of the defendant’s guilt to some other body.” Id., 228 Md. at 469. We recognize that such a danger may also exist in informing the jury of the discretion of the trial judge in passing sentence.

Here, however, the discussion of possible sentencing was initiated by one of the defendants. Tate was first asked by counsel in direct examination, and over objection by the state’s attorney, whether he knew that the crime of rape carried a penalty of life imprisonment. Thus, the defense opened the door, making what had been irrelevant testimony relevant to an issue then in the case. It was not error for the trial court to permit such cross-examination to rebut what was offered, over objection, on direct examination and counteract the resulting prejudice to the State’s case. See Gorsuch v. Rutledge, 70 Md. 272, 276, 17 A. 76 (1889); Milburn v. State, 1 Md. 1, 14 (1851).

Ill

Appellants also assign a supposed error in the instruction given to the jury by the trial court. No objection was made to the instruction, however, in the court below, and that issue is not, therefore, properly before us on appeal. See Maryland Rule 756 g. Nor can we understand appellants’ contention that there was plain error, within the meaning of Rule 756 g, entitling this Court to take cognizance of it when appellants concede that the instruction given was technically correct.

IV

At the trial a wallet identified as belonging to the cab driver, Williams, which had been found by police officers in Tate’s bedroom, was admitted into evidence over objection. Appellants argued below, as they do now, that the wallet was obtained by the police as a result of an illegal search and seizure.

The purported authority for the search of the bedroom was the consent of Tate’s mother, Dorothy E. Harper, the search being without a warrant. It seems that Officers Seckel, Warner and others went to the Harper house, described to them by Todd. Upon being admitted to the house, the officers asked Harper the whereabouts of her son and received permission to search the house for him. Later, according to Warner, Harper gave him permission to conduct a search of the house for evidence. Harper denied this at trial, but the issue being one of credibility, the trial court was free to reject Harper’s version and accept the testimony of the officers; indeed, we do not understand appellants to challenge on appeal the finding that consent for a search was given by Harper.

The thrust of appellants’ argument is that Harper lacked authority to consent to a search of her son’s bedroom. The undisputed testimony indicates that Harper was the owner of the house and that Tate, her 17-year-old son, was the sole user of an upstairs bedroom for which he paid no rent. Tate apparently had begun using the room only two or three weeks prior to the day of the search.

That the consent of one who possesses common authority over premises is valid against an absent, nonconsenting person with whom authority is shared is now well settled. United States v. Matlock, 415 U. S. 164, 170, 94 S. Ct. 988, 39 L.Ed.2d 242 (1974); see Coolidge v. New Hampshire, 403 U. S. 443, 487-90, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971). The sole question here, then, is whether, under these circumstances, Harper, as sole owner of the premises and parent of the objecting, nonconsenting minor, possessed common authority over or other sufficient relationship to the premises as to authorize her consent. We believe that she did.

This issue of third party consent was addressed under strikingly similar circumstances by this Court in Jones v. State, 13 Md. App. 309, 283 A. 2d 184 (1971), cert. denied, 264 Md. 749 (1972). In that case the mother of a 20-year-old defendant gave permission for a search of his bedroom. There, as here, the mother testified that her son’s bedroom was his alone, but that he paid no rent. The Court found as dispositive, in upholding the validity of the search, the fact that:

“Appellant’s mother had the sole control, power and superior right to exclude others, including the appellant, from her home, and also from the very bedroom that the appellant used. It was her free and voluntary choice to allow the police to search her house.” Id., 13 Md. App. at 315 (citations omitted).

While it is true that in Jones the defendant was present and offered no objection when consent for the search was given, we do not consider that fact significant. What is crucial and dispositive, in our view, is that Harper possessed not only a common authority with Tate over the searched premises, but in fact possessed superior authority under these circumstances, including the right to exclude him from the premises.

Appellants rely heavily for their argument on a footnote in United States v. Matlock, supra, 415 U. S. at 171 n.7, where the Supreme Court noted that:

“Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U. S. 610 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U. S. 483 (1964) (night hotel clerk could not validly consent to search of customer’s room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” (emphasis added).

Their reliance is misplaced, however, since it is clear, from the authorities cited by the Court, that in cautioning against a determination based on property rights alone, the Court had in mind the situation, for example, where title to the premises is vested in the one giving consent, but the right of possession is vested in the defendant.

In a case such as this, where the one giving consent possesses complete ownership, control and right of possession, the question is quite different. Nor is this a case involving the search of personal effects. See, e.g., United States v. Bussey, 507 F. 2d 1096, 1097 (9th Cir. 1974); State v. Evans, 45 Haw. 622, 372 P. 2d 365, 372 (1962): We therefore hold that the consent for the search was valid.

Judgments affirmed.

      . We note a probable lack of standing in the case of appellant Hall to raise this issue since it nowhere appears that he had any interest in the premises subjected to the search. See Duncan and Smith v. State, 27 Md. App. 302, 304, 317, 340 A. 2d 722 (1975), rev’d on other grounds, 276 Md. 715, 351 A. 2d 144 (1976).