author: Thompson, J.,

text:
    ANGELO N. AMABILE et ux. v. JOSEPH I. WINKLES et ux.
    [No. 408,
    September Term, 1976.]

      Decided January 5, 1977.

    The cause was argued before Thompson, Moylan and Liss, JJ.

      Richard J. DiPasquale for appellants.

      Charles E. Wehland, with whom were .Ronald L. Spahn and Wehland & Spahn, P.A. on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

This case is before this Court for the second time. Our initial opinion is reported in Amabile v. Winkles, 24 Md. App. 292, 330 A. 2d 473 (1975). The case was also before the Court of Appeals, and that Court’s opinion is reported in Amabile v. Winkles, 276 Md. 234, 347 A. 2d 212 (1975). Reference should be made to those two opinions for a more complete statement of facts than is necessary for this opinion.

In the original proceedings the chancellor found that the appellees, the Winkles, were entitled to a right-of-way across the land of the appellants and to an injunction requiring the appellants to remove all obstructions in the right-of-way as shown on a plat entitled “Podolak Plat”, which is reproduced as an appendix to the Court of Appeals’ opinion, Amabile, supra at 245. On the initial appeal to this Court, the Amabiles, also the appellants in that case, complained that the two ends to the right-of-way were not connected. We noted that in his opinion the chancellor had stated that the Winkles were entitled to a right-of-way as shown not only on the Podolak Plat but on a second topographic plat made by Purdum and Jeschke December 19, 1967, also reproduced as an appendix to the Court of Appeals’ opinion, supra at 246. We directed that the decree be modified to accord with the opinion of the chancellor in showing the rights-of-way delineated on both plats. The Court of Appeals in Amabile v. Winkles, supra, affirmed, as did we, the chancellor’s findings in all other respects but stated:

“From our examination of the plats we are not certain that the terminus of the right-of-way shown on the Podolak plat is the east side of the roadway shown on the topographic survey plat made by Purdum and Jeschke on December 19, 1967. Consequently, we are of the opinion that the interests of justice would be best served if we invoked Rule 871 a and remanded this case to the chancellor for the purpose of having him make any amendment in his original decree he may find necessary to carry out the conclusions reached by him in his opinion.” 276 Md. 234, 244, 347 A. 2d 212, 217-218.

At the hearing after remand the trial judge, quite properly, limited the issue before him to the determination of where the two rights-of-way, as shown on the respective plats, should join. The only witness to testify for the appellees was Leon Podolak, the surveyor under whose supervision the original plat, which bears his name and is referred to above, was prepared. Through the witness a new plat was introduced showing the connection between the rights-of-way delineated on the two plats mentioned previously. The witness testified that he had extended the right-of-way 48.65 feet, thus confirming the Court of Appeals’ fears that the rights-of-way on the two plats did not connect. He stated that he had drawn this in a straight line or in other words, in the shortest possible line to connect the two rights-of-way. He had not connected the two points in his previous survey because at that time the appellants, the Amabiles, had graded for the construction of an apartment house and had destroyed all physical marks by which the right-of-way may have been precisely located. He stated that he took the point of the center line where the right-of-way ended on his earlier plat and connected it with the center line of the road as shown on the Purdum and Jeschke plat in the shortest possible line.

The appellant, Mr. Amabile, also testified and presented a plat he had prepared himself. Upon motion the plat was stricken from the evidence and no issue is raised on appeal concerning the correctness of this ruling. There was no other testimony produced at the hearing. At the conclusion of the hearing the chancellor stated that he accepted Mr. Podolak’s determination of the location of the right-of-way and later signed a new decree which reiterated the decree previously rendered but included the surveyor’s description of the center line of the right-of-way twelve feet in width running from the Winkles’ property to Fells Lane.

In this appeal, appellants argue that the chancellor erred in permitting the void between the two rights-of-way to be filled in by simply connecting the two via the shortest route. As we pointed out in our prior opinion in these proceedings, 24 Md. App. at 304, the appellants are in no position to complain because they deliberately destroyed all existing evidence of the roadway after receiving notice of the appellees’ claim. Hanley v. Stulman, 212 Md. 273, 129 A. 2d 132 (1957). The Court of Appeals in its opinion disposed of the argument by saying:

“The answer to these contentions of the Amabiles rests in a large degree upon the mandate of Maryland Rule 886 since the chancellor specifically found the action of the Amabiles ‘in building structures on the rights-of-way . . . was not the result of an innocent mistake,’ and that they ‘had constructive and actual notice of the existence of the rights-of-way in question across their property ...,’ in which finding he was not clearly in error.” 276 Md. 234, 240, 347 A. 2d 212, 216.

On the evidence before the chancellor in the instant appeal, we must find that he was not clearly in error. Md. Rule 1086.

The appellants inject a new argument that they are unable to comply with the decree because they sold and conveyed the property to a third person after the suit was instituted. Even if this argument were properly before us, it would be disposed of by citing Walzl v. King, 113 Md. 550, 556, 77 A. 1117, 1119 (1910) which states the familiar rule that persons purchasing property subject to litigation are bound by the judgment as much as if they were actual parties to the litigation; the rule is sometimes called the doctrine of lis pendens. See 2 J. Pomeroy, A Treatise on Equity Jurisprudence § 632 (5th ed. S. Symons 1941).

In the remaining contentions the appellants seek to relitigate the question, as to whether or not the chancellor should have balanced the equities and located the right-of-way in such a position as not to cause them to remove an apartment house which lies in its path. As we have indicated the Court of Appeals in the prior proceedings affirmed the findings of the chancellor that the appellants were not entitled to the balancing of the equities. We decline to consider the contentions further.

Decree affirmed.

Appellants to pay the costs.

      . “Rule 871. Remand.
      “a. For Further Proceedings.
      “If it shall appear to this Court that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment from which the appeal was taken, or that the purposes of justice will be advanced by permitting further proceedings in the cause, either through amendment of the pleadings, introduction of additional evidence, making of additional parties, or otherwise, then this Court, instead of entering a final order affirming, reversing or modifying the judgment from which the appeal was taken, may order the case to be remanded to the appropriate court. Upon remand to the appropriate court, such further proceedings shall be had by amendment of the pleadings, introduction of additional evidence, making of additional parties, or otherwise, as may be necessary for determining the action upon its merits as if no appeal had been taken and the judgment from which the appeal was taken had not been entered; provided, however, the, order entered by this Court in remanding said case, and the opinion of this Court on which said order is passed, shall be conclusive as to the points finally decided thereby. In such an order remanding a case, this Court will express the purpose for so remanding and in its opinion filed with said order will determine all questions which may have been properly presented.” (Italics added).

        See also: Fidelity Baltimore National Bank & Trust Co. v. John Hancock Mutual Life Ins. Co., 217 Md. 367, 371-72, 142 A. 2d 796, 798 (1958); Charles J. Cirelli & Sons, Inc. v. Harford County Council, 26 Md. App. 491, 338 A. 2d 400 (1975); Jacober v. High Hill Realty Co., Inc., 22 Md. App. 115, 321 A. 2d 838 (1974). See Md. Coal Co. v. Baker, 85 Md. 688, 689, 36 A. 768, 769 (1897), “If there are no material or substantial variations in facts set forth in the two records, a former decision is binding and not open to review.”

      . The surveyor also testified that the right-of-way as delineated on the most recent plat was within three to twenty-five feet of where the various witnesses at the original trial had located the right-of-way. The appellants argue that this shows that the roadway was not properly located in the current proceedings. We disagree. Those witnesses’ testimony was considered by the chancellor at the prior hearing and he determined that the right-of-way was as shown on the two plats. Under Rule 871 a as quoted in n. 1, the only issue before the chancellor in the present proceedings was to determine the proper connection between the rights-of-way as shown on the two plats. What other witnesses may have testified to at the prior hearing is of no consequence at this stage of the proceedings.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    IN RE APPEAL NO. 507, September Term, 1976 from the Circuit Court for Prince George’s County, sitting as a Juvenile Court
    [No. 507,
    September Term, 1976.]

      Decided January 5, 1977.

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

      Harry B. Allen, with whom were Allen & Marzetti on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Albert Gallatin Warfield, III, Assistant Attorney General, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

We dismiss sua sponte an attempt to appeal the Circuit Court for Prince George’s County’s refusal to waive its jurisdiction to try a 16 year old defendant for armed robbery and related offenses. We hold that the waiver denial was not a “final judgment”, which is prerequisite to the exercise of the statutory right of appeal. Md. Code, Cts. Art., § 12-301; Eastgate Associates v. Apper, 276 Md. 698, 701.

Appellant was indicted jointly with 3 codefendants for:

1. robbery with a deadly weapon,
2. attempted robbery with a deadly weapon,
3. robbery,
4. attempted robbery,
5. assault with intent to rob,
6. assault and battery,
7. larceny,
8. receiving stolen goods,
9. carrying a handgun; and,
10. use of a handgun in the perpetration of a designated felony.

Although appellant was 16 years of age at the time of the alleged offenses, the juvenile court did not have exclusive original jurisdiction over him because of the nature of the crime. Md. Code, Cts. Art., § 3-804 (d) (4) specifies that the juvenile court has no jurisdiction over a child 16 years old or older who is alleged to have committed the crime of robbery with a deadly weapon. The problem before us stems from a petition by appellant seeking the advantage of an exception to that statute which permits the removal of the proceedings to the juvenile court, pursuant to Md. Code, Art. 27, § 594A. This latter section authorizes “the court exercising jurisdiction” by virtue of the § 3-808 exclusion to transfer the case to the juvenile court “if waiver is believed to be in the interests of the child or society.” Appellant petitioned the Circuit Court for Prince George’s County to waive its jurisdiction and so transfer appellant’s case. An immediate appeal was filed, before trial, when Judge Robert B. Mathias denied the petition.

Appellant’s appeal first questions the circuit court’s “jurisdiction” by charging that the trial judge abused his discretion when he denied the petition to transfer appellant to juvenile jurisdiction. If the issue is whether the appellant’s unsuccessful challenge under the statutory procedure to the circuit court’s “jurisdiction” is immediately reviewable on appeal, Eisel v. Howell, 220 Md. 584, 586, is dispositive. The Court of Appeals there held that the failure of jurisdictional attacks are not immediately appealable because:

“The denial of a challenge to the jurisdiction does not settle or conclude the rights of any party or deny him the means of proceeding further. It settles nothing finally. An order which does none of these things is not appealable.” Id. at 586.

See also Raimondi v. State, 8 Md. App. 468.

Although a decision as to jurisdiction is immediately appealable where a court waives its jurisdiction, because nothing further could happen in that court, see Md. Code, Cts. Art., § 3-817 (f); Matter of Trader, 20 Md. App. 1, 7, rev’d on other grounds, 272 Md. 364, 402; an order refusing to waive jurisdiction maintains the status quo, permitting the case to proceed. In the latter case, the accused’s rights are not concluded and he is not denied the means of further defending his case. See Hazlehurst v. Morris, 28 Md. 67, 71-72; see also Waters v. Smith, 277 Md. 189, 195.

Because of the bastard nature of a juvenile proceeding, wherein the circuit court has “jurisdiction” but sits as a juvenile court (except in Montgomery County) the issue before us might be characterized as an attack upon the judge’s discretion in selecting one of two available forums rather than as a jurisdictional issue. That view would avail appellant nothing. Lee v. State, 161 Md. 430, points the direction we are compelled to follow even then. Lee held that the selection of the forum to which a capital case had been removed was within the lower court’s discretion, and was not a final order immediately reviewable on appeal. The Lee Court recognized that the refusal of certain constitutional rights would have amounted to an appealable final judgment on that constitutional issue:

“But only decisions on claims of such absolute constitutional rights have been held reviewable at once, and there has been a decision on the precise point that orders within the discretion of the lower courts are, on the contrary, not final orders within the meaning of the rules governing the jurisdiction of this court, and are therefore not immediately reviewable, if reviewable at all. Tidewater Portland Cement Co. v. State, 122 Md. 96, 89 A. 327. And see City of Annapolis v. Howard, 80 Md. 244, 30 A. 910.” Id. at 433.

The Court pointed out the impractical, if not prohibitive, consequences of piecemeal appeals:

“If, on a question left to the court’s discretion, upon a suggestion for removal, a prisoner is permitted to take an immediate appeal, then proceedings in every criminal case, great or small, may be stopped and delayed while the accused prosecutes an appeal on this preliminary matter of venue. And this would add just so much to the resources of those who might find vexatious delays advantageous, and would multiply appeals in criminal cases, often when acquittals, in the end, would render them profitless.” Id. at 434.

However viewed, there is no finality of proceedings in the instant case. The order denying waiver does not comply with the statutory prerequisite for appeal in Md. Code, Cts. Art., § 12-301:

“Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended.” (emphasis added).

Nor is there any pertinent exception in Md. Code, Cts. Art., § 12-303, permitting certain interlocutory orders to be appealed immediately; and, with exceptions such as those noted in State Department of Assessments and Taxation v. Clark, 34 Md. App. 136 (1976), there is no right to appeal other than that granted by statute.

We have no jurisdiction to entertain the merits of this appeal. The order appealed from was not a final order and does not fall within the category of interlocutory orders from which an appeal may be maintained. See Blocher v. Harlow, 268 Md. 571, 578.

Appellant’s motions ne recipiatur and to strike, denied.

Appeal dismissed.

Costs to be paid by appellant.

      . Md. Code, Cts. Art., § 12-101 (f) provides:
      “ ‘Final judgment,’ means a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.”

      . There are exceptions for circumstances where appeals are permitted from interlocutory judgments, but they are not here relevant.

      . Title 3, Subtitle 8, of Md. Code, Cts. Art. was repealed and reenacted as amended by Ch. 554, Laws of 1975, effective July 1,1975. The provisions of Cts. Art., § 3-808 are now found in § 3-804.

      . Contending that the order denying the petition is interlocutory and therefore not appealable, the State moved to dismiss the appeal. Although the motion was included in the State’s brief, providing it with 30 days rather than 10 to file its motion, Md. Rule 1036 c. and d., the brief containing the motion was, according to appellant, one day beyond the 30 days allowed for filing appellee’s brief. Md. Rule 1030 a. 2. This evoked from appellant a “Motion Ne Recipiatur and/or to Strike Appellee’s Brief and Motion to Dismiss the Appeal”. However,' appellant overlooked the_ fact that what appeared to be the 31st day was an official State holiday, “Defender’s Day”. Therefore, pursuant to Md. Rules 8 and 1030 a. 2., the brief and motion were timely filed. In any case, the action of this Court under Md. Rule 1030 a. 2. is discretionary, permitting us to receive the brief. Cf. Operations Research v. Davidson, 241 Md. 550, 575-576. Here it is of little consequence to appellant whether we dismiss the appeal sua sponte under Md. Rule 1035 a. 1., or act upon the State’s Motion to Dismiss. The result will be the same. If the circuit court order denying waiver is interlocutory, we have no jurisdiction to hear an appeal and consequently may not entertain an issue raised on appeal, whatever our personal inclination might be. See Nu Car Carriers, Inc. v. Everett, 33 Md. App. 310. We are told in Eastgate Associates, supra, that we should go no further than to dismiss the appeal. 276 Md. at 704. Our decision to proceed sua sponte avoids our further being bogged in meaningless interpretive semantics. By declining to recognize the motions or arguments of either party, we adhere to the fiction that because we are without jurisdiction, neither party can be before us.

      . Until Ch. 554, Laws of 1975, became effective on July 1, 1975, § 3-817 provided that an order waiving juvenile jurisdiction is interlocutory.

      . The statutory use of the term “jurisdiction” is somewhat confusing. The juvenile “court” is simply a circuit court “sitting as” the juvenile court. Md. Code, Cts. Art., § 3-801 (i). The language of § 3-803 as it existed prior to its deletion in 1976 as unnecessary (see Revisor’s note) stated that “the circuit court for each county, has original jurisdiction in juvenile causes.... When the circuit court exercises this jurisdiction, it is known as ‘the Circuit Court for .... County, sitting as a Juvenile Court.’ ” Therefore, if the issue before us were “jurisdictional” in the traditional sense, appellant would have no “jurisdictional” complaint in whichever capacity the Circuit Court of Prince George’s County sat.

      . For an example of an immediate appeal permitted on a constitutional issue, see Neal v. State, 272 Md. 323 (double jeopardy).

      . Although we have declined to consider the merits of this appeal, see Diener Enterprises v. Miller, 266 Md. 551, 552-553, we point out for the guidance of counsel in the future that in presenting an appeal he is confined to the record and may not include matter in the appendix of his brief which was not before the court below.


author: Liss, J.,

text:
    RONALD RALPH CAIN v. STATE OF MARYLAND
    [No. 473,
    September Term, 1976.]

      Decided January 6, 1977

    The .cause was argued before Thompson, Moylan and Liss, JJ.

      John F. Fader, II, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donaldson G. Cole, Jr„ State’s Attorney for Cedi County, and Paul S. Podolak, Assistant State’s Attorney for Cedi County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Ronald Ralph Cain, appellant, was convicted in a jury trial (Mackey, J., presiding) in the Circuit Court for Cecil County of the crimes of possession with intent to distribute LSD, possession with intent to distribute marijuana and assault. He received a five-year sentence in each of the cases to be served concurrently.

Appellant seeks the reversal of these convictions and raises two questions to be decided in this appeal: (1) Was the evidence sufficient to convict the appellant of the possession of drugs with intent to distribute?; and (2) Was the evidence sufficient to convict the appellant of the crime of assault? We shall respond to the first question in the negative and reverse; we answer the second in the affirmative and shall affirm.

In deciding these issues, it is necessary for us to examine the testimony adduced at the trial. Joseph Boykevitch, a special agent of the Justice Department, was assigned to investigate one Burton Charles, a reputed drug dealer. The narcotics agent was able to make contact during the final week of September in 1975 and purchased a quantity of LSD from Charles at a trailer park where he occupied a converted school bus.

During the next seven weeks a series of meetings took place between Charles and the agent; and on at least one occasion when a discussion of the sale of drugs occurred between Charles and the agent, Cain was present.

The bus was kept under surveillance for an appreciable length of time during which period appellant was observed visiting the bus on a number of occasions. Appellant was also seen changing his clothes in the bus and on one occasion was observed taking a bath in a stream near the bus. At no time was there any conversation about drugs between the appellant and Charles in the presence of the agent, nor was there ever any conversation concerning the use or purchase of drugs between appellant and the agent.

Charles and the converted bus were under surveillance for a number of weeks, but no evidence of drug activity by Cain was generated by this observation. Cain was never observed sleeping in the bus. On one occasion, out of the presence of Cain, Charles allegedly told the agent that if he had trouble contacting Charles, the agent should contact Cain who would deliver a message. No such incident occurred during the time of surveillance. The converted bus was apparently a hangout for a number of people in the area. The agent also testified concerning the activities of a Miss Keller who frequented the bus, used it to change clothes and was, he believed, the paramour of Charles. Miss Keller was also charged and convicted in this case but is not a party to this appeal.

On one of the visits of the narcotics agent to the vicinity of the bus, Charles pulled a .38 caliber loaded revolver, stuck it in the officer’s face and ordered him to leave. Cain, who was present, urged Charles to shoot. The officer was certain the gun was loaded because he could see the lead-nosed parts of the bullets sticking out of the chamber.

Several weeks later, during which period surveillance continued, the agent obtained a search and seizure warrant and seized substantial amounts of LSD, phenobarbital, marijuana, hashish and other drugs. All of the drugs were found in the converted bus in a refrigerator which did not work, or in a dresser in the bus. Some of the marijuana paraphernalia was in open view. The officer conceded that on the occasions he purchased drugs from Charles, the appellant was not present. Cain and Miss Keller were arrested at the time of the search and seizure but no prohibited substances were found on their person.

Charles testified for the defense at the trial. He admitted that he sold drugs from the bus which he occupied but denied that either appellant or Keller was involved. He testified that appellant had spent a few nights at the bus with him but had no access to or knowledge of the drugs on the bus; he never participated in the sale of drugs nor did he ever introduce any customers to him. Charles did not recall the incident of the gun being pulled on the narcotics agent but did remember ordering him to leave because the agent was drunk and used vulgar language.

After the testimony had been completed, the trial court denied appellant’s motions for a directed verdict of acquittal, the case was submitted to the jury, and appellant was convicted.

Appellant vigorously contends that the evidence presented by the State was legally insufficient to convict him of possession of drugs with intent to distribute them. We agree with this contention.

It is well settled that possession of narcotic drugs under the Maryland law need not be sole possession; there may be joint possession and joint control in several persons. The duration of possession and the quantity possessed are not material, nor is it necessary to prove ownership in the sense of title. Folk v. State, 11 Md. App. 508, 275 A. 2d 184 (1971).

Judge Moylan in Folk, made an excellent, exhaustive survey of the numerous cases that we have had before us in which the sufficiency of the evidence to prove joint possession was in issue. After reviewing the factual situation in each of the cases cited in Folk, Judge Moylan found the common thread running through all the cases negating joint possession to be: (1) the lack of proximity between the defendant and the contraband, (2) the fact that the contraband was secreted away in hidden places not shown to be within his gaze or knowledge or in any way under his control, and (3) the lack of evidence from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use of the contraband. See, Haley, Peterson and Roberts v. State, 7 Md. App. 18, 253 A. 2d 424 (1969); Wimberly v. State, 7 Md. App. 302, 254 A. 2d 711 (1969); Scott v. State, 7 Md. App. 505, 256 A. 2d 384; and Barksdale v. State, 15 Md. App. 469, 291 A. 2d 495 (1972).

The evidence viewed in the light most favorable to the State reveals no more than: When the arrests were made, the appellant was one of a number of persons in the general vicinity of the bus. The officers indicated that none of these other individuals were arrested because they were believed to be merely customers of the entrepreneur, Mr. Charles. The principal contraband was found in the refrigerator in the rear of the bus, although some marijuana and a pipe were in plain view on a dresser. We think it is a fair inference that the appellant knew that Charles was engaged in the sale of drugs but we do not believe there was evidence from which it might be fairly inferred that the appellant was a participant in the nefarious trade. We note that Charles and the bus were under surveillance for a period of more than six weeks and that there was no evidence of the appellant’s involvement in any unlawful activity during that entire period.

The narcotics agent testified that it was his understanding that the appellant’s residence was the bus which had been raided, and he gave the following account as the reasons for his assumption:

“Q Now, why did you base your assumption on the fact, was you saw them there five or six times? [Sic]
“A The number of occasions that I saw them there; on a number of occasions I saw Miss Keller with access to the particular bus, Mr. Cain with access to the bus, change of clothes in the bus. They actually changed clothes in front of me; not a complete change of clothes, coats, sweaters, jackets, things of this nature. Mr. Charles on one occasion told me that if I had trouble contacting him, I should contact Mr. Cain. On one particular occasion Mr. Cain was taking a bath in the stream while I was there. Miss Keller was there on numerous occasions; again she was changing clothes. Her vehicle, the vehicle that she normally driving was there. The laundry was done by her, was taken to and from that particular location. There were clothes hung out on the clothesline. And in my experience that would tell me, including the fact that I could not ascertain an address on either of the individuals other than the box numbers, that they would be living at that particular location. I had no trouble contacting, if I wanted to, I had no trouble contacting either one of them.
“Q So from all these factors, you assumed that both these individuals lived with Burton Charles at the bus?
“A Yes, and what I was told.”

The record is silent as to specifically what information led the agent to believe that the bus was the residence of Cain or Keller, as to who supplied the information, if anyone and under what circumstances that information was received by him.

No papers, mail or other personal effects of appellant were found in the bus after the arrest. It is significant, we believe, that not only was there no testimony as to appellant’s participation in the sale of drugs but there was not even any evidence to suggest that he was a user of drugs. No proof of needle marks was offered nor was there any suggestion that he used drugs during the six or seven week period of surveillance. There was never any discussion as to drugs nor any financial transaction between the officer and the appellant. In view of these facts we believe that the appellant’s motion for judgment of acquittal as to the counts charging possession of LSD and marijuana with intent to distribute should have been granted.

In order to sustain a verdict of guilty in a case of this kind, there must be sufficient evidence from which the triers of the fact could fairly be convinced beyond a reasonable doubt of the defendant’s guilt of the offense charged. In Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331, 335 (1970), we stated the test as to the sufficiency of evidence:

“To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.”

We do not believe the test has been met as to the narcotics convictions of the appellant.

We reach an entirely different conclusion regarding the appellant’s conviction of assault. Count Five of the indictment charged the appellant with assault and battery; there was no evidence of a battery by the appellant on the person of the narcotics agent. The record reveals, however, that the trial court correctly called this to the attention of the jury before the case was submitted to it for its consideration. The court said:

“And you should, you should disregard those two words, and battery, there on Count Five on the first page, Mr. Foreman. That is an error. It’s simply assault on the Special Agent. There was no touching of the Special Agent, so it’s just assault, if at all, if guilty at all.”

There was no objection to the court’s instruction to the jury, nor is there any suggestion that the jury instructions given by the trial court were incorrect. The jury found the appellant guilty of assault, and the trial court imposed sentence, “as a punishment for his offense under Count Five, which is the assault offense.”

While Maryland Rule 716 (a) states that only one offense may be charged in a single count of an indictment, assault and battery is an exception to that rule. Thus every battery includes an assault so that on an indictment for assault and battery, one may be convicted of assault only. See 1 Hawkins, Pleas of the Crown, c. 15, Sec. 2; Massey v. State, 7 Md. App. 615, 256 A. 2d 614 (1969); Ayre v. State, 21 Md. App. 61, 318 A. 2d 828 (1974).

Assault has been defined as “an attempt or offer, with unlawful force or violence, to do a corporal hurt to another.” Clark and Marshall, Law of Crimes (Seventh Edition), Sec. 10.15.

In Ott v. State, 11 Md. App. 259, 265, 273 A. 2d 630 (1971), we held that, “[t]he exhibition of a gun to a victim in such a manner as to cause apprehension that it would be used to inflict harm upon him is an assault.” There can be no question that the narcotics agent’s testimony that Charles pointed a loaded gun at his face was sufficient to sustain a conviction for assault against Charles. The sole question in this case is whether there were other facts sufficient to convict Cain as a participant in the assault. There is evidence that while it was Charles who pointed the gun at the agent’s face, the appellant encouraged him to fire the gun.

We believe Coleman v. State, 4 Md. App. 386, 390, 243 A. 2d 24, 27, (1968) is dispositive of this issue. We there said:

“As the crime of assault is a common-law misdemeanor in Maryland, and as all participants therein are chargeable as principals . . . the question before us is whether there was any legally sufficient evidence showing that appellant participated in the crime, i.e., that he knowingly, voluntarily, and with common criminal intent with the other participants assaulted [the victim] or that he advocated, encouraged, aided or abetted in the commission of the crime ... To be an ‘aider’ a person must assist, support or supplement the efforts of another; to be an ‘abettor’ a person must instigate, advise or encourage the commission of a crime and may in some circumstances include a person who is present at the commission of the crime without giving active assistance. . .” (Citations omitted).

Applying the test of Metz, supra, we believe the evidence was such that the triers of fact could fairly be convinced beyond a reasonable doubt of the defendant’s guilt of the assault charged.

Judgments reversed as to counts 1 and 3: judgment affirmed as to 5th count, costs to be divided between appellant and Cecil County.


author:
Gilbert, C. J.,
      Menchine, J.,

text:
    QUENZILL COVINGTON v. STATE OF MARYLAND
    [No. 352,
    September Term, 1976.]

      Decided January 13, 1977.

    The cause was argued before Thompson, Powers and Lowe, JJ., and reargued before Gilbert, C. J., and Morton, Thompson, Moylan, Powers, Menchine, Davidson, Moore, Lowe, Melvin, Mason and Liss, JJ.
    Argued by Bradford C. Peabody, Assigned Public Defender, with whom were Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, on the brief, for appellant. Reargued by Bradford

      C. Peabody and Arnold M. Zerwitz, Assistant Public Defenders, for appellant.
    Argued and reargued by Bernard A. Ra,um, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Howard Grossfeld, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court. Menchine, J., filed a concurring opinion in which Mason, J., joins at page 466 infra.

The plea of not guilty, accompanied by an “Agreed Statement of Facts”, is a peculiar animal. As was succinctly stated in Barnes v. State, 31 Md. App. 25, 35, 354 A. 2d 499, 505 (1976),

“Under an agreed statement of facts both State and the defense agree as to the ultimate facts. Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves. There is no fact-finding function left to perform. To render judgment, the court simply applies the law to the facts agreed upon. If there is agreement as to the facts, there is no dispute [.]”

The trial below proceeded on such an agreed statement of facts. The defendant, Quenzill Covington, appellant here, was found guilty by the trial judge and sentenced to eight years, to run concurrently with another sentence (of four years) that he was then serving.

He makes the following contention on appeal:

“The court below erred in finding Appellant guilty without first affording Appellant the right to argue the merits of his ease.”

In support of this contention, Covington asserts that the lack of argument by his counsel, after the evidence was admitted, prior to the Court’s finding of guilty, denied him his right to counsel in violation of the precepts of Herring v. New York, 422 U. S. 853, 45 L.Ed.2d 593, 95 S. Ct. 2550 (1975); Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962); and Moore v. State, 7 Md. App. 330, 254 A. 2d 717 (1969).

Before evaluating his claim in terms of the above-mentioned cases and others, we set forth, with minor editing, the proceedings below up to and including the conviction of the accused.

“MR. *GAREY: We have received a copy of the indictment, Mr. Clerk and we are familiar with it and we waive the reading thereof and the plea is not guilty. Mr. Covington, you advised me that you wish to plead not guilty. You also advised me that you wished to proceed under what is called a statement of facts. That’s wherein the State’s Attorney will read a statement of facts rather than present live testimony here this morning. Do you understand that?
THE DEFENDANT: Yes.
MR. CAREY: Do you also understand that you could plead not guilty and ask for a jury trial?
THE COURT: I will do that with him. Which count are you calling, Mr. Grossfeld?
MR. GROSSFELD: First count. And, not as to the addendum. As to the first count of the indictment only.
THE COURT: Mr. Covington, let me just advise you of a few things. By proceeding on an agreed statement of facts as your attorney has indicated that you are going to do, that means that the State will present to me an agreed statement of facts. You will not be permitted to testify. Normally you would have a right to testify in the case. But, by agreeing to proceed on an agreed statement of facts you are giving up your right to testify on your own behalf in the case. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And, you are willing to give up your right to testify?
THE DEFENDANT: Yes.
THE COURT: All right. Why don’t you have a seat. Mr. Grossfeld, what are the plea negotiations?
MR. GROSSFELD: Your Honor, the plea negotiations are as follows: Should the defendant be found guilty, the State would then recommend 8 years concurrent to the 4 years he is now serving dating from August, Your Honor. So, it’s actually 8 years dating from August of 1975.
THE COURT: Do you have a date?
MR. GROSSFELD: That would be August 15, Your Honor.
THE COURT: All right. Mr. Carey, is that the actual extent of the plea negotiations?
MR. CAREY: Yes, Your Honor.
MR. GROSSFELD: And, the State will also nolle prosequi the other charges, Your Honor.
THE COURT: That’s 3213?
MR. GROSSFELD: Yes, Your Honor.
THE COURT: Mr. Covington, the State’s Attorney has stated in open court that in exchange for your agreeing to proceed on an agreed statement of facts in this case, the State will recommend to me that if you are found guilty, that I give you an 8 year’s sentence concurrent with the 4 year sentence that you are now serving and that I give the 8 year sentence as of August 15, 1975 so as to give you credit for the time you are incarcerated for this particular offense. And, the State will nolle prosequi the other charges against you. Now, has anyone made any other promise, threat or inducement to you other than what I have just told you to get you to agree to proceed on an agreed statement of facts in this case?
THE DEFENDANT: No, sir.
THE COURT: Now, do you understand that you could elect to be tried by a jury in this case?
THE DEFENDANT: Yes.
THE COURT: What that means is that 12 registered voters from the City of Baltimore would comprise the jury. No one can be excluded from the panel because of race, color, religion, sex, national origin or economic status and that in order for you to be convicted of this offense, all 12 members of that jury would have to be convinced of your guilt. In other words, if one member of that jury was not convinced of your guilt beyond a reasonable doubt then you could not be convicted of this charge. Now, do you understand by proceeding on an agreed statement of facts that you’re giving up your right to be tried by a jury, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now, if you had not proceeded in this way, if we had a trial, you would have the right to see and hear all of the witnesses against you. Your attorney would have a right to cross-examine these witnesses. You would have the right to stop the State from producing any evidence that would be otherwise inadmissible. By proceeding on an agreed statement of facts, do you understand that you are giving up this right that I have just mentioned to you?
THE DEFENDANT: Yes.
THE COURT: Now, do you also understand that by proceeding in this fashion the State can prove its case against you by reading into the record what it intends to prove without having to put witnesses on the witness stand and the State will be able to have other evidence admitted without objection on your part. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And, do you also understand that I will consider the facts given to me by the State as true and can use those facts as a basis for finding you guilty of this offense. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now, if there were a trial, you would have a right to testify in your own behalf or you could choose not to testify in your own behalf and no inference of guilt would be raised because of your failure to testify. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you are giving up the right to testify in this case?
THE DEFENDANT: Yes.
THE COURT: All right. You can be seated.
MR. CAREY: Your Honor, I’m sure that there will be no problem. But, my understanding on an agreed statement of facts is that he would have a right to testify. I’m sure he’s going to advise the Court that he does not intend to.
THE COURT: Well, the way we proceed in this court, and, it varies from Judge to Judge, that if you agree to proceed on an agreed statement of facts you have to agree to those facts.
MR. CAREY: It is an agreed statement of facts.
THE COURT: That’s right. And, I toill only proceed in this case if the defendant forgoes his right to testify. In other words, he has to agree to the facts and not testify to the contrary. Anything he wants to say in mitigation he can say after and if a guilty finding is made.
THE COURT: Mr. Grossfeld, do you want to give me the facts?
MR. GROSSFELD: Your Honor, the agreed statement of facts agreed to by counsel for the State and the defense are as follows: The State would have called Detective Williams who’s present in court today, Your Honor, who is aware and does know of the plea negotiations.
The detective would testify that on May 15, 1975 he received a phone call from an informant concerning some narcotics that could be purchased at Greenmount and North Avenue section of Baltimore City. At approximately 4 p.m. that day the detective met his informant at North Avenue and Greenmount Avenue in Baltimore City at which time the informant then took him over to meet the defendant seated at the trial table who the detective would identify. At that time the informant introduced the detective to the defendant. Upon having a conversation, the detective was able to reach an agreement with the defendant where he would buy 25 bags of heroin or a bundle for the price of $125 at approximately 4:30 p.m., the detective, along with the defendant went to 107 Albemarle Street — Apartment 7F. The detective took him into — 107 Albemarle Street. At approximately 5 o’clock when they arrived to this particular location and in that apartment, the defendant then handed over to the officer 25 glassine bags containing a white powdery substance which the detective believed to be heroin. The detective then left that particular location.
THE COURT: Didn’t he pay for it?
MR. GROSSFELD: He paid $125, Your Honor. The detective then forwarded the 25 glassine bags to Washington where it was analyzed by Earl Parrish. Washington, D. C. and, the results was 7.5 percent heroin. Your Honor, the State would offer into evidence the 25 glassine bags that were purchased from the defendant for $125 by the detective from the defendant along with the chemical analysis which is attached as State’s Exhibit Number 1 with the Court’s permission.
THE COURT: All right.
MR. GROSSFELD: That would be the statement of facts, Your Honor.
THE COURT: Mr. Carey, any additions or corrections to the statement of facts?
MR. CAREY: I have advised Mr. Covington that at this time you would hear from him as to any additions or corrections and he indicated to me that he has none. Is that correct, Mr. Covington?
THE DEFENDANT: Yes.
THE COURT: All right. Based upon the facts given to me by the State, I find that they are sufficient to find the defendant guilty beyond a reasonable doubt of the first count in indictment number 3214. And, accordingly, I do find him guilty of the charge.” (Emphasis added.)

Thus, to delineate the transaction above, we observe that: (1) the defendant was aware of and waived his right to a fair and impartial trial by a jury of his peers; (2) he was aware of his right of confrontation with the witnesses against him and waived that right; (3) he knew of his .right to freedom from self-incrimination, without penalty for the exercise of that right; (4) he was represented by counsel; (5) counsel, on behalf of his client, had “worked out a deal” as to sentencing — i.e. eight years, whereas defendant, had he had a full-blown trial, would have exposed himself to a maximum of twenty years or more imprisonment; (6) the State’s recommendation of eight years was accompanied by no threats or other inducements; (7) defendant agreed with the statement of facts as presented by the State; (8) those facts consisted of sufficient evidence to support a finding of guilt; (9) defendant’s counsel made no effort to argue; (10) defendant did not object to his counsel’s silence; (11) the court did not affirmatively deny defendant or his counsel the right to argue the merits of the case.

The Supreme Court in Herring, supra, (dealing with a New York statute that made discretionary with the trial judge the question whether defense counsel would be heard in summation and wherein the trial judge had declined to hear counsel), stated:

“There can be no doubt that closing argument for the defense is a basic element of the adversary fact-finding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge. The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.
Some cases may appear to the trial judge to be simple — open and shut — at the close of thé evidence. And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be ‘likely to leave [a] judge just where it found him.’ But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel.” 422 U. S. at 858-863, 45 L.Ed.2d at 598-601, 95 S. Ct. at 2553-2556 (footnotes omitted).

The Court of Appeals in Yopps, supra, stated:

“The ruling of the trial court [declining in a nonjury case, to hear argument of counsel after a prior pronouncement by the court of a guilty verdict] was manifestly prejudicial to the right of the accused to be represented by counsel throughout the entire trial and amounted to a denial of his rights under Article 21 of the Declaration of Rights of this State. While time is important to the court it is also important to the accused, whose life or liberty hangs in the balance. Through his counsel, no matter how convincing the evidence may appear to be, the accused has the right to subject all the facts and evidence produced at the trial to a logical analysis.” 228 Md. at 208,178 A. 2d at 882.

Moore, supra, dealt with a nonjury case wherein the record was silent as to the question of whether trial counsel had sought the opportunity to argue, but where appellant’s counsel contended that such opportunity had been denied. This Court stated:

“We think the present case is controlled by Yopps and that, on the facts, Rome is manifestly inapposite. On its face, the record indicates that the court announced its guilty verdict without first affording appellant’s counsel an opportunity to argue the merits of the case. The failure of appellant’s counsel, after the court announced its verdict, to assert the right to present argument, as was done by defense counsel in Yopps, does not of itself constitute a waiver of such right. Cf. West v. United States, 399 F. 2d 467 (5th Cir.). The State constitutional right of an accused to have counsel argue the merits of his case before entry of a verdict, as articulated in Yopps, is based on the provisions of Article 21 of the Maryland Declaration of Rights guaranteeing an accused in a criminal case the right ‘to be allowed counsel.’ We think it likely that the right is similarly rooted in the provisions of the Sixth Amendment to the Federal Constitution, now applicable to the states through the Fourteenth Amendment, Gideon v. Wainwright, 372 U. S. 335, guaranteeing an accused in a criminal case the effective assistance of counsel for his defense. While it is true that constitutional rights, whether Federal or State, maj be waived, we find no such waiver on the facts of this case. Presuming waiver from a silent record is ordinarily impermissible, Wayne v. State, 4 Md. App. 424, and insofar as the waiver of a Federal constitutional right is concerned, we must indulge every reasonable presumption against waiver and not presume acquiescence in the loss of fundamental rights, Brookhart v. Janis, 384 U. S. 1. In any event, for the waiver of a Federal constitutional right to be effective, it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U. S. 458. Whether the constitutional right here involved be founded on the State or Federal Constitution, or both, we hold that appellant did not waive the right to argue the merits of his case prior to entry by the court of its guilty verdict. See Annotation, 38 A.L.R. 2d 1396-1439.” 7 Md. App. at 333-34, 254 A. 2d at 719 (footnote omitted).

Neither Herring nor Yopps are apposite. Herring, supra, turned on ,-a New York statute which empowered a trial judge to deny absolutely the opportunity for any closing summation at all. Additionally, there was conflicting testimony produced. Moreover, the defendant’s counsel requested to be “heard somewhat on the facts, ” but that request was denied. In Yopps, supra, there also was conflicting testimony, and the trial court specifically denied defendant’s counsel the opportunity to argue the merits of the case.

Although the appellant couches his contention before this Court as a denial of the right to counsel, we perceive the issue actually to be one of an alleged denial of the effective assistance of counsel. This is so because counsel participated throughout the proceeding but did not argue the case at the close of the evidence. We are unable, on the record before us, to glean that counsel asked to be heard or that the trial court denied argument.

We observe that in the instant case neither the appellant nor his counsel raised, at trial, any issue of a denial of argument of the law applicable to the agreed facts. Thus the issue is raised for the first time on appeal. Maryland Rule 1085 provides that we should not ordinarily decide any issue which “does not plainly appear by the record to have been tried and decided by the lower court [.]” Palmer v. State, 19 Md. App. 678, 313 A. 2d 698 (1974); Ragler v. State, 18 Md. App. 671, 308 A. 2d 401 (1973); Gazaille v. State, 2 Md. App. 462, 235 A. 2d 306 (1967), even Constitutional questions, Squire v. State, 32 Md. App. 307, 360 A. 2d 443 (1976), cert. granted Oct. 27, 1976; Hall v. State, 22 Md. App. 240, 323 A. 2d 435 (1974); Palmer v. State, supra; Smith v. State, 16 Md. App. 317, 295 A. 2d 802 (1972).

Notwithstanding Maryland Rule 1085, we reversed the trial court in Moore, supra, even though the issue of argument by counsel was not raised in the trial court. While Md. Rule 1085 was invoked by the State in its brief in Moore, we did not address the point. We believe Moore’s articulation of the right of counsel to be correct, but we should not have considered the matter on direct appeal because it was not raised nor decided in the trial court. Md. Rule 1085. To the extent that Moore indicates that the issue may be presented for the first time on appeal, Moore is expressly overruled.

Appellant, however, is not left without a right to air his grievance. Under Md. Ann. Code art. 27, § 645A, the appellant may proceed by way of post conviction and demonstrate, if he can, to the satisfaction of the hearing judge, that the appellant was denied the effective assistance of counsel in that there was no opportunity for argument by counsel before or after the court announced its verdict. Of course, the State is equally free to show, if it can, that appellant’s trial counsel obtained all that he sought on appellant’s behalf, and knowingly forewent the right to argue the law to the trial judge. Palmer v. State, supra; see also State v. Zimmerman, 261 Md. 11, 273 A. 2d 156 (1971).

Judgment affirmed.

Costs to be paid by appellant.

Menchine, J.,

concurring:

I disagree with the route taken by the majority to affirmance of the judgment below, but concur in that result.

I am persuaded that a due respect for the course followed by this Court in Moore v. State, 7 Md. App. 330, 254 A. 2d 717 (1969), coupled with the manifest propriety of the conduct of the trial in the lower court, combine to justify us in reaching and rejecting appellant’s substantive contention on appeal. We should not, under the circumstances of this case, utilize Maryland Rule 1085 as a basis for affirmance.

Maryland Rule 1085, applicable to this Court, is essentially identical to Maryland Rule 885, applicable to the Court of Appeals of Maryland. In Walters v. State, 242 Md. 235, 218 A. 2d 678 (1966), Judge Barnes, after pointing out .that three issues on appeal were not raised below and thus were not properly before the Court, went on to say at 238 [681]: “As these issues might be raised in a post conviction proceeding, we will dispose of them now in anticipation of a possible later collateral attack on the conviction.” We should follow precisely such a course here.

Instead, we have chosen to repudiate the procedural action taken by us in Moore v. State, supra, without guidance to a post conviction tribunal as to Moore’s substantive impact, if any, upon the subject case.

Appellant contends:

“The court below erred in finding Appellant guilty without first affording Appellant the right to argue the merits of his case.”

I think his case had no merits to argue save for mitigation of punishment, the accused having waived his right to argument by counsel upon the issue of guilt or innocence. Both counsel and accused were accorded the right to speak in mitigation.

Appellant’s reliance upon Herring v. New York, 422 U. S. 853, 45 L.Ed.2d 593, 95 S. Ct. 2550 (1975); Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962); and Moore v. State, supra, is misplaced. There is no necessity to retreat in any respect from the holdings in that trilogy of cases. It is plain that the subject case is beyond the range of their impact.

Herring, Yopps and Moore, all supra, in unison imperatively declare that argument of counsel is a fundamental arrow in the full quiver of rights conferred by the Sixth Amendment’s assurance of the assistance of counsel. This is not to say, however, that the accused may not withdraw this fundamental arrow from its quiver and waive its use.

A common thread running through this trilogy of cases is the existence in each of disputed facts requiring resolution by the trier of facts. See Herring, supra, at 856 [597] [2552]; Yopps, supra, at 206 [880]; and Moore, supra, at 331 [718],

A second common thread running through all three is clear recognition of the right of the trial judge to restrict argument to the issues of the particular case. In Herring, supra, it was said: “The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations.” (Emphasis added.) 422 U. S. at 862, 45 L.Ed.2d at 600, 95 S. Ct. at 2555.

In Yopps, supra, it was said: “The constitutional right of a defendant to be heard through counsel includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor however simple, clear, unimpeached and conclusive the evidence may seem unless he has waived his right to such argument, or unless the argument is not within the issues of the case. ...” (Emphasis added.) 228 Md. at 207, 178 A. 2d at 881.

In Moore, supra, it is plain that its rule was limited to “an opportunity to argue the merits of the case.” (Emphasis added.) 7 Md. App. at 332, 254 A. 2d at 718.

The purpose of argument on the issue of guilt or innocence is to direct the eye and the mind of the court or jury to evidence favorable to the accused; to suggest the invalidity or inadequacy of evidence against the accused; to point out missing elements of proof; or to direct attention of the trier of facts to applicable law favorable to the accused.

In the subject case the trial judge very carefully informed and advised the accused: of his right to a jury trial; of his right to confront the witnesses against him; of his right to freedom from compulsory self-incrimination and the concomitant attributes of that right. He pointed out that the facts agreed upon would be considered by the court to be true and went on to make crystal clear that he would not accept an “agreed statement of facts” if the accused entered any caveat upon it. The appellant entered none, and acknowledged complete understanding of his explained rights.

Appellate counsel have not undertaken to enlighten us as to the nature of permissible argument on an issue of guilt or innocence under the admitted facts. They have been content simply to declare that “this Court should not speculate that there may be none.”

I do not find the agreed facts to give rise to any speculation. They unequivocally establish both the corpus delicti of the offense charged and the criminal agency of the appellant.

Counsel for appellant rely upon the conceded rule that presuming constitutional waiver from a silent record is impermissible. Carnley v. Cochran, 869 U. S. 506, 8 L.Ed.2d 70, 82 S. Ct. 884 (1962); Moore v. State, supra.

This is not a silent record. 1 am persuaded that the express waivers set forth in detail in the majority opinion, coupled with all other circumstances of this case, make it plain and clear that the right to argument by counsel upon the issue of guilt or innocence was knowingly and intelligently waived. This record demonstrates a classic example of a knowing, intelligent, voluntary waiver, express and by conduct, of the right to argument by counsel upon the issue of guilt or innocence.

In Carnley v. Cochran, supra, the Supreme Court said:

“. . . we recognized in Rice v. 01sonilthat, although the Fourteenth Amendment would not countenance any presumption of waiver from the appearance of the accused without counsel and the silence of the record as to a request, the entry of the guilty plea might have raised a fact issue as to whether the accused did not intelligently and understandingly waive his constitutional right.” 369 U. S. at 515, 8 L.Ed.2d at 77, 82 S. Ct. at 890.

Wayne v. State, 4 Md. App. 424, 431, 243 A. 2d 19, 24 (1968), recognized that there may be circumstances where the conduct of the accused is so plain and clear as implicitly to demonstrate a knowing and intelligent waiver of the right to counsel. See also State v. Zimmerman, 261 Md. 11, 23, 273 A. 2d 156, 162 (1971); State v. Panagoulis, 3 Md. App. 330, 339, 239 A. 2d 145, 151 (1967).

Judge Mason has authorized me to state that he concurs in the views herein expressed.

      . We have excluded the subsequent portion of the record because the right of allocution had been extended to the accused and his counsel had been fully heard.

      . The two rules are identical in every respect except that the words “circuit court” are used in 885 with the words “lower court” used in 1085.

      . Rice v. Olson, 324 U. S. 786, 89 L. Ed. 1367, 65 S. Ct. 989 (1945).


author: Moylan, J.,

text:
    RISQUE W. PLUMMER, Individually and as Executor of the Estate of Nelle W. Murray v. A. CALVIN WASKEY et al.
    [No. 67,
    September Term, 1976.]

      Decided February 1, 1977.

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

      Risque W. Plummer and Daniel B. Leonard for appellant.

      William A. Fisher, Jr., with whom were Semmes, Bowen & Semmes on the brief, for appellees.
   Moylan, J.,

delivered the opinion of the Court.

Nelle W. Murray died on August 13, 1975, at the Baltimore County General Hospital, where she had been taken two weeks earlier. She was 82 years of age. She had no children. The closest remaining relatives were second cousins.

On August 22, the appellant, Risque W. Plummer, who had been Mrs. Murray’s lawyer for some 25 years, submitted for judicial probate a conformed carbon copy of a Last Will and Testament executed by the decedent on August 17,1967, and a Codicil thereto dated July 22, 1973. In his petition for probate, Mr. Plummer stated that he had made a diligent search for the original of the aforesaid will and codicil thereto but was unable to find the original of either of said instruments. The conformed carbon copies were the copies that Mr. Plummer had retained in his files after he had prepared the aforesaid instruments. He prayed that he be appointed personal representative of the decedent’s estate, since he was named as executor in the will.

In the will, Mrs. Murray made numerous bequests, including the bequest of her silverware and her diamond and pearl jewelry to the appellant’s wife, Constance B. Plummer. She also provided that the rest, residue and remainder of her property and estate was to go to Mr. and Mrs. Plummer. In the codicil, Mrs. Murray revoked many of the cash bequests she had made in her aforesaid will. The bequests to Mr. and Mrs. Plummer remained the same.

A hearing was held on the matter in the Orphans’ Court of Baltimore County, at which the appellees as next of kin of Mrs. Murray appeared without counsel. None of them objected to the probate of the will. The sole issue before the court was whether the legal presumption of revocation which arose from the fact that the original will and codicil thereto had been in Mrs. Murray’s possession and could not be found at the time of her death was rebutted by the evidence. The two judges of the court who heard the case were divided as to whether the presumption had been overcome and, therefore, probate was denied. This is an appeal from that order of the Orphans’ Court.

On appeal, the appellant argues that the legal presumption of revocation had been rebutted by the evidence. We proceed, therefore, to recount the evidence as presented at the hearing.

The appellant, Risque W. Plummer, Esquire, had been the decedent’s attorney for approximately 25 years. He first represented her in connection with the settlement of the estate of her stepmother, whose will left the house at 7308 Liberty Road, in which Mrs. Murray was living at the time of her death, and its contents to Mrs. Murray. During the next two decades, Mr. Plummer performed various other legal services for Mrs. Murray. He obtained a divorce for her from her husband, who had deserted her some 20 years earlier; to supplement her Social Security income, he legally invaded the principal of a trust estate established by her father; he drew numerous wills for her; he settled many small insurance claims. He also performed various personal services for the decedent, who had been deaf since childhood. (Everyone communicated with Mrs. Murray in writing; she, however, was able to speak.) He had a special telephone installed for her; he helped her get her Social Security; he had the assessment lowered on her house. Mr. Plummer testified that Mrs. Murray “ran me ragged, so to speak, for 25 years, and I never refused her and always made myself available to her .. . [W]hen she got to the point where she couldn’t get around too well I would go to her house and I have been there hundreds of times over 25 years. . .” He testified that since Mrs. Murray lived very frugally, he did not know that she had anything to compensate him with, so he charged her “very, very nominal” fees and in many instances none at all.

During the years, Mrs. Murray had a close relationship with both Mr. and Mrs. Plummer. She communicated with both of them on a regular basis, sending a card or a letter to them one, two or three times a week up until the time of her death. She would also call them on the phone frequently. Mrs. Murray always invited Mrs. Plummer to come with Mr. Plummer. Mrs. Plummer testified, however, that she did so only when Mrs. Murray really insisted and on special occasions like Christmas, Easter, Mrs. Murray’s birthday, and several other times. She testified that she enjoyed a pleasant relationship with Mrs. Murray and that she was apparently the only person who could communicate orally with the decedent — Mrs. Murray was able to read Mrs. Plummer’s lips.

Mr. Plummer testified that over the years he had drawn numerous wills for Mrs. Murray. In each of them, Mrs. Murray named him as executor. In the first will that Mr. Plummer prepared, Mrs. Murray named him as one of three residuary legatees; in the second will, he was named as one of two residuary legatees; and in the third will, he was named as the sole residuary legatee. Mr. Plummer testified that as time passed, Mrs. Murray developed a fondness for Mrs. Plummer and, as a result, in subsequent wills both Mr. and Mrs. Plummer were named as residuary legatees.

Because Mrs. Murray had named him as one of her beneficiaries, Mr. Plummer purposely referred her to outside counsel after he drew each will to make sure that she understood what she was doing and to have outside counsel examine her regarding her competency. In order to execute the two wills Mr. Plummer drafted for Mrs. Murray in 1953 and the one in 1955, he referred her to C. Keating Bowie, Esquire, who had an office in the same building as Mr. Plummer. Mr. Bowie examined Mrs. Murray on each occasion to make sure that she understood the contents of the will, that she was not influenced in any way in making the bequests and that she was competent to execute the instrument.

A letter from Mrs. Murray to Mr. Plummer dated September 27, 1955, which Mr. Plummer had kept in his file, was introduced into evidence. In the letter Mrs. Murray stated that she did not want any “unpleasantness from my various distant relatives” because she had mentioned Mr. Plummer in her will. She suggested that Mr. Plummer insert the following clause’in the will:

“For the help my attorney & executor has given me on numerous occasions, knowing I was alone and handicapped by loss of hearing I am remembering him in this will. He has never in any way tried to influence me in making any will — He knew nothing whatever of my plans until I gave him lists.”

As to the wills Mr. Plummer drafted for Mrs. Murray in 1963, 1965 and 1967, he referred her to Richard H. James, Esquire, another attorney in the same office building (Mr. Bowie had moved to another office building). Mr. James followed the same procedure as Mr. Bowie. At the time of the execution of the codicil on July 22, 1973, Mr. Plummer prepared and Mrs. Murray signed a statement, witnessed by a Francis J. Fagan and Lucille M. Fagan, neighbors of Mrs. Murray’s who had also witnessed the codicil, stating that the codicil expressed her wishes and that she fully understood it.

Mr. Plummer testified that he always gave the original of each instrument, including the will and codicil in question, to Mrs. Murray and kept a conformed carbon copy in his file. Mr. Plummer told Mrs. Murray to put the instrument in a safe place, such as her safe deposit box. He told her to destroy the prior will whenever she had a new will drawn. Mr. Plummer never asked Mrs. Murray, however, where she put a will, although he stated that Mrs. Murray preferred to keep all of her possessions around her, including articles which should have been in the safe deposit box.

Before they moved to Florida in April of 1975, Lucille Fagan and her husband had been Mrs. Murray’s neighbors for approximately 25 years. Mrs. Fagan testified that she and her husband on many occasions took care of Mrs. Murray when she was ill or otherwise needed them. When asked what the relationship between Mrs. Murray and Mr. Plummer was over the course of the 25 years, Mrs. Fagan stated:

“[T]here never was anyone so attentive to a lonely old woman as Mr. Plummer. And I know this for a fact because I lived practically with Nelle. . . . [I]f Nelle’s water came down her fireplace it was Mr. Plummer that she called. He — anytime, snow storm, she called him and she respected him. . . . [A]nytime that she needed anything she called Mr. Plummer.”

The relationship between Mrs. Murray and Mr. Plummer was such that Mrs. Murray gave Mr. Plummer a general power of attorney in an instrument dated July 24, 1972. Mr. Plummer filed the instrument with the Maryland National Bank, Woodmoor Branch, where the testatrix had accounts and a safe deposit box. In his letter transmitting the power of attorney to the bank, he stated that it was to be used in case of an emergency.

The close and amicable relationship between Mrs. Murray and Mr. Plummer, however, changed shortly before her death. In the summer or fall of 1974, Mrs. Murray asked Mr. Plummer if he knew of a broker, since her broker had gone out of business, who could help her with stock transactions. Mr. Plummer suggested his son, Randolph (Randy), a registered broker with Kidder-Peabody & Company. Mrs. Murray made approximately five stock purchases through Randy from November 8, 1974, through February 26, 1975. In April of 1975, Mrs. Murray began writing to Mr. Plummer and Kidder-Peabody, however, complaining that she had not received one or two of these securities. In her letter to Mr. Plummer of May 16,1975, she wrote, in pertinent part:

“With you and Connie main beneficiaries in my will, am trying to leave as much as possible to pay you for the help you have given me. (I know C. doesnt understand this). But I can assure you, it is true. Am trying to leave the property in as good condition as possible to bring a good price.”

Mr. Plummer testified that Randy immediately expedited delivery of these securities to Mrs. Murray. Mrs. Murray, however, continued to worry about the securities and complained about not receiving her cancelled checks, with which she had paid for the securities. On June 18, 1975, Mr. Plummer and his son went to see Mrs. Murray. They found that she had in fact received all of the stock certificates and all of the cancelled checks.

Mr. Plummer testified further that Mrs. Murray then became angry with the Maryland National Bank, Woodmoor Branch, thinking that they had her stock certificates. On June 27, she had Mr. Plummer open an account for her at the Union Trust Company and gave him a limited power of attorney over that account. She then gave Mr. Plummer the keys to her safe deposit box at Maryland National and had him close out her accounts and the safe deposit box, pursuant to the general power of attorney given him in 1972. Mr. Plummer gave Mrs. Murray the contents of the safe deposit box. In a letter to the Maryland National Bank, Woodmoor Branch, postmarked the evening of July 28,1975, the night Mrs. Murray was taken to the hospital, but dated August 3, 1975 (Mrs. Murray, Mr. Plummer testified, was a week ahead of herself during the latter months of her life), Mrs. Murray complained that all of her stock certificates were not in the contents of the safe deposit box. In the letter she stated that Kidder-Peabody wrote her that all stock certificates were sent to the Maryland National Bank but that the Baltimore Gas & Electric and the Ohio Edison stock certificates were not in the contents of the safe deposit box that Mr. Plummer had closed out. A portion of the letter stated:

“... The atty I had at that time should have collected them along with contents of safety box but made no mention of them. He seemed very stupid & I am too old & so very ill. I must have some peace the rest of my life. He kept the last will I had made. Tho he never had full power of atty only limited. I have never once given any one full p. of atty....
If he showed you any full p. of atty it was evidently forged.”

When questioned by the court whether he had any falling out with the decedent or whether there was any dissension that occurred during the last few months of her life, Mr. Plummer stated:

“None to my knowledge, if Your Honor please. She apparently got — she began going down hill very rapidly toward the end there. She was either 82 or in her 82nd year. The death certificate and the hospital records mention senility as one of her problems at the time. As her condition worsened then to me it seemed as if she became mad with the world and everybody connected with it. And I can assure Your Honor that I never knowingly did anything to offend her, anything other than to try to assist her with her problems. But this unfortunate incident about she not thinking that she had received her stock certificates and cancelled checks, in thinking that the bank had something to do with it or that I should have gotten them for her under my power of attorney. She, in her late confusion, just before she died she did apparently get mad with me at that time, but if she destroyed her will, which I do not think she did, she certainly did not know what she was doing and could not possibly, in my judgment, have had the capacity to appreciate what she did at that time. And I think her doctor will indicate as much if he, if Your Honor wants to hear any medical testimony.”

The month before she died, Mrs. Murray wrote several letters to John Kepler Knight, a second cousin and one of the appellees herein. In many of the letters she expressed her distrust of Mr. Plummer. In early July, Mrs. Murray wrote her cousin that she would send him a “restricted” power of attorney. Mr. Plummer subsequently prepared the power of attorney, but the form was never executed. On July 20, Mrs. Murray wrote to Mr. Knight:

“What did P [Plummer] tell you when you called him? Just afterward he wrote me he would bring his secretary here & give her the Power of atty which shows he is determined to grab everything & you would get nothing whether you want the job or not. That shows all too plainly how little he is to be trusted. I’ve never liked him even a little bit but didn’t know who to get & had to have someone because Myra’s 1st husband’s people were so bad.
You should see the nutty letter came from P this Am. All, the bunch of LIES!
Of course I’ll Ignore it.
Nelle”

Mr. Plummer explained below that his secretary was a Notary Public and was going over to Mrs. Murray’s home merely to notarize the power of attorney.

On July 23, Mrs. Murray wrote to Mr. Knight:

“I suppose its easy to be having been impressed after talking to P once but I was not. & have always regretted not having asked the Trust company to recommend some one else after all the worry and misery he has caused me in the past over 14 [sic] years. Please, as a blood relative, do not tell him I was thought to be dying. He wrote me not long ago that he would bring his secretary here and give hgr the power of atty! My God! the last thing I need is two of him so I ignored it. And that in spite of your being so close & whether or not you are interested. I am really afraid of that guy since he has so little scruples. Protect me if you can.
... He’s practically away most all of the time & the farther away the better it suits me. He’s just a complete conceited egoist. If he comes here I will not admit him. Never know what he will do and he has no right to force himself on me. Please don’t mention anything to him about lawyers referral service or he’d try to start something right away. Of course you don’t know him like I do. Nor do your friends who are attys. Remember my experience hasbeenoverl4J^icl_^gars!
Never forget that in spite of all his smooth talk.
And I do not lie.
Nelle”

Mr. Knight testified that during the last few months of Mrs. Murray’s life, he visited her about once a week. Mrs. Murray told Mr. Knight that she knew her health was failing and that she could die at any time. As late as two to three weeks before she was taken to the hospital, Mrs. Murray had told Mr. Knight that Mr. and Mrs. Plummer were the beneficiaries of her will.

On the Saturday prior to Mrs. Murray’s going to the hospital, when asked by Mr. Knight where the will was, she replied that Mr. Plummer had it. Mr. Knight testified that on that particular Saturday, she was mentally competent and fully understood both the question and answer. Mrs. Murray sought Mr. Knight’s advice regarding another lawyer. She indicated to Mr. Knight that she was fearful Mr. Plummer would be out of town when she died and that she would like to make some changes in her will. Mr. Knight on that occasion communicated with Mrs. Murray by writing. The writings appear in the record. Mr. Knight wrote, in pertinent part:

“If you want to drop Plummer, here’s what you’ll have to do:
Notify him and pay him any fee you owe him.
Then you must draw a new will. Once the new will is made and signed and witnessed — Plummer will be out of the picture. You will also have to cancel his Power of Attorney.”

Mr. Knight recommended another attorney to Mrs. Murray and told her he would bring him to see her. He told Mrs. Murray to write down what she wanted in the new will.

On Monday, July 28, 1975, Mr. Knight and William A. Fisher, Jr., Esquire, of the law firm of Semmes, Bowen & Semmes, went to see Mrs. Murray. When they arrived, Mrs. Murray, however, was lying on the floor in the hallway — she had had one of her “falling spells.” She was very distraught, unorganized and irrational and was unable to conduct any business. As a result, after Mr. Knight saw that Mrs. Murray was alright sitting on the sofa, he and Mr. Fisher left. Mr. Knight testified that Mrs. Murray frequently would have these spells but would “snap out” of them. That night at about 1 a.m., Mr. Knight received a call from a neighbor of Mrs. Murray’s indicating she had been taken to the hospital.

Mrs. Murray was admitted to the Baltimore County General Hospital during the early morning hours of July 29, 1975, suffering from possible cerebrothrombosis, hemi-paresis of the left side, arteriosclerotic heart disease, chronic heart failure, dehydration, and senile dementia. She died on August 13,1975.

On the Saturday following Mrs. Murray’s death, Mr. Plummer and his secretary met with Mr. Knight at Mrs. Murray’s home. Mr. Knight had the key to the house. Mr. Knight gave Mr. Plummer a manila folder containing a number of securities. Upon searching the house, they found other securities in an old refrigerator. They were unable, however, to find the will or codicil in question. They met again at the house on the next morning. At this time, they found the securities Mrs. Murray had purchased through Kidder-Peabody. The securities were under a blanket on the seat of a chair in the dining room where Mrs. Murray had always sat. During the course of this and further searches, however, there was no trace of the will and codicil. When asked at the hearing to explain what, in his opinion, might have happened to the will and codicil, Mr. Plummer stated, “[T]he will is either still somewhere in that house or it has been removed by someone whose identity 1 could not assess.”

Where it is shown that a will or codicil was in the maker’s possession and custody but cannot be found at the time of death despite a diligent search, a rebuttable presumption arises that the maker of the instrument destroyed it animo revocandi. Measley v. Housman, 144 Md. 339, 124 A. 906; Gilbert v. Gay brick, 195 Md. 297, 73 A. 2d 482; Tilghman v. Bounds, 214 Md. 533, 136 A. 2d 226; New York Library Assn. v. Atwater, 227 Md. 155, 175 A. 2d 592. The burden to prove the contrary was on the appellant, who sought to probate the conformed carbon copies. Gilbert v. Gaybrick, supra, at 195 Md. 396; New York Library Assn. v. Atwater, supra, at 227 Md. 157.

This presumption may be overcome by various evidence. In speaking of the ways in which this presumption may be rebutted, 95 C.J.S., Wills, § 385, at 285-287, states:

“Whether the presumption be regarded, as it has been by some authorities, as one of law, or, as by others, as one of fact, a question which, it has been pointed out, is not material as far as the burden of adducing evidence to the contrary is concerned, it may be rebutted by circumstances which tend to show a conclusion to the contrary, as by showing the absence either of destruction of the will before the testator’s death or of intention to revoke, or by proof that the will was lost or destroyed before his death without his consent, or that it was destroyed by accidental means or some unauthorized agency. Furthermore, the presumption may be rebutted by proof of the circumstances of the testator or of his relation to persons involved, by evidence of his acts or declarations, or by evidence showing existence of the will at a time when the testator was incapable of revoking it, as by evidence that the testator was mentally incapacitated to revoke it and that he never thereafter regained the mental capacity essential to a revocation, or by showing that he did not have possession of the will after its execution, or access thereto, or that he had no opportunity to revoke. In such event, the courts are justified in concluding that the presumption has been rebutted, it being unnecessary to determine what happened to the will. Whether the presumption has been overcome depends on whether the evidence shows that it is unlikely that the testator destroyed his will, and the presumption that the testator did not intend intestacy may be considered to rebut the presumption.”

The appellant argues that Mrs. Murray made statements up until the time of her last attack on July 28 indicating that she had not revoked the will but that the will was still in existence. He refers to her statement in the letter to him written by Mrs. Murray on May 16,1975, regarding the stock purchased from Kidder-Peabody where she acknowledged that Mr. and Mrs. Plummer were her main beneficiaries and that she was only sorry that she could not leave them more; to her statement in the letter written to the Maryland National Bank on July 28, the day she had her last attack, indicating that Mr. Plummer “kept the last will I had made”; and to her statement to Mr. Knight on July 26 when she indicated that Mr. Plummer had the will. The appellant argues that though Mrs. Murray mistakenly believed that Mr. Plummer had the will in question that her statements, nevertheless, indicate that she did not revoke her will.

The declarations of a testator, made shortly before death or at a time when he is physically unable to revoke a will, that his will is still in existence are admissible to rebut the presumption of revocation arising from the fact that the will cannot be found after his death. 3 Page, Wills (Bowe-Parker Rev. 1961), § 29.146; Annot., Proof of nonrevocation in proceeding to establish lost will, 3 ALR2d 943; N. Y. Library Assn. v. Atwater, supra. Although Mrs. Murray’s statement in her letter of May 16 to Mr. Plummer indicated that the will had not been revoked at that time, the statements she made in July indicating that Mr. Plummer had her will are unclear, ambiguous and equivocal.

Mr. Plummer testified that Mrs. Murray was an intelligent and well-informed woman. He testified that he always gave Mrs. Murray the original of each will that he drafted for her. The only original will Mr. Plummer had in his possession at the time of Mrs. Murray’s death was the 1963 will. Mrs. Murray had made numerous handwritten notations on the original of that will and brought it to Mr. Plummer when she decided to execute the next will. Mr. Plummer had retained the original of the 1963 will in his file together with conformed carbon copies of all of the other wills. The Court questioned Mr. Plummer:

“(The Court) All right. When you saw this attached to her will, when you saw this change and there were other markings and another piece of paper, did you advise Mrs. Murray of the law regarding wills and what happens to them when there are changes made and what happens if you can’t find an original?
A. Yes.
(The Court) Did you discuss all—
A. I am sure I did.
(The Court) —testamentary law with her?
A. In all the wills I had prepared for her over the years she knew precisely.
(The Court) Did she know that if the original executed copy of a will could not be found that there was a danger of not having a will probated? A. I don’t know that I ever specifically went into detail with her about that, but she was a very knowledgeable person. I had discussed the law with her many times and she would always come to me for these changes. I would prepare the will, give it to her to keep. She had a safe deposit box, I would tell her to be sure to put it in some safe place. I never pried into her affairs. I never asked her where she had put it or where she had kept it, anything of that sort, but she always took it with her. I put it in an envelope and gave it to her.”

The appellant argues further that the will embodied Mrs. Murray’s testamentary scheme held since the early 1950’s — that her second cousins should not inherit her property — and that she knew that this would be the result if she revoked the will without making a new will. The evidence indicated overwhelmingly, however, that Mrs. Murray, shortly before her death, was contemplating making a new will. She solicited Mr. Knight’s advice regarding another attorney. The evidence indicated that Mrs. Murray and Mr. Plummer had a falling out. Although there was senility at the time of Mrs. Murray’s death, the evidence indicated that there were periods in July of 1975 when she was mentally alert.

“It is said that the evidence which rebuts [the] presumption [of revocation] must be clear and satisfactory, or that it must exclude every presumption of revocation by the testator. It is said that strong proof is necessary, which means more than a preponderance of evidence, and less than proof beyond a reasonable doubt.” 3 Page, Wills (Bowe-Parker Rev. 1961), § 29.142, p. 706. The appellant’s reliance on the ambiguous statements of Mrs. Murray made shortly before her death and on a testamentary scheme held before her falling out with him obviously was not persuasive enough to convince both of the fact finders that the presumption of revocation was rebutted. The burden of persuasion was upon the appellant and we cannot say that the Orphans’ Court was in error as a matter of law because they were not so persuaded.

The appellant makes the claim that the presumption was improperly used and that the burden of persuasion was not properly upon him. He seeks to rely upon the treatment given to presumptions by our case of Evans v. State, 28 Md. App. 640, 349 A. 2d 300, applying constitutional principles laid down by the Supreme Court in Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), and In Re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970). We there held that in the criminal law the only legitimate presumption is one in the Thayer-Wigmore tradition which shifts to the party against whom the presumption operates only the burden of producing evidence and not the ultimate burden of persuasion. That type of presumption — merely shifting the burden of going forward — is dissipated (the bubble bursts) whenever the evidence to the contrary is sufficient to generate a genuine jury issue. Only this type of presumption may operate in the criminal law because the due process clause, according to Winship and Mullaney v. Wilbur, does not permit the ultimate burden of persuasion to be shifted to a criminal defendant on any issue.

This due process limitation on the operation of legal presumptions, however, does not operate in the civil arena. There, unhindered by the due process clause, the burden of ultimate persuasion as well as the burden of producing evidence may be allocated to either party on any particular issue as the emerging common law deems appropriate and fair. A presumption in the other tradition — the Morgan tradition — that remains in the case and that does not disappear like the bursting bubble is appropriate in the civil law. In our Evans opinion, we were careful to point out this distinction in footnote 40:

“Mullaney v. Wilbur’s reliance upon and indebtedness to the profound analysis of Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases,” 77 Yale L.J. 880 (1968), is apparent when the Supreme Court opinion and the law review article are read side by side. Professor Fletcher demonstrates convincingly that there are two distinct sets of rules and procedures at work in our law — ‘the model set by private litigation’ and ‘the model focusing on the justification for invoking criminal sanctions’ — and that much of our present-day confusion resulted from the tendency of 19th century jurists falsely to analogize the latter to the former... .
What emerges is that the use of a presumption in the Morgan tradition may remain perfectly appropriate for civil litigation, where burdens even of ultimate persuasion may shift back and forth throughout the course of a trial. It is not inappropriate in such civil litigation to require a person asserting a position to bear the burden of proving that position. ‘The proponent of an issue bears the burden of that issue.’ Nor is it inappropriate to adjust the burden of persuasion where facts are ‘peculiarly within the knowledge’ of one of the parties. McCormick, Evidence (1954), at 675. Such a tradition, however, is not appropriate as a model for the criminal law. . .”

The presumption of revocation in this case is in that Morgan tradition of presumptions. It did not shift to the appellant a mere burden of going forward and producing some evidence that the will was still in existence, upon the production of which the presumption would be totally dissipated. It rather shifted to him the fuller burden of ultimate persuasion — the risk of nonpersuasion — on this issue. The presumption remained in the case unless and until he persuaded the fact finder that it was rebutted. His was the burden of persuasion and he failed to persuade. Nothing we said in Evans by way of limiting the type of presumption available in the criminal trial had any erosive effect upon this very different type of presumption which may operate, and does operate, in the civil law.

Judgment affirmed; costs to be paid by appellant.