author: Menchine, J.,

text:
    ARTHUR HUTCHINSON, JR. v. STATE OF MARYLAND
    [No. 76,
    September Term, 1977.]

      Decided December 7, 1977.

      The cause was argued before Menchine, Mason and Liss, JJ.

      Reginald W. Bours, III, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Somier, State’s Attorney for Montgomery County, and Steven A. Shaw, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

At about 7:30 p.m. on March 3,1976, Jerome Roy Spencer was shot to death in the hallway of a Silver Spring, Maryland motel in which he had been a guest.

At about 8:0b P-m- on the same date Officer Malinowski, a member of the Tactical Squad of the Montgomery County Police Department, arrested Arthur Hutchinson at 3rd and D Streets, N. E. in Washington, District of Columbia, for the homicide.

Hutchinson was convicted and sentenced for felony murder and use of a handgun in the commission of a felony after a bench trial in the Circuit Court for Montgomery County. In the same trial he was acquitted for attempted robbery.

In this appeal he contends, inter alia, that his confession was improperly admitted in evidence.

Hutchinson testified that, while alone with a District of Columbia police officer immediately prior to the interrogation by Montgomery County police that led to the confession, the following colloquy occurred:

“Q I think you were talking about this D. C. detective. What else happened, if anything?

A He got to asking me questions. I told him that I didn’t want to talk, you know. And he took, he pulled the gun down from his holster, the holster comes down, and he sat it over on the table, first. It was — there was already a gun on another table. So he says something real smart to me.

Q Can you tell the Court what you mean by that? What did he say?

A I cannot actually recall what he said, but I sort of responded, because I was upset. And he told me, don’t I know he can blow my F’ing head off and say I tried to grab his gun? And he picked the gun up and put it towards my face for a minute. And it upset me very much. So I just started to talk to him, you know. And he told me that he could help me with the Maryland police officer.”

There was no evidence offered by the State specifically to rebut the above allegations.

In such circumstances the issue is controlled by Gill v. State, 265 Md. 350, 289 A. 2d 575 (1972) and by Streams v. State, 238 Md. 278, 208 A. 2d 614 (1965).

In Gill, supra, it was said at 353-54 [577]:

“... But when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted. Here it is claimed the inducement occurred while Gill was alone with Hyson. Since it is uncontradicted that the suspect was in fact in the sole presence of this police interrogator, that specific person must rebut the allegations of coercion as no one else is qualified to do so.”

In Streams, supra, it was said at 283 [616]:

“We think the State’s failure, after Streams left the stand, to go forward with testimony which would refute his claim of promises and threats and to show the conduct of the police during the period he was in custody of the arresting officers was enough under the circumstances of this case to require a holding that the judgments appealed from must be reversed because the State did not meet its burden of establishing the voluntariness of the confessions as a prerequisite to their admission in evidence.”

The proximity in time of the alleged threat and inducement to the interrogation that produced the confession was such as forbids a conclusion that their taint may have been neutralized by a repetition of Miranda warnings; by the passage of time; or by other circumstances tending to attenuate them. Compare Jenkins v. State, 25 Md. App. 551, 555, 334 A. 2d 549, 552 (1975).

In these circumstances we must reverse and remand for a new trial.

Additionally, the appellant has raised the following questions:

1. Was there probable cause for the arrest of the appellant?
2. Was the arrest of the appellant in the District of Columbia by a Montgomery County Police Officer lawful?
3. Was the search of the motor vehicle in which appellant was a passenger constitutionally infirm?
4. Was the evidence legally sufficient to convict for felony murder?

Because it is reasonable to believe that these other contentions will be raised at retrial, we shall answer them in this appeal.

Probable Cause

In Collins v. State, 17 Md. App. 376, 383, 302 A. 2d 693, 697 (1973), we said:

“It is the existence of probable cause at the time of the arrest which is the measure of the legality of the arrest.”

