author: Powers, J.,

text:
    JOSEPH UNDECK et ux. v. CONSUMER’S DISCOUNT SUPERMARKET, INC. et al.
    [No. 44,
    September Term, 1975.]

      Decided December 30, 1975.

      The cause was argued before Orth, C. J., and Powers and Moore, JJ.

      Martin S. Protas, with whom were Harry Protas, Robert L. Kay, Jordan M. Spivok and Protas, Kay, Spivok & Protas on the brief, for appellants.

      Michael P. Chervenak, with whom was Francis J. Ford on the brief, for appellee Consumer’s Discount Supermarket, Inc. Francis X. Quinn for other appellee.
   Powers, J.,

delivered the opinion of the Court.

In this products liability case the efforts of Joan Undeck and her husband to win damages in the Circuit Court for Montgomery County were frustrated when the trial judge directed verdicts in favor of the two defendants at the close of the plaintiffs’ evidence on the issue of liability. This appeal is from the judgments entered on those verdicts.

Mrs. Undeck, joined by Joseph Undeck, her husband, sued Consumer’s Discount Supermarket, Inc. and Sterling Drug, Inc. The second amended declaration alleged that Sterling Drug, Inc. manufactured and distributed a disinfectant-cleaner known as Lysol, and that Consumer’s Discount Supermarket, Inc. operated a retail grocery where it offered Lysol for sale. Alleging that Mrs. Undeck purchased a bottle of Lysol, packaged in a cardboard container, and was injured when the bottle fell from its package and shattered on the floor of the supermarket, the Undecks claimed damage against both defendants in one count based upon breach of warranty and in another count based upon negligence. In a third count both claimed damages for detriment to their marital relationship.

At the trial, held before a jury and Judge John F. McAuliffe in the Circuit Court for Montgomery County on 14 January 1975, the evidence consisted solely of the testimony of the plaintiffs. When a problem arose in scheduling the testimony of a medical witness, consideration was given to bifurcating the trial, but no decision was reached. Instead, it was agreed that since the only additional evidence would relate to damages, the court should entertain at that time motions of the defendants for directed verdicts on the question of liability. The motions were made and argued. Both were granted.

In considering the motions it was the duty of the trial judge, with respect to any issue, to look upon all credible evidence, together with all inferences fairly deducible therefrom, in a light most favorable to the parties against whom the motions were made, and to determine whether the whole rose above the level of speculation, conjecture, or mere possibility, and was sufficient to require submission of the issue to the jury. Plitt v. Greenberg, 242 Md. 359, 367-68, 219 A. 2d 237 (1966); Buchanan v. Galliher, 11 Md. App. 83, 87-88, 272 A. 2d 814 (1971).

We summarize, and to some extent paraphrase, Judge McAuliffe’s oral ruling on the motions:

There is no evidence of record to involve the defendant Sterling Drug, Inc. in any manner in this case, and the motion must be granted as to that defendant. Even if that were not so, there is no sufficient evidence of negligence by the manufacturer, and no evidence that any applicable warranty was not met at the time the article left the control of the supplier and passed into the control of the retailer.
The evidence is not sufficient to identify the defendant Consumer’s Discount Supermarket, Inc. as the retailer. The only portion of the plaintiff’s testimony which dealt with the identification of the store was her statement that she was “In the Co-op on Georgia Avenue, Wheaton, Maryland.” There was no proof that the store was in any manner owned or leased or controlled by Consumer’s Discount Supermarket, Inc., a corporation, or, in fact, that such corporation ever existed.
Even if the problem of identity had been surmounted the motion would have to be granted as to this defendant as well.
The evidence does not permit the plaintiffs to invoke the doctrine of res ipsa loquitur to show negligence. The seller’s implied warranty does not extend to the container.

Appellants contend on appeal that the evidence established a prima facie case of identity of Consumer’s Discount Supermarket, Inc.; that a product label offered in evidence but not admitted would prove the identity of the manufacturer of the product; that the evidence established a prima facie case of negligence; and that the statutory implied warranty extends to product packaging.

Identification of the Manufacturer

We readily affirm the judgment in favor of appellee Sterling Drug, Inc. There was no reference whatever in the evidence to that party by any name, correct or incorrect, and indeed no reference to any person or entity as manufacturer or distributor of the product. For all the evidence tells us, the “Co-op” may have concocted the preparation on its own premises. As the trial judge commented:

“That it may have been the subject of proof by way of reading into the record Answers to Interrogatories or by way of pretrial motion or request for admission of facts, is not now before me. I pass only on the evidence of record.”

It is argued here that the evidence would have been sufficient to prove that Sterling Drug, Inc. manufactured Lysol, had not the trial judge erred in refusing to admit in evidence several boxes or cartons which were marked for identification, but were not admitted in evidence. They were described as boxes of Lysol purchased months later, either at the same store or elsewhere. At least some of them were offered as tending “to prove a course of conduct”, presumably because the cartons appeared “to be opened at the top and sliced in various ways”. Objections to their admission in evidence were sustained.

Although the transcript and the exhibit list show that they were marked for identification, the cartons were not included in the record sent to this Court. The exhibits were not offered to show the name of the manufacturer. We can only guess that a manufacturer’s name might have been shown on the carton. The rulings on the admissibility of the exhibits, as offered, were correct.

Identification of the Retailer

Whether there was evidence sufficient to show, or permit a rational inference, that the other defendant named in the pleadings, Consumer’s Discount Supermarket, Inc., was the retailer involved in the described transaction, is a more difficult question.

In arriving at the answer we must keep in mind that the question is not whether a sale was made to Mrs. Undeck. The evidence was clearly sufficient to show that there was a sale, Sheeskin v. Giant Food, Inc., 20 Md. App. 611, 626, 318 A. 2d 874 (1974), aff'd., Giant Food, Inc. v. Wash. Coca-Cola, 273 Md. 592, 332 A. 2d 1 (1975), and that the “store” was the seller. The question is, who was the “store” ? The amended declaration alleged that the seller was Consumer’s Discount Supermarket, Inc. Each of that defendant’s pleas was a general denial. Pleadings are not evidence. We must look to the evidence to find the answer.

The only words used by Mrs. Undeck to name the store were, as the trial judge observed, “the Co-op”. Appellants now contend that other evidence identified the store by name. They find it in two questions put to her, and say that her answers adopted counsel’s factual assumptions, and made them evidence. The first, after Mrs. Undeck had testified that she purchased Lysol again the next year, was:

“Q Did you purchase any from the Consumers Discount store that you were at in September 1971 where your accident occurred? ”

and she answered:

“A This one was and I think there is another one.”

Later the record shows this question by her counsel, and her answer:

“Q Returning to the date of September 10, 1971, and the Consumers Discount Supermarket, when you removed the bottle of Lysol from the shelf, as you stated you did, can you describe the display of Lysol products at that time on that shelf on that day?
“A No, I couldn’t.”

The name, “the Co-op” used by Mrs. Undeck suggests no association whatever with the corporate defendant. The two questions by her counsel which we have quoted above, each in a different degree, may or may not suggest some identification with the corporate defendant. A difficulty with questions of this kind Is that they are objectionable, either as leading or as argumentative, at least to the extent that they include or incorporate by assumption a fact not otherwise proved. 3 Wigmore, Evidence, § 771 (Chadbourn rev. 1970) says that this type of question:

“ * * * may lead a witness to reply without taking care to specify that his answer is based on that assumption, and may thus commit him to an assertion of the assumed fact, though in fact he may not desire or be able to do so.”

McCormick, Evidence (1972 ed.), § 7, characterizes this kind of question not as leading but as argumentative, and objectionable for that reason.

No objections were made, however, to the questions which we have set out above from the transcript in this case. Therefore, they are in the case for whatever probative value they may have, Old v. Cooney Detective Agency, 215 Md. 517, 526, 138 A. 2d 889 (1958), and to the extent that the answers of the witness adopted as facts the assumptions stated in the questions, those facts are in evidence. We think it is rational to infer that the answer of the witness to the first of the two questions we have quoted above did adopt the facts assumed in the question. The actual question was asked in the first four words, “Did you purchase any * * * ”, and all of the rest, “ * * * from the Consumer’s Discount store that you were at in September 1971 where your accident occurred? ” was, it is true, supplied by the questioner. But from the sequential arrangement of the question and the assumption, as well as from the responsive nature of the answer, we think that Mrs. Undeck could properly be understood as saying that it was at the Consumer’s Discount store in September, 1971, where her accident occurred.

In the second of the two questions and answers we have quoted above, the effect is reversed. The only real inquisitorial part of the question is the very last part, “ * * * can you describe the display of Lysol products at that time on that shelf on that day? ”, to which the witness gave a negative response. The fact-supplying portion of the question was the first part, and may well have been subordinate in the mind of the witness when she answered, in effect, that she could not describe the display. Her answer neither adopts nor rejects her questioner’s assumption. Presumably, the answer would be the same, with or without a name for the place where she saw the display. The effect is well expressed in McCormick, Evidence (1972 ed.), § 7, where the author says:

“Oftentimes, the question will be so separate from the assumption that if the witness answers the question without mentioning the assumption, it is impossible to ascertain whether he ignored the assumption or affirmed it.”

From this analysis of the evidence, we conclude that the view of it most favorable to the plaintiffs is that Mrs. Undeck made her purchase of Lysol at “the Consumer’s Discount store”. The question now is whether that degree of identification in the evidence is sufficient to permit a jury to find that the seller was the defendant Consumer’s Discount Supermarket, Inc.

The Court of Appeals held that a plaintiffs evidence was not sufficient to identify by name the defendants being sued, in Vernon v. Aubinoe, 259 Md. 159, 269 A. 2d 620 (1970). There the plaintiff sued three individuals as owners of the property upon which she fell because of a defect in the surface, and sustained injuries. There were several references in the testimony to “The Aubinoe Company”, “the Aubinoe people”, a “resident manager”, and to “the construction man”, as well as a reference to “the construction department of Alvin L. Aubinoe, Inc.” The trial court granted a defense motion for a directed verdict at the close of the plaintiffs evidence. The Court of Appeals reviewed the evidence and held, at 165:

“The evidence presented falls far short of establishing ownership or control of the premises by any of the defendants.”

Greene v. De La Salle College, 237 Md. 615, 205 A. 2d 395 (1964), was a similar case, and reached a similar result, but there the failure of proof had nothing to do with the sufficiency of the identification of the landowner by name. The case turned on the failure of the evidence to show whether the location of the alleged defect was inside or outside the boundary between the public street and the land owned by De La Salle College.

We know of no other civil cases in Maryland which are analogous, and there is little authority elsewhere. See Annot., 51 A.L.R.3d 1344 (1973). Three decisions of the Supreme Judicial Court of Massachusetts illustrate what we conclude is the common sense rule.

In Herman v. Fine, 314 Mass. 67, 49 N.E.2d 597 (1943), the question was whether the Jacob Fine being sued was the same Jacob Fine against whom a judgment had been entered in another case. The court said that, “ ‘bald identity of name without confirmatory facts or circumstances’ seems never to have been considered quite sufficient to prove identity of person.” It said that very slight evidence might be enough, but something more than identity of names was necessary. Some years earlier the same court had held, in Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 176 N. E. 114 (1931), that testimony of a witness that a cigar counter was run by “Schulte, Inc.” was enough to permit the jury to infer that the witness meant “D. A. Schulte, Inc.”, the defendant.

The Massachusetts court again considered the name identity question in Nugent v. Popular Markets, Inc., 353 Mass. 45, 228 N.E.2d 91 (1967). It reversed the ruling of the Appellate Division, which had ruled that the evidence provided no more than a bald identity of names, and, under Herman v. Fine, supra, was not enough. The defendant named in the suit was Popular Markets, Inc. The plaintiff had testified that he purchased food at “the Popular Market, where he usually shopped for groceries, in the Sixteen Acres shopping center in Springfield”. In a notice letter sent by plaintiffs counsel to the defendant, by its full corporate name, and received in evidence, the Supreme Judicial Court found something more than bald identity. The court also pointed to the unlikelihood, and possible illegality, of there being two separate businesses in the same locality with names so similar.

We hold that the rule is that in proving the identity of an individual party in a case, something more than bald identity of names is required; and that in proving the identity of a corporate or other business entity which is a party in a case, something less than precise identity of names may be sufficient.

In expressing this rule we reemphasize that precision in the proof of names of parties involved in litigation is highly important, especially because such proof is ordinarily easy to obtain and simple to produce, and because failure to produce it may prevent the decision of a case on its merits. We shall proceed to consider the merits of the case before us only because we are willing to say that the evidence in this case that it was the defendant Consumer’s Discount Supermarket, Inc. which sold the Lysol to Mrs. Undeck amounted to one gossamer greater thar a scintilla.

Sufficiency of the Evidence to Show Negligence

Appellants make no claim that the evidence shows any negligence, other than that which they say may be inferred, by the exercise in logic which we sometimes refer to as res ipsa loquitur.

We refer to Joffre v. Canada Dry, Inc., 222 Md. 1, 158 A. 2d 631 (1960); Leikach v. Royal Crown, 261 Md. 541, 276 A. 2d 81 (1971); Sheeskin v. Giant Food, Inc., 20 Md. App. 611, 318 A. 2d 874 (1974); and Giant Food, Inc. v. Wash. Coca-Cola, 273 Md. 592, 332 A. 2d 1 (1975). In those cases the Court thoroughly reviewed the applicable authorities, with particular consideration in the latter three opinions of the “exclusive control” criterion of res ipsa loquitur. That requirement was held to be met by proof “that there is a greater likelihood that injury was caused by defendant’s negligence than by some other cause”, Leikach, 261 Md. at 550, quoted in Sheeskin, 20 Md. App. at 616.

In the Leikach and Giant Food cases there was extensive and detailed evidence relating to the manufacture, delivery, custody, and control of the offending product. It was not questioned in either of those cases that the misadventure with the product resulted from a defect, and proximately caused the plaintiff’s injuries. In the case before us, the evidence begins with the sale to Mrs. Undeck, and, if anything, shows that there was no discernable defect at that time. There was no evidence that at any time, before or after the sale, there was a latent defect. In short, there was a total lack of any evidence to show negligence, or from which negligence could be inferred.

The trial judge was correct when he said that there was no evidence sufficient to permit the jury to find that Consumer’s Discount Supermarket, Inc. was negligent with respect to the bottle of Lysol sold to Mrs. Undeck.

Sufficiency of the Evidence to Show Breach of Warranty

The evidence indicates that the product Mrs. Undeck purchased was a liquid. The liquid was contained in a glass bottle. The glass bottle was contained in a cardboard carton or box. The trial court expressed the view that the statutory implied warranty did not extend to the carton. We find it unnecessary to rule on that question in this case.

Breach of warranty, like negligence, must be proved. The need for proof was discussed by Judge Levine for the Court of Appeals in Giant Food, Inc. v. Wash. Coca-Cola, supra, at 608-09. While he was discussing the warranty of the manufacturer, not the retailer, the principles are the same. He said:

“That the plaintiff in a breach of warranty action must prove that the article sold did not at the time of sale conform to the representations of the warranty is not open to question, Hacker v. Shofer, 251 Md. 672, 248 A. 2d 351 (1968); Great Atlantic, Etc., Co. v. Adams, 213 Md. 521, 132 A. 2d 484 (1957). Maryland is not alone in this view. Butterfield v. Pepsi-Cola Bottling Co. of Wichita, 210 Kan. 123, 499 P. 2d 539, 542 (1972); Lucchesi v. H. C. Bohack Co., Inc., supra, 8 UCC Rept. Serv. at 329; Cooper v. Mason, 14 N.C.App. 472, 188 S.E.2d 653 (1972). In Butterfield, heavily relied upon here by the customer, the court quoted from a prior decision:
‘ “ Only recently we had occasion to point out that irrespective of the theory of recovery — negligence or implied warranty — a prerequisite to recovery against a manufacturer for a defective product is that the plaintiff must show the product was defective at the time it left the manufacturer’s control. . . .
' “ . . . Thus, it may be said as a general rule that there must be evidence from which it may reasonably be inferred that the defect existed at the time the product left the possession or control of the parly sought to be held liable.” ’ 499 P. 2d at 542 (emphasis added).
“The particular problem presented here, therefore, is whether the customer has presented sufficient evidence of a defect in the bottles at the time of delivery to the retailer to warrant submission of his case to the jury. Although he was referring to strict liability, what Dean Prosser said is instructive:
‘Strict liability [or warranty] eliminates both privity and negligence; but it still does not prove the plaintiff’s case. He still has the burden of establishing that the particular defendant has sold a product which he should not have sold, and that it has caused his injury. . . . The mere possibility that this may have occurred is not enough, and there must be evidence from which the jury may reasonably conclude that it is more probable than not. . . .
‘The plaintiff must prove . . . that he was injured because the product was defective, or otherwise unsafe for his use. . . .
‘Further, the plaintiff must prove that the defect was in the product when it was sold by the particular defendant. When on the evidence it is equally likely that it developed after the product left his hands, ... no liability is established on the part of any previous seller.
‘The bare fact that an accident happens to a product ... is usually not sufficient proof that it was in any way defective. ... On the other hand, the addition of very little more in the way of other facts, . . . may be enough to support the inference. . . .’ Prosser, The Fall of the Citadel, 50 Minn. L. Rev. 791, 840-44 (1966).
“In short, then, to allow the jury to decide whether there was a breach of the warranty, there must be some evidence beyond mere speculation which would enable the jury to rationally decide it is more probable than not that the defect existed at the time of sale, which in this case, would have been when the bottles were delivered to the retailer. Here, there was no such evidence. As with the proof of negligence in the context of res ipsa loquitur, the evidence presented here fails to establish a defect in the bottle when it was delivered to the retailer, but indicates a greater likelihood that at the moment of such delivery, there was no defect.”

There was no evidence from which the jury could have found that Consumer’s Discount Supermarket, Inc. breached any warranty that it made to Mrs. Undeck. The motion for a directed verdict was properly granted.

Judgments affirmed.

Appellants to pay costs.

      . Proof of its existence was not required. It was alleged in the declaration, and there was no special plea denying the allegation. Maryland Buie 342, § c 1 (i) and § c 2 (d).

      . No interrogatories were propounded to either defendant. Maryland Rule 417. No request to admit any matters of fact was filed. Maryland Rule 421. The plaintiffs took no depositions. Maryland Rule 401 et seq. In short, the plaintiffs employed no discovery procedures.

      . Had there been an omission of any part of the record which a party wished this Court to review, the omission could have been supplied upon motion under Maryland Rule 1027.

      . In a criminal case, Sallie v. State, 24 Md. App. 468, 332 A. 2d 316 (1975), we held that along with other circumstances shown by the evidence, identification of the defendant by name was enough. We cited and quoted from 1 Wharton’s Criminal Evidence, § 103 (Torcia 13th ed. 1972) where it was said, “Identity, then, can be presumed from names coupled with other circumstances”.

      . In Turner v. Hammond, 270 Md. 41, 310 A. 2d 543 (1973), Judge McWilliams said for the Court of Appeals, at 60:
      “All definitions of scintilla, at least in this context, are imprecise but if we assume it takes ten gossamers to make a scintilla then the appellees’ evidence before the Board falls well short of five gossamers.”

      . See Sheeskin, supm, 20 Md. App. at 629, footnote 6, where we commented on the applicability of the warranty to a bottle containing a carbonated drink. We did not consider there the paper carton which contained the bottles which contained the liquid.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    JAMES CECIL LAW, JR. v. STATE OF MARYLAND
    [No. 87,
    September Term, 1975.]

      Decided December 30, 1975.

      The cause was argued before Orth, C. J., and Powers and Melvin, JJ.

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

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Daniel J. Cassidy, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

This appeal marks the second time this Court is called upon to review the propriety of the convictions of James Cecil Law, Jr. of second degree murder and assault with intent to murder. In Law v. State, 21 Md. App. 13 (decided April 19, 1974; certiorari denied by Md. Ct. of Appeals July 25, 1974) we reversed the convictions and remanded the case to the Circuit Court for Charles County for a new trial. On January 29, 1975, after trial before the court, sitting without a jury, the appellant was again convicted of second degree murder and assault with intent to murder. Two questions are presented on this appeal:

1. “Was it error to deny Appellant’s Motion for Acquittal at his trial? ”
2. “Did the trial judge shift the burden of proof to the Appellant insofar as reducing the crime of second degree murder (and assault with intent to commit murder) to manslaughter or to justifiable homicide? ”

I

At a non-jury trial the sufficiency of the evidence is always before us when presented on appeal. Maryland Rule 1086. In determining sufficiency of the evidence we must view the evidence and all reasonably deducible inferences therefrom in the light most favorable to the State. So viewed, if the evidence is such that it would support a finding by the trier of fact, be it a jury or a court sitting without a jury, that the defendant is guilty beyond a reasonable doubt of the charges against him, the motion was properly denied; if the evidence would not support such a finding the motion was improperly denied. Iozzi v. State, 5 Md. App. 415 (1968); Kelly v. State, 16 Md. App. 533 (1973) aff'd 270 Md. 139 (1973); Carter v. State, 15 Md. App. 242 (1972).

The evidence presented at the re-trial was in basic outline the same evidence presented at appellant’s first trial. There is no need to repeat it here. See Law v. State, supra, pp. 15-25. After carefully reviewing the evidence before the trial court, we cannct say that the appellant was entitled as a matter of law to judgment of acquittal as to either of the charges against him. There were issues raised by the evidence which were properly submitted to the trier of fact. The trial court did not err in denying the motion.

II

On June 9, 1975, while appellant’s appeal to this Court was pending, the U. S. Supreme Court decided Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881. The narrow issue in Mullaney was whether the homicide law of Maine “requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process”. 421 U. S. 684, at 692. The Court held that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case”. 421 U. S. 684, at 704.

In Evans v. State, 28 Md. App. 640, this Court, in a scholarly opinion by Judge Moylan, thoroughly analysed the extensive and significant impact of Mullaney upon the procedural aspects of the criminal law of this State. In Evans we held, inter alia, that it is unconstitutional to impose upon a defendant in a criminal case the burden of proving, by any standard, his innocence as to any element of a crime, or to relieve the State of its burden of proving beyond a reasonable doubt any element of the crime charged.

We also held in Evans that “a verdict rendered in a court trial of murder in the second degree will bear scrutiny under Mullaney v. Wilbur if the judge, in the course of rendering his decision, indicates that he relied upon the now unconstitutional presumption of malice or that he in any way placed upon the defendant the burden of proving such mitigation as would reduce murder to manslaughter (mitigation fairly being an issue in the case).” 28 Md. App. at 663.

We further held in Shuck v. State, 29 Md. App. 33, that “under a fair reading of the broad principle enunciated in Mullaney v. Wilbur (See part IIB of Evans v. State), a constitutional allocation of the burden of persuasion in an assault with intent to murder case is mandated just as surely as is a constitutional allocation of the burden of persuasion in a felonious homicide case.”

In arriving at the guilty verdicts in this case the trial judge in an oral opinion carefully reviewed the evidence and what he considered to be the applicable law. In responding to the evidence of justifiable or excusable homicide based on appellant’s right to defend his home, the judge said, “. . . [I]t does not appear to the Court that the Defendant acted with caution in exercising that right, nor as Mr. Hockheimer stated, the killing was unavoidable”. The judge then described some of the “options” he felt the appellant should have exercised that would have avoided the homicide. He then stated:

“Accordingly, the Court finds that an unlawful homicide indeed was committed without justification and having reached this conclusion, the law presumes it to be murder in the second degree and also presumes that malice existed.”

As we now know, this is an incorrect statement of the law. It is a good example of the confusion that has grown up in the lawr of homicide in Maryland because of the “treacherous procedural vocabulary [that] has been superimposed upon an equally treacherous definitional vocabulary”. Evans v. State, supra, Part IIC The Common Law’s Tower of Babel.

In presuming second degree murder from the absence of justification, the State was thereby unconstitutionally relieved of the burden of proving beyond a reasonable doubt an essential element of the crimes of both second degree murder and assault with intent to murder, that element being the absence of mitigating circumstances. Not only was the State relieved of that burden, but the burden was placed squarely on the appellant to prove that element, albeit only by a preponderance of the evidence. Immediately after making the above quoted statement in his oral opinion, the trial judge said:

“The burden at this point is then upon the Defendant to show only by a preponderance of the evidence sufficient facts to lower the homicide from murder in the second degree to manslaughter.”

These dual errors (first, relieving the State of the burden of proving non-mitigation beyond a reasonable doubt, and second, imposing upon the appellant the burden of proving his innocence as to that element of the crimes) are clearly of constitutional proportions where the evidence has generated a genuine issue with respect to that element. Mullaney v. Wilbur, supra; Evans v. State, supra; In re Winship, 397 U. S. 358, 364 (1970).

We now turn to the question of whether an issue of mitigation was generated by the evidence. We may assume that when the trial judge found that “an unlawful homicide indeed was committed without justification ...” he did so by applying the proper standard of proof, i.e., beyond a reasonable doubt, and that he was negating by that standard the issue of defense of habitation raised by the evidence. Viewing the evidence in the light most favorable to the appellant, that an issue of defense of habitation was fairly in the case is abundantly clear. We think the evidence, viewed in that light, also fairly generated an issue of mitigation.

At the time of the homicide, appellant and his bride of a few weeks were alone in the bedroom in their darkened house. Two weeks before the homicide their house had been burglarized. They heard noises outside. Appellant got out of bed, nude, and went downstairs to investigate the matter. He continued to hear noises like someone was “trying to get in”. He obtained from the living room his shotgun, purchased for “home protection” after his house had been burglarized two weeks before. He heard a noise on his back porch, “a fiddling around with the door”. There were curtains on the back door and he could see no figures on the darkened back porch. He felt that there were burglars on his porch, and “then I heard the scraping of a window pane.” He next heard a voice say, “Lets go in”. At that time he was in the living room, “standing there with my shotgun shaking ...” because he was scared. In appellant’s words, “at that time the gun went out [sic]”. He said he didn’t know how the gun went off; he could have pulled the trigger intentionally or accidentally; he didn’t know. When the gun went off, it was held about waist high pointed toward the back door. The single shotgun blast went through the door killing police officer Garrison, who at that time was attempting to gain entrance to the house. The blast narrowly missed police officer Adams who was standing beside officer Garrison. The two officers had gone to the house in response to a call from appellant’s next door neighbor who, unknown to appellant or his wife, had earlier called the police to report a suspected burglary attempt at appellant’s house. The State conceded in closing argument that appellant did not knowingly shoot a police officer and that “he probably thought he shot a burglar or whatever that was outside”.

As we said in Shuck v. State, supra, at 40, “Although by far the most common form of mitigation is that of a hotblooded response to legally adequate provocation, this is not the only form of mitigation that will negate malice and will reduce what might otherwise be murder to manslaughter”. In Shuck we quoted from Perkins, Criminal Law (2d Ed., 1969, at pp. 69-70) where the author describes this legal phenomenon of “Mitigation other than Provocation”:

“Since manslaughter is a ‘catch-all’ concept, covering all homicides which are neither murder nor innocent, it logically includes some killings involving other types of mitigation, and such is the rule of the common law. For example, if one man kills another intentionally, under circumstances beyond the scope of innocent homicide, the facts may come so close to justification or excuse that the killing will be classed as voluntary manslaughter rather than murder. ‘It is not always necessary to show that the killing was done in the heat of passion, to reduce the crime to manslaughter; ’ said the Arkansas court, ‘for, where the killing was done because the slayer believes that he is in great danger, but the facts do not warrant such a belief, it may be murder or manslaughter according to the circumstances, even though there be no passion.’ ” (Emphasis Supplied).

In Shuck we also recognized “imperfect” self-defense as a form of mitigation other than hot-blooded response to legally adequate provocation, quoting with approval from Lafave and Scott, Criminal Law (1972, pp. 583-589) where the authors said:

“In order for a killer to have a ‘perfect’ defense or self-defense to homicide, (1) he must be free from fault in bringing on the difficulty with his adversary; and (2) he must reasonably believe (though he need not correctly believe) both (a) that his adversary will, unless forcibly prevented, immediately inflict upon him a fatal or serious bodily injury, and (b) that he must use deadly force upon the adversary to prevent him from inflicting such an injury. If one who is not the aggressor kills his adversary with these two actual and reasonable beliefs in his mind, his homicide is justified, and he is guilty of no crime — not murder, not manslaughter, but no crime.
What if a defendant who did not initiate the difficulty honestly but unreasonably believes either that he is in danger of the injury or that killing is the only way to prevent it; or, even though he reasonably believes these things, he was at fault in bringing about the difficulty? He cannot have the defense of self-defense, for that requires both freedom from fault in the inception of the difficulty and the entertainment of beliefs which are reasonable. But is murder the only alternative? Or should the matter fall into the category of manslaughter, consisting of those homicides which lie in between murder and no crime. Some cases so hold, whether the reason for the ‘imperfection’ of the defense is the defendant’s own fault in bringing on the difficulty or the unreasonableness of the honest but erroneous beliefs which he entertains.”

Since the issue of mitigation was generated by the evidence, the State was required to convince the trier of fact beyond a reasonable doubt of non-mitigation. It is clear to us that the judge, as the trier of fact, did not consider that he need be so convinced, but instead considered that the burden was upon the appellant to convince him by a preponderance of the evidence that there were mitigating circumstances which would “lower the homicide from murder in the second degree to manslaughter”. This error requires a reversal under Mullaney v. Wilbur, supra, as analyzed in Evans v. State, supra.

The trial judge also misplaced the burden of proof with respect to the issues of accidental death and “implied malice”. Immediately following the judge’s statement allocating to the appellant the burden of lowering the homicide from murder to manslaughter, quoted supra, he discussed the “allegation” that appellant’s gun was fired accidentally. It is clear that the judge did find that he could not “accept the Defendant’s allegation the gun went off accidentally”. It appears, however, that he made such a finding, not because he found that the State had proved beyond a reasonable doubt that appellant intentionally fired the gun, but because the appellant failed to prove by a preponderance of the evidence that the killing was unintentional. It is clear also that the trial judge found “at least implied malice” from the act of firing the gun “the natural tendency of which was to cause death or great bodily harm”, even though, as the judge said, there may have been “no actual intent to injure”. Here again, however, it appears that the trial judge found “implied malice”, not because he was convinced of it beyond a reasonable doubt, but because the appellant had failed to convince him by a preponderance of the evidence that it did not exist. Immediately after finding “implied malice”, the judge said:

“Thus, the Court is not persuaded by a preponderance of the evidence that the killing here is manslaughter and accordingly finds the Defendant guilty on Count One of murder in the second degree”.

That the burden is upon the State to prove beyond a reasonable doubt every element of malice necessary to constitute the crime of second degree murder (including, where the issue is fairly generated, an intentional act which produced the homicide — even where the homicidal agency is not an issue) is now firmly established. Evans v. State, supra. See also Wilson v. State, 28 Md. App. 168, in which we held, even before Evans v. State, that the burden was upon the prosecution to overcome, and not upon the defense to prove, an issue of accidental killing fairly generated by the evidence.

Judgments reversed.

Case remanded for new trial.

      . To constitute assault with intent to murder, it must be shown that had the victim of the assault died as a result of the assault, the crime would have been murder. It would not be enough to show that the resulting homicide would have been manslaughter. Shuck v. State, supra.


author: Morton, J.,

text:
    GREGORY FRANKLIN BROWN v. STATE OF MARYLAND
    [No. 224,
    September Term, 1975.]

      Decided December 30, 1975.

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

      James F. Maher, Assigned Public Defender, for appellant.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Gary Neal, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellant was convicted by a jury sitting in the Circuit Court for Prince George’s County (Loveless, J., presiding) of assault with intent to murder, armed robbery, carrying a handgun and use of a handgun in the commission of a crime of violence. He was sentenced to a total of twelve years. In this appeal it is contended, inter alia, that he should not have been convicted of the crimes charged because “the gun used was not loaded.”

The victim, a twenty-three year old school teacher, testified that she and her mother had just driven to the front of their home at about 8 p.m. on October 24, 1974, after an evening of Christmas shopping, when she saw someone, whom she positively identified at the trial below as appellant, riding down the street on a bicycle. After he had passed them, she and her mother began taking packages out of the car. According to the victim, appellant turned around and came back. “My purse was out of my hand. Before I realized it, it was missing. It was up in the air. My mother started screaming. And this person who was still on the bike pointed a gun at my stomach and the gun was clicked several times. Then, the person on the bike started down the street and turned around and again aimed the gun at me; then he clicked his gun several times and then I went in the house.” She elaborated by stating that “after my purse was grabbed out of my hand * * * the gun [was] touching my coat.”

Appellant took the stand and denied he had robbed the victim. He stated that he did not know where he was that evening: “I’m usually at home looking at television.”

It is in this factual posture that appellant contends that his motion for judgment of acquittal of the charge of assault with intent to murder should have been granted on the ground that the necessary element of specific intent to murder is lacking if the gun involved is unloaded. The assertion that the gun involved was unloaded is, of course, simply a bald allegation, for the only evidence in the record before us to support the allegation is the failure of the gun to fire. The appellant denied being at the scene of the crime; the gun was never produced by the State; and the victim heard the gun clicking a number of times. Thus, it may have been loaded and simply misfired, or it may not have been loaded.

Appellant, in this appeal, contends, as he did below, “that the trial court was in error in not instructing the jury that they should first find as a matter of fact whether or not the gun was loaded and if they found that it was not loaded that they could not convict Appellant of the crime of assault with intent to murder because there was no present ability to kill and that, therefore, the essential element of intent was lacking.”

The validity of appellant’s contention must be weighed against the ingredients and contours of the crime charged. Md. Code, Art. 27, § 12 provides: “ * * * every person convicted of the crime of assault with intent to murder shall be guilty of a felony and shall be sentenced * * * for not less than two years nor more than fifteen years * * *.” It has been said:

“To support a charge of assault with intent to murder it is generally recognized that there must be proof of both an assault and an intention to murder. The intent cannot be inferred from the mere fact of the assault, although the character of the assault and the use of a deadly weapon are factors to be considered. Acers v. United States, 164 U. S. 388, 17 S. Ct. 91, 41 L. Ed. 481, and note. Neither can the intent be established as a matter of law from the mere use of a deadly weapon. Lanier v. The State, 106 Ga. 368; Hochheimer, Criminal Law (3rd Ed.) Section 29. Wharton, Criminal Law (12th Ed.) Section 841 says: ‘On an indictment for an assault with intent to murder, the intent is the essence of the offense. Unless the offense would have been murder, either in the first or second degree, had death ensued from the stroke, the defendant must be acquitted of this particular charge. * * * It is not necessary, however, to sustain such an indictment that a specific intent to take life should be shown. If the intent were to commit grievous bodily harm, and death occurred in consequence of the attack, then the case would have been murder in the second degree; and, in case of death not ensuing, then the case would be an assault with intent to commit murder in the second degree. * * In Wharton, Criminal Evidence (11th Ed.) Section 79, it is said: ‘If intent is an element, the State must introduce evidence to show it. However, since intention is a fact which cannot be positively known to other persons, no one can testify directly concerning it and the matter must be an inference which the jury must find from established facts.’ ” Webb v. State, 201 Md. 158, 161-62.

In an A.L.R. annotation entitled “Fact that gun was unloaded as affecting criminal responsibility,” it is asserted: “A number of courts have recognized that in the absence of proof that the gun used, as a firearm solely, in an alleged criminal assault was loaded or where the fact was shown that the gun was unloaded, the assault is not made out.” Annot., 79 A.L.R.2d 1412, 1415 (1961). On the other hand, it is pointed out, a number of courts “have rejected the contention that an ‘assault’ could not be committed with an unloaded gun.” 79 A.L.R.2d at 1417.

In some jurisdictions, statutes “define the offense of assault as involving a present ability to do harm.” 79 A.L.R.2d at 1418. In such jurisdictions “the courts have taken the view that there is no such ‘present ability’ where the gun allegedly used in the commission of an assault was unloaded.” 79 A.L.R.2d at 1418. On the contrary, other jurisdictions have held “that only the ‘apparent ability’ to do harm is necessary for the offense of assault and under this rule it has been recognized that the offense may be committed with an unloaded gun.” 79 A.L.R.2d at 1420. See also Ott v. State, 11 Md. App. 259, 269.

Here, however, we are dealing, not with the offense of assault in its commonly accepted definition, but with a crime where the essential ingredient of the assault is the intention on the part of the assailant to commit murder. On the record before us, it cannot be said, with any degree of certainty, whether the gun was loaded and simply misfired, or was unloaded. The assertion by appellant’s counsel that the gun involved was unloaded is simply a bald allegation without a shred of supportive evidence. The appellant denied being at the scene of the crime; the gun was never produced by the State; no description of the gun is in evidence; and the victim simply heard the gun click a number of times. Speculatively, it could have been a toy gun, a so-called starter’s gun firing only blank cartridges, or it could have been a lethal firearm. The evidence simply does not establish factually anything other than a “gun” was pointed at the victim by the appellant and she heard it click several times on two different occasions. In the absence of some evidence from which the trier of fact, in this instance the jury, could ascertain whether or not the gun was or was not loaded, or was, in fact, an operable firearm, it cannot be said, with any degree of certainty or beyond a reasonable doubt, that the appellant intended the assault upon the victim to end in murder or grievous bodily harm.

Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S. 358, 364. Under the circumstances, we think the failure of the State to establish whether the gun, as used in the assault, was capable of killing the victim or inflicting grievous bodily harm constituted a fatal flaw in the proof. Accordingly, we are compelled to find that the evidence was not legally sufficient to sustain the appellant’s conviction of the crime of assault with intent to murder.

It is next contended that the robbery conviction must fail because the evidence demonstrates that the victim’s purse was taken from her before she saw the gun of the appellant. It is argued that larceny, rather than robbery, was the crime committed.

“Robbery has been defined as larceny from the person, accompanied by violence or putting in fear. Osborne v. State, 4 Md. App. 57, 60; Harrison v. State, 3 Md. App. 148. Otherwise stated, robbery is ‘the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence, or by putting him in fear.’ Clark and Marshall, Crimes, (6th ed.) § 12.09, p. 781; Darby v. State, 3 Md. App. 407, 413. * * * There is some authority for the proposition that one ‘who snatches money or a purse or other property from another’s hand, if no resistance is encountered, is guilty of larceny rather than robbery.’ See Perkins, Criminal Law, p. 236; Clark and Marshall, supra, p. 782.” Williams v. State, 7 Md. App. 683, 685-86.

It is true that the victim said her purse “was out of my hand. Before I realized it it was missing.” But she went on to add: “And this person who was still on the bike pointed a gun at my stomach and the gun was clicked several times.” We think a fair reading of the victim’s testimony leads to the conclusion that the entire transaction was simultaneously executed and that the taking of her purse was accompanied by the use of the gun. In any event, we held in Burko v. State, 19 Md. App. 645, 657-58:

“ * * * when one commits a larceny and then displays a weapon so as to overcome the resistance of the witness, the crime is then elevated to robbery. See Clark and Marshall, A Treatise on the Law of Crimes, § 12.09 (6th ed. Wingersky rev. 1958). See also Perkins, Criminal Law, ch. 4, § 2C (2d ed. 1969) wherein it is stated, at 284:
‘Furthermore, if one snatches property from the hand of another and uses force or intimidation to prevent an immediate retaking by the other, this is all one transaction and constitutes robbery.’ ”

We think the contention that appellant committed larceny rather than armed robbery is without merit.

Appellant finally contends that “there can be no conviction for the crime of use of the handgun in the commission of a felony if the defendant can affirmatively show that the gun was not loaded.” The short answer to this contention is that the evidence failed to show that the gun was unloaded. This, however, is of little moment for we have recently held that the term “handgun” includes “any hand weapon simulating the appearance of a pistol or revolver that is capable of discharging a missile by any method of propulsion.” Todd v. State, 28 Md. App. 127, 135. The contention is without merit.

Judgment affirmed as to count 1 (armed robbery) in criminal trial 15131; judgments affirmed as to count 8 (carrying a handgun) and count 9 (me of a handgun in the commission of a crime of violence) in criminal trial 15073; judgment reversed as to count 6 (assault with intent to murder) in criminal trial 15073.

      . By Ch. 858, Acts 1975, effective July 1, 1975, the maximum penalty was increased to thirty years.


author: Menchine, J.,

text:
    PETER T. STATHES v. STATE OF MARYLAND
    [No. 237,
    September Term, 1975.]

      Decided December 30, 1975.

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

      Joseph B. Simpson, Jr., with whom were Vivian V. Simpson, John Noble, Stephen P. Johnson and Simpson & Simpson on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, Darrel L. Longest, Deputy State’s Attorney for Montgomery County, and Louis S. Lear, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

On July 17, 1974 Peter T. Stathes, a former president of Montgomery Federal Savings and Loan Association, was indicted by the Grand Jury of Montgomery County on two counts of fraudulent misappropriation as a fiduciary in violation of Maryland Code Article 27, § 132. Brought to trial before a jury in the Circuit Court for Montgomery County (Shure, J. presiding) Stathes was found guilty under the first count that reads as follows:

“Fraudulent Misappropriation by Fiduciary

The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations, present that Peter T. Stathes, late of said County, beginning on or about April 6, 1967 until on or about July 20, 1973, at the County aforesaid, did unlawfully, while acting in tile capacity of a trustee and fiduciary, embezzle and fraudulently and wilfully appropriate to a use and purpose not in the due and lawful execution of his trust for and on the behalf of The Montgomery Federal Savings and Loan Association, the sum of Fifty Thousand dollars ($50,000.00), current money, in violation of Article 27, Section 132 of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State.”

The count had been particularized as follows:

“Comes now the State of Maryland and provides the following Bill of Particulars surrounding the allegations of the Indictment filed herein:
“Count I: That beginning on or about April 27, 1967 until on or about July 20, 1973, the defendant, then in a position of trust and acting in a fiduciary relationship to the shareholders in The Montgomery Federal Savings and Loan Association, caused certain monies of said Association to be deposited in the Citizen’s Bank and Trust Company of Maryland, pursuant to an agreement with Joel T. Kline. These monies were to remain in non-interest bearing accounts to act as compensating balances on loans made by the Citizen’s Bank and Trust Company of Maryland to companies in which Joel T. Kline had an interest. The defendant agreed to this arrangement in return for certain favors and benefits rendered or to be rendered to the defendant by Joel T. Kline.”

Stathes was sentenced conditionally to a term of three years imprisonment under the provisions of Code Article 27, § 641 A.

His appeal to this Court thus phrases the questions presented:

“1. Was the Circuit Court without jurisdiction to try appellant, an officer and director of a federally chartered savings and loan association, upon an Indictment charging embezzlement in violation of Article 27, Section 132 of the Code?
2. Did the court below err in its instructions to the jury (a) by failing to instruct on the requisite fraudulent intent needed for conviction of a violation of Article 27, Section 132, and (b) by failing to instruct properly on the necessity for corroboration of the testimony of an accomplice?
3. Did the court below err by unduly restricting the cross-examination of two of the State’s witnesses in violation of the appellant’s constitutional right to confront the witnesses against him?
4. Was there sufficient evidence (a) to corroborate the testimony of an accomplice that appellant opened a checking account as a compensating balance for said accomplice, or (b) to show that appellant had the specific intent necessary to sustain a conviction under the statute?”

1. Jurisdiction

Appellant contends that Montgomery Federal Savings and Loan Association as a federally chartered savings and loan association is an “instrumentality and agency of the United States, not subject to state regulation or control.” From that undisputed premise, he argues that State courts are without jurisdiction to prosecute him, contending that Congress has provided a complete and pervasive scheme to regulate federal savings and loan associations under Title 12 — Banks and Banking, Ch. 12 — Federal Savings and Loan Associations, Section 1461, et seq. and has by 18 U.S.C.A. § 657 imposed criminal penalties upon officers of such associations for embezzlement. Otherwise stated, appellant contends that Congress has placed such criminal conduct within the exclusive jurisdiction of the federal courts.

Appellant’s principal reliance is upon the cases of Easton v. Iowa, 188 U. S. 220, 23 S. Ct. 288, 47 L. Ed. 452 (1903); and two State decisions, namely: Martin v. State, 61 S.W.2d 999 (C.C. App. Tex., 1933); and State v. Thornton, 214 N. W. 279 (Minn., 1927). We find Easton, supra, to be readily distinguishable. In Easton, the Iowa statute consisted of two sections that: (a) prohibited every bank “when insolvent, [to] accept or receive [any] deposit,” and (b) imposed criminal liability upon “any owner, officer, director, cashier, manager, member, or person knowing of such insolvency who shall knowingly receive or accept * * * any such deposits * * *.” In reversing state conviction in Easton, the Supreme Court said at 231-32, [291], [457]:

“But we are unable to perceive that Congress intended to leave the field open for the states to attempt to promote the welfare and stability of national banks by direct legislation. If they had such power it would have to be exercised and limited by their own discretion, and confusion would necessarily result from control possessed and exercised by two independent authorities.
“Nor can we concede that by such legislation of a state as was attempted in this instance, the affairs of a national bank, or the security of its creditors, would be advantageously affected. The provision of the state statute is express that it is the duty of the officers of the bank, when they know it is insolvent, to at once suspend its active operations; for it is obvious that to refuse to accept deposits would be equivalent to a cessation of business. Whether a bank is or is not actually insolvent may be, often, a question hard to answer. There may be good reason to believe that, though temporarily embarrassed, the bank’s affairs may take a fortunate turn. Some of the assets that cannot at once be converted into money may be of a character to justify the expectation that, if actual and open insolvency be avoided, they may be ultimately collectible, and thus the ruin of the bank and its creditors be prevented. McDonald v. Chemical Nat. Bank, 174 U. S. 610, 43 L. Ed. 1106, 19 Sup. Ct. Rep. 787. But, under the state statute, no such conservative action can be followed by the officers of the bank except at the risk of the penalties of fine and imprisonment. In such a case the provisions of the Federal statute would permit the Comptroller to withhold closing the bank, and to give an opportunity to escape final insolvency. It would seem that such an exercise of discretion on the part of the Comptroller would, in many cases, be better for all concerned than the unyielding course of action prescribed by the state law. However, it is not our province to vindicate the policy of the Federal statute, but to declare that it cannot be overridden by the policy of the state.”

In Martin, supra, as in Easton, the statute in question had attempted to extend the effect of a state law set up to control banking institutions so as to have application to national banks. The case therefore factually is parallel to Easton and similarly distinguishable.

In Thornton, supra, the Supreme Court of Minnesota made special note that the State indictment “appears to be drawn with painstaking care to state an offense under section 5209, Rev. St. of the United States” (p. 280). There is nothing in the opinion to indicate that the offense charged was in violation of any Minnesota statute. There is little wonder that, under such circumstances, the Court said (p. 279) “* * * any offense against the [Federal] statute cited is within the exclusive jurisdiction of the federal courts.”

We do not interpret the decision in Ea&ton as pre-empting State prosecution or compelling exclusive Federal jurisdiction in the prosecution of general criminal offenses proscribed by both Federal and State statutes. We do not regard the subject statute as constituting in any sense an attempt by the State to override the policy of a federal statute. On the contrary, we regard this State penal statute, applicable to all persons within its borders, to have no relationship to an attempt to assert control of federally chartered associations. It merely provides for the punishment of an act that is criminal under the laws of both State and Federal Governments. The right of different sovereignties to prosecute in such circumstances is well recognized. Westfall v. U. S., 274 U. S. 256, 47 S. Ct. 629, 71 L. Ed. 1086 (1927); U. S. v. Lanza, 260 U. S. 377, 382, 43 S. Ct. 141, 142, 67 L. Ed. 314, 317 (1922); U. S. v. Jackson, 470 F. 2d 684 (5th Cir., 1972). In U. S. v. Jackson, supra, the Court clearly and succinctly stated the rule we apply to the subject case when it said at 689:

“An act denounced as a crime by both federal and state sovereignties is an offense against the peace and dignity of both, and may be punished by each.”

2. Instructions

(a) Alleged failure to instruct as to fraudulent intent

Appellant contends that it was essential that the jury be sufficiently instructed as to the required specific statutory intent and argues that the charge of the court failed to do so. We do not see it that way.

It is an undisputed fact that the appellant was president of Montgomery Federal Savings and Loan Association. As such lie stood in a fiduciary relationship to the corporation and thus would not be permitted under any circumstances to use the powers entrusted to him to promote his personal interests at the expense of the corporation. Coffman v. Maryland Publishing Co., 167 Md. 275, 289, 173 A. 248, 254 (1934).

The charge of the court must be considered in the light of this circumstance. The charge of the court included, inter alia, the following:

“Now, we are here dealing with criminal breach of fiduciary duty, specific violations of Article 27, Section 132 of the Annotated Code of Maryland. This section deals with crimes and punishments, and I have had a photocopy made of this section which the foreman can take into the jury room with you for your deliberation.* * * He is charged with a violation of this fiduciary duty, and it is, therefore, for you to determine whether he is or is not guilty, guilty being necessary beyond any reasonable doubt, as I have previously indicated.
“The Defendant contends that he did not embezzle or in any way misuse the funds of the shareholders and that the deposits made in the banks in question were approved by the Board of Directors and were for legitimate business purposes only; such as, creating goodwill, solicitation of new accounts and ordinary business operations wherein checking accounts were necessary. The Defendant was acting in a fiduciary capacity as President and Director, and it is for you to determine whether or not he had, first, the ability to control; and secondly, did so control and arrange for the use of funds or compensating balances or otherwise as favors in exchange for favors from Mr. Kline and his associates. If he did use the savings and loan association funds in this manner this constitutes criminal intent and your verdict must be guilty. If you do not so find, your verdict must be not guilty.”

We note that the full text of the criminal statute had been given to the jury by the trial judge. This action caused its language to be incorporated in the charge by reference. This tended to insure that the jury was fully advised that proof of a specific fraudulent intent was an element of the State’s burden. In Andresen v. State, 24 Md. App. 128, 331 A. 2d 78 (1975), we said at 191-92 [116]:

“Elements of Fraudulent Misappropriation by a Fiduciary
The appellant now claims that he objected to the failure of the trial court to define the elements of the crime of fraudulent misappropriation by a fiduciary, although he admits that his objection was ‘inartfully worded.’ That is the most artful of understatements, since the confrontation consisted only of the following:
‘THE COURT: ... As far as the other objections are concerned, there are certain instructions that I gave the jury that have not come from case law, necessarily, Maryland case law, but in order to apprise the jury of the requirements under the various counts, I think it is necessary to explain to them the elements of the crime that needed to be proven, and sometimes you can’t find that particular element defined; therefore you’ve got to go elsewhere.
‘MR. LAMB: I would submit that that would be where the judge is the determiner of the law, but in Maryland the jury is the finder of facts.’
We cannot glean the remotest ‘inartful’ suggestion of the objection now being pressed. The judge had, moreover, read to the jury the full text of Article 27, § 132.”

We believe that the overall charge of the trial court fairly and adequately instructed the jury that the State was required to show a specific intent or special mens rea of fraud and wilfulness. This is all that was required. Gordon v. State, 14 Md. App. 245, 258-59, 286 A. 2d 833, 842 (1972).

(b) Failing to instruct properly on the necessity for corroboration of an accomplice

The record shows that the appellant did not seek an instruction on the necessity for corroboration of the testimony of an accomplice. The issue is not before us. Rule 756 g.

In Brown, v. State, 14 Md. App. 415, 422, 287 A. 2d 62, 65 (1972) we said:

“* * * we think that as a general guide, we may say that under Rule 756 g we will take cognizance of and correct an irremediable error of commission, but not an error of omission. Of course, the error must be plain, and material to the rights of the accused, and, even then, the exercise of our discretion to correct it should be limited to those cases in which correction is necessary to serve the ends of fundamental fairness and substantial justice.
“The omission here was one which the trial court could have, and undoubtedly would have, supplied by a supplementary instruction if appellant had requested it before the jury retired to consider its verdict.”

That rule is particularly apposite in the subject case. The sole objection to the trial court’s charge relating to the testimony of an accomplice had been as follows:

“We object on the grounds of omission from the charge to the Court omitting to give the jury our instruction or charge relating to the great care with which the jury must view the testimony of accomplices.”

The trial court had included in its charge the following:

“As you will recall, the State has presented certain alleged accomplices in connection with the use of funds claimed to be for compensating balances. One of the witnesses, Mr. Kline, has been granted immunity from prosecution in exchange for his testimony in this case. This is proper for the prosecution to do, and this is a recognized use in the means of law enforcement. This testimony, however, must be weighed carefully, along with all of the other testimony, and you give it such weight as in your judgment it is fairly entitled to receive.”

The record fails to include the instruction that had been sought by the appellant. In its absence, the exception indicates merely that the appellant requested that the jury be alerted to the need for careful examination of the testimony of an accomplice. The charge as given adequately did so. We do not intimate, of course, that the uncorroborated testimony of an accomplice would serve as legally sufficient evidence to convict.

3. Restrictions on Cross-Examination

Appellant contends that cross-examination was wrongfully curtailed to the point where appellant’s constitutional right to confrontation was denied.

(a) The witness Kline

Extensive cross-examination was permitted with respect to Kline’s character as the following excerpts from the record will demonstrate:

“Q And did you from time to time offer money or things of value in connection with appointments to federal office?
A Yes, sir.
Q And did you from time to time offer money and things of value in connection with an appointment to State office?
A Yes, sir.
Q And did you from time to time in connection with appointments to State, Federal or County offices offer substantial sums of money?
A Yes, sir.
Q And did this conduct extend over a period of time?
A Yes, sir.
Q And did this extend to the law enforcement officials?
A Yes, sir.
Q And did this extend to the offices of the Executive Department of the Federal Government?
A Yes, sir.
Q And did this extend to the Banking and Insurance Department within the State of Maryland?
A Yes, sir.
Q And did you at one time discuss with persons, with people the offering of money or things of value so that you, yourself, might hold the office of Banking Commissioner of the State of Maryland?
A Yes, sir.
Q And did you have similar discussions with other persons in the State of Maryland regarding the offering of money or things of value so that other people might get other appointments?
A Yes, sir.
Q And did this cover Executive offices, that is, offices of the Executive Branch of the Government of the State of Maryland?
A Yes, sir.
Q And that is other than the Banking Commissioner?
A Yes, sir.”

It had been elicited from Kline in his direct examination that he had pleaded guilty to conspiracy to obstruct justice in that in 1972 “[he] and others were telling the witnesses how to testify and were obstructing justice * * *.” The record also showed the following:

“THE WITNESS: There is an agreement that was entered into between myself and the State of Maryland with a promise not to prosecute me for any criminal activity in return for my cooperation in future criminal prosecution, with the understanding that if I should perjure myself or not be candid this agreement, I believe, will become null and void and I could be prosecuted, and anything I said could be used against me.”

Such was the setting when a sustained objection by the State prevented counsel for appellant from showing the specifics of Kline’s conduct and from obtaining the names of the other persons allegedly involved. The State’s Attorney had objected to such an inquiry because the proposed evidence was not relevant to the trial of the case; was not proper impeachment; and might have a substantial deterrent effect upon pending federal investigations.

In the course of the discussion upon impeachment of a witness by cross-examination to show bad character as evidenced by conduct, it is said in 3A Wigmore, Evidence, § 983 (Chadbourn rev. 1970) at 847:

“(2) By the rule obtaining in most jurisdictions of the United States, the repression of possible abuses is left in the discretion of the trial judge; questions upon facts relevant to character may still be forbidden by him where he believes that under the circumstances it is unnecessary and undesirable.”

The following quotation from Kruszewski v. Holz, 265 Md. 434, 440, 290 A. 2d 534, 538 (1972), not only demonstrates that Maryland adheres to that general rule, but the language of the Court tends as well to demonstrate that the sustaining of the objection in the subject case did not constitute an abuse of discretion:

“It is well settled law in this State that exploratory questions on cross-examination are proper when they are designed to affect a witness’ credibility, test his memory or exhibit bias. Shupe v. State, 238 Md. 307, 311, 208 A. 2d 590 (1965); Kantor v. Ash, 215 Md. 285, 290, 137 A. 2d 661 (1958); Ager v. Baltimore Transit Co., 213 Md. 414, 427-28, 132 A. 2d 469 (1957). But it is recognized that the scope, range and extent of such interrogation rests in the sound discretion of the trial court. Shields v. State, 257 Md. 384, 392, 263 A. 2d 565 (1970); Ridgeway, Inc. v. Seidman, 243 Md. 358, 364, 221 A. 2d 393 (1966); Mezzanotte Const. Co. v. Gibons, 219 Md. 178, 181, 148 A. 2d 399 (1959). Here, it was unnecessary for Dr. Thomas to be further questioned in order to demonstrate his prejudice in favor of appellee. The jury was already cognizant of a possible bias since it had been shown that the two physicians were colleagues who had collaborated in the treatment of Mrs. Kruszewski.”

Similarly, in the subject case, the witness had acknowledged participation in bribery attempts against public officials and had admitted attempts to thwart justice by bearing false witness. Specifics of the offenses would neither have further blemished his escutcheon a whit, nor would the disclosure of the names of his associates have shown that he was either a lesser or a greater scoundrel. A contrary ruling, on the other hand, would have served to permit the witness stand to become the “slaughter house of reputations” of others. See: Wigmore, supra, p. 841.

We find neither abuse of discretion nor constitutional denial of confrontation in the ruling of the court.

(b) The Witness Amick

in the course of the direct examination of the witness John R. Amick, an Assistant Chief Examiner of the Federal Home Loan Bank Board, the State attempted to have the Bank Board’s examination records of Montgomery produced for introduction into evidence. The witness explained that he was forbidden to disclose examination reports in the absence of authority to do so. The State thereupon desisted from its effort to obtain the documents and limited its subsequent examination to an inquiry — without objection — to strictly hypothetical situations. This inquiry sought to determine what the witness as an examiner would do if he discovered that association funds had been placed in inactive, non-interest bearing checking accounts. The witness responded that: “We would confer with management and ask him why those accounts were not in something other than a non-interest bearing checking account, or at least bring his attention to it.”

Defense counsel on cross-examination also sought unsuccessfully to obtain the examination reports and to elicit from the witness testimony as to their contents. Defense counsel requested the court to order the witness to produce the documents. The trial judge refused, saying:

“Now let me remind counsel that this case has been set for sometime, and Mr. Burgess and Mr. Mann have been attorneys for this defendant for many months, and they have the same right of subpoena, and interrogation, deposition, interrogatories. As a matter of fact more rights than the State has.”

The trial judge also said:

“And this member of the court has not, I am not familiar with any other member of the court that has been even asked to consider this question before this morning.”

After further colloquy between court and counsel, the following inquiry was directed to the witness:

“THE COURT: Mr. Amick, in this briefcase that is on the front table with a lock as I notice it, what is in that briefcase that is not available to the defense?
THE WITNESS: All of the records wouldn’t be available to the defense.
THE COURT: All of them would be available?
THE WITNESS: All wouldn’t be.
THE COURT: All would not be?
THE WITNESS: That’s right.
THE COURT: Nothing in that suitcase would be available to them?
THE WITNESS: That’s right.
THE COURT: Has this information been available to the State that is in that suitcase?
THE WITNESS: No. All that information wasn’t made available to the State.
THE COURT: Well, are there some things in there that were made available to the State that you say are not available to the defense?
THE WITNESS: The monthly reports were made available to the State, and the — the State looked at the Management Questionnaires.
THE COURT: The Management Questionnaires are in evidence. So there is no problem with those.
MR. BURGESS: Just two of them are.
MR. LONGEST: Let me make the record clear. Those are the only two that have been made available to the State. So let’s don’t leave the inference that we have something that we are hiding.”

In sum, the examination reports had been barred to both State and defense.

12 C.F.R. § 505.6 in pertinent part reads as follows:

“(a) General rule. Except as otherwise provided in this part or as may be specifically authorized by the Board, information of the Board that has not been published in accordance with § 505.3 and is not available to the public through other sources will not be made available to the public or otherwise disclosed if such information:
(2) Is contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of, the Board or a Federal
Home Loan Bank, relating to the affairs of any member institution or affiliate thereof, or any other person engaged, or proposing to engage, in the savings and loan business; * * *”

Section 505.4 in pertinent part provides that:

“It is the policy of the Board to disclose its records to the public, even though such records may, in the Board’s discretion, be exempted from disclosure by Section 552 of Title 5 of the United States Code or by § 505.6, wherever such disclosure can be made without resulting injury to a public or private interest intended to be protected by the foregoing statute * * * ”

Section 505.7 may be summarized as authorizing issuance of subpoenas for the production of classified documents or information and for notification to the attorney for the party at whose instance the subpoena has been issued of the substance of the disclosure rules. Section 505.8 provides in substance that one aggrieved by denial of information or records may make written application to the general counsel of the Federal Home Loan Bank Board for their release. If refusal results from that application, a further appeal to the Board is provided by the section.

No effort had been made by appellant to utilize the provisions of law by which court use of confidential documents may be achieved. In the absence of proof of reasonable efforts to obtain the questioned documents for use as evidence, we will not assume that they would have been withheld upon application. We perceive no error in the rejection of appellant’s belated effort to obtain them.

4- Sufficiency of the Evidence

The witness Kline thus described his use of non-interest bearing checking accounts of others as compensating balances for bank loans to himself or his corporations:

“Q What is meant to you by compensating balances?
A This is the balance that the banks require you to leave on deposit out of the proceeds of a loan. Usually it is the proceeds of a loan, so that they make a higher yield and it also helps in the growth of the bank because it increases deposits.
Q Mr. Kline, let me give you the example of a loan of $100,000.00. Would you please apply the theory of compensating a twenty percent compensating balance to that figure?
A Yes. I would borrow a hundred thousand dollars. I would pay interest on a hundred thousand dollars. The bank wanted me to have the use of $80,000.00 and keep $20,000.00 on deposit, interest free, in a checkbook account. This money couldn’t be used. It gave the bank a higher yield, and by making a hundred thousand dollar loan it also gave them an additional deposit of $20,000.00.
It was also a good practice for the bank to have this compensating balance because they have a right of offset if the loan was to the same entity that had the compensating balance and there was a default in the loan they could attach the money that was in the account.
Q What, if anything, did you do about that practice of requiring the borrower to leave his own money in the checking account?
A Well, some time in the middle sixties I came up with a method to lower my cost of borrowing and to give me the use of one hundred percent of the money borrowed.
Q What was the method that you came up with?
A The method of this was to have other entities or savings and loan associations supply compensating balances for my use.
Q Now, how did you accomplish that, Mr. Kline?
A Well, there were several ways.
One way took no money at all, and that was the easiest way, it was done with a savings and loan by me opening up a savings account at a savings and loan, getting interest on the savings account, taking the passbook or the savings certificate from the savings and loan to another institution to get my money back, and the interest I was receiving from the savings and loan would offset my interest borrowing costs at a bank, and in turn I would get the savings and loan association where I deposited said amount of money to put it in an account I directed in a demand checking account, and I would have the bank know that I brought the account in so that I would get credit for it.
So, in effect, I had use of one hundred percent of the money I borrowed, and I lowered my interest borrowing cost by twenty percent, actually twenty-five percent because if you only get the use of eighty percent of the money it is costing you an additional twenty-five percent because twenty percent is twenty-five percent of eighty.
Q One-quarter?
A Yes.
I cut my borrowing costs by twenty-five percent, and we were borrowing many millions of dollars, so it was a substantial savings.”

Kline explained the role of appellant in the establishment of a compensating balance for his benefit by the deposit of funds of Montgomery Federal Savings and Loan Association in a non-interest bearing account in the Citizens Bank and Trust Company of Maryland:

“Q Had you ever talked with Mr. Stathes about that amount of money?
A Yes, sir.
Q And an account at Citizens Bank and Trust
The amount that I had talked to Mr. Stathes about was $50,000.00.
Q What, if anything, did you say to Mr. Stathes concerning the $50,000.00 account at Citizens Bank and Trust Company?
A This was in conjunction with me opening an account at Montgomery Federal for the same amount and having Montgomery Federal open an account at Citizens Bank and Trust Company, and that the Association should not borrow any money from Citizens Bank and Trust because we both couldn’t get credit for the same amount and if Montgomery Federal moved from the bank then Joel Kline couldn’t get credit for it. That was the reason.
I was told by Mr. Stathes that they did their primary banking at Suburban Trust Company and that that was where they would borrow money if they needed it, the Association, so there would be no problem in them putting $50,000.00 at Citizens Bank and Trust at Riverdale, and they would not have to borrow any money.
Q What purpose did you give Mr. Stathes for him placing money at the Citizens Bank and Trust Company?
A So I would get credit for the money so I could use it as compensating balances.
Q Did you use the phrase, ‘compensating balances’ with him?
A I am not sure if I used that phrase. I would get credit for the money, so I would be borrowing against the moneys and not you. I may not have used the phrase ‘compensating balances.’
Q Mr. Kline, explain to the ladies and gentlemen of the jury, here, if you would, please, the connection between deposits and compensating balances insofar as Montgomery Federal was concerned.
A These would be accounts that I would arrange to have put into Montgomery Federal for which I would be paid interest. In return Montgomery Federal would open a checking account at a bank which I directed the account be in, and the money would stay practically dormant at an agreed upon figure, which would be the same amount I kept on deposit at Montgomery Federal Savings and Loan.”

Kline also testified that in return for the creation of compensating balance' non-interest bearing accounts by Montgomery Federal Savings and Loan Association, he provided or arranged for multiple favors for appellant including the following:

1. free trips to Florida, Bimini and Las Vegas;
2. a “finder’s fee” of $7500 for a loan to M & K Investments;
3. the purchase by Kline from Stathes of 5000 shares of stock in the Old Line National Bank at a price substantially higher than the price then quoted for the stock.

There was substantial corroboration that appellant participated in the creation of compensating balances for the use and benefit of Kline to the financial detriment of Montgomery. There also was substantial corroboration that he received favors in the form of cash and other valuable considerations. The trier of fact would be permitted to draw the reasonable inference that the two were interrelated. The appellant himself acknowledged that a non-interest bearing checking account was opened at Citizens Bank and Trust Company of Maryland because Joel Kline asked him to put it there. He acknowledged also that he had been provided free trips to Florida, Bimini and Las Vegas; that he had received the “finder’s fee” to which Kline had referred; and that 5000 shares of his stock in Old Line National Bank had been sold to Kline at $15 per share. It is true, of course, that appellant vigorously maintained that the non-interest bearing checking account of Montgomery’s funds in the Citizens Bank was opened to advance his corporation’s interests and was related in no way to the receipt by him of favors. The jury was not obliged to accept that explanation. Bromwell v. State, 8 Md. App. 382, 387, 259 A. 2d 577, 579-80 (1969).

Kline had testified that he or his secretary would be called from time to time by Citizens Bank officials advising that the association checking account had fallen below the required $50,000 balance. He added that he or she then would so inform an officer of Montgomery. The witness Soyers, Comptroller and Assistant Secretary of Montgomery, confirmed receipt of such calls from Kline or Kline’s secretary. Soyers testified that he then would advise appellant of the calls and would be told “to bring the account balance up at my convenience.” Soyers added that on one or two occasions appellant later returned “to remind me to bring them [bank balances] up to $50,000.” Appellant’s denial of that testimony by both Kline and Soyers did no more than present a question of credibility properly to be resolved by the jury.

The record shows by a rational permissible inference that the deposit of Montgomery funds in a non-interest bearing checking account at Citizens Bank was initiated by the appellant in violation of his fiduciary duty to Montgomery and against its interest in order to achieve a personal gain detrimental to it.

The evidence was legally sufficient to convict. Carter v. State, 15 Md. App. 242, 247, 289 A. 2d 837, 840 (1972).

Judgment affirmed.

Appellant to pay the costs.

      . We note that the provisions of Title 18 U.S.C.A. § 3231 provide:
      “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.
      “Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.”

      .] Article 27, § 132 reads as follows:
      “§ 132. Fraudulent misappropriation by fiduciaries.

      If any executor, administrator, guardian, committee, trustee, receiver or any other fiduciary shall fraudulently and wilfully appropriate to any use and purpose not in the due and lawful execution of his trust, any money or any other thing of value which may come into his hands as such executor, administrator, guardian, committee, trustee, receiver, or in any other fiduciary capacity, or secrete it with a fraudulent intent to appropriate it to such use or purpose, he shall be deemed guilty of embezzlement, and shall be punished upon conviction by imprisonment in the penitentiary for not less than one year nor more than five years.”

      .] Federal Home Loan Bank Board.