We added at 384 [697-98]:

“The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse mere suspicion. Cuffia v. State, 14 Md. App. 521. Probable cause exists when the facts and circumstances within the knowledge of the arresting officer or the police team, or of which they had reasonably trustworthy information, are sufficient to warrant a reasonably cautious man in believing that a crime had been committed by the person arrested. Only the probability, and not a prima facie showing of criminal activity, is the standard for probable cause.”

Officer Malinowski, assigned to plainclothes duty, was using a nondescript, unmarked vehicle equipped with two separate radio transmitters-receivers by which he could communicate: (a) with other members of the Tactical Squad; and (b) with the Emergency Operations Center of the Montgomery County Police (EOC). His assignment required him to maintain a general surveillance of the business section of Silver Spring, Maryland, near the District of Columbia line, a “high crime area.”

At about 7:35 p.m. on March 3, 1976, Malinowski parked his vehicle in an alley near the Quality Inn and turned off his lights. About one minute later he observed two men running from the motel at a fast rate of speed. Both turned to look behind them three or four times as they ran to a parked automobile that was attended by a third man. One entered the rear seat; the other the front of the parked vehicle. The vehicle pulled away at once — before the passenger door was closed.

Suspicion aroused, Malinowski followed the vehicle in Maryland for three-tenths of a mile to the District of Columbia line and continued to follow it into the District. At the outset Malinowski had requested Corporal Isaacs of the Tactical Squad to check the motel area. Isaacs did so.

At or about the same time, an employee of the motel by telephone advised EOC that an unconscious man was lying in the hallway of the motel with “blood all over.” EOC broadcast a general alert. Car 305, operated by a supervisor of Malinowski, proceeded to the motel in response to that alert.

Corporal Isaacs, having observed that a motel guest had been shot and killed, broadcast the message, “It looks like its a 0100 series.” He directed Malinowski to “stay with the vehicle.”

The supervisor in Car 305, separately having confirmed the shooting death at the motel, broadcast the message, “Its a 0100 series and tell him go stop that car in the District.” This message was transmitted at 7:44 p.m.

Malinowski testified that he heard both messages prior to the arrest. He explained that, “I knew there was a murder there.... [When] somebody says 0100 on the air, that means it is a murder.”

There were, of course, many other radio communications relating to the homicide, in the interval between Malinowski’s first observations at about 7:35 p.m. and the arrest at 8:03 p.m. We are persuaded, however, that further embellishment would serve merely “to gild refined gold, to paint the lily, to throw perfume on the violet, to smooth the ice, or add another hue unto the rainbow.” Officer Malinowski had probable cause to believe, at the time of the arrest, that Hutchinson had committed a felony in Montgomery County, Maryland.

Legality of Arrest

In Berigan v. State, 2 Md. App. 666, 236 A. 2d 743 (1967), then Chief Judge Murphy of this Court (now Chief Judge of the Court of Appeals) said at 668 [744]: “It is, of course, clear that the legality of appellant’s arrest must be determined by applying the law of the District of Columbia, the jurisdiction in which it was made.” We shall determine the validity of the subject arrest in accordance with that command.

The Facts

At the time of entry into the District of Columbia, Malinowski had no intention to arrest Hutchinson or to stop the vehicle in which the latter was a passenger. He gave this explanation for his decision to arrest, “we can exclude any radio communications received by [me] in Maryland as a factor [in the arrest].... at the time [I] made the arrest [it may be] safely assume[d] that the probable cause in [my] mind was a combination of what [I] had seen in Maryland, and what [I] had heard on [my] radio within the District of Columbia.”

We have previously shown that Officer Malinowski had probable cause to believe, at the time of Hutchinson’s arrest, that the latter had committed a felony in Montgomery County, Maryland. It is clear, however, that Malinowski did not have such probable cause at the time he entered the District of Columbia.

The Law

Appellant contends that because Malinowski did not have probable cause to arrest Hutchinson at the time of entry into the District of Columbia, the information thereafter acquired within the District of Columbia cannot be considered in determining whether probable cause for the arrest existed. We reject the contention.

Both the District of Columbia and the State of Maryland have adopted the Uniform Act on Fresh Pursuit. The District Act, as codified in the District of Columbia Code (1973) reads in pertinent part as follows:

“§ 23-901. Arrests in the District of Columbia by officers of other States
Any member of a duly organized peace unit of any State (or county or municipality thereof) of the United States who enters the District of Columbia in fresh pursuit and continues within the District of Columbia in fresh pursuit of a person in order to arrest him on the ground that he is believed to have committed a felony in such State shall have the same authority to arrest and hold that person in custody as has any member of any duly organized peace unit of the District of Columbia to arrest and hold in custody a person on the ground that he is believed to have committed a felony in the District of Columbia. This section shall not be construed so as to make unlawful any arrest in the District of Columbia which would otherwise be lawful.”

No doubt surrounds the intended legislative purpose. In The Council of State Governments, The Handbook on Interstate Crime Control (Rev. ed. 1966) at 119, it is said:

“The purpose of the Uniform Act on Interstate Fresh Pursuit is to prevent criminals from utilizing state lines to handicap our police in their apprehension. At the present time our most desperate criminals head straight across state lines after the commission of a crime, knowing that there is comparative safety beyond the border. For in the foreign state the pursuing officer from the state wherein the crime was committed is, in general, no longer an officer. This abnormality, so contrary to all justice and reason, is remedied in a simple manner by the Fresh Pursuit Act. Thereunder, the moment an officer in fresh pursuit of a criminal crosses a state line, the state he enters will authorize him to catch and arrest such criminal within its bounds. The statute grants this right only when the officer is in fresh pursuit of a criminal, that is, pursuit without unreasonable delay, by a member of a duly organized peace unit, and only in cases of felonies or supposed felonies occurring outside the boundaries of the state adopting the act. It is thus based upon the little-known common-law doctrine of fresh pursuit, from which the statute has derived its name.”

Was this statute intended to make the knowledge possessed by the officer upon entry into the District a touchstone solely determinative of the validity of an arrest made under it? We think not.

Was the statute intended to blind the eye and stop the ear of an officer who entered the District under its authority? We think not.

The circumstances in State v. Tillman, 208 Kan. 954, 494 P. 2d 1178 (1972), closely parallel the subject case. Both Kansas and Missouri had enacted the Uniform Law on Fresh Pursuit. In Tillman, as here, the arresting officers entered the foreign State without probable cause to arrest. In Tillman, as here, a missing factor essential to probable cause was supplied by knowledge gained in the foreign State. The Supreme Court of Kansas, sustaining the validity of the arrest, said at 1182:

“In the case at bar the robbers fled from the scene of the robbery in Kansas City, Kansas, to Kansas City, Missouri, where they were apprehended 90 minutes later. The pursuit was continuous, uninterrupted and without unreasonable delay. It was a ‘fresh pursuit’; hence the arrest of the appellants by the Kansas police officers in Missouri was a valid arrest since the police had actual knowledge that the robbery had been committed and since the appellants were identified [in Missouri] as the robbers by Craig (Moon) Davis prior to their arrest at Southtown Motors.”

Commonwealth v. Robb, 238 Pa. Super, 62, 352 A. 2d 515 (1975) involved the interpretation of an Intrastate fresh pursuit statute. The statute, differing but slightly from the interstate model act, reads as follows:

“ ‘Any police officer in the employ of a county, city, borough, town or township may arrest, with or without a warrant, any felon or person who has committed a misdemeanor or summary offense beyond the territorial limits of the political subdivision employing such officer for such offense committed by the offender within the political subdivision employing the police officer if such officer continues in pursuit of the offender after commission of the offense: Provided, however, that a police officer shall exercise only the power of arrest that he would have if he were acting within the territorial limits of the political subdivision employing him.’ ” 352 A. 2d at 516.

In Robb the appellant made, inter alia, the following contention:

“Because the probable cause to arrest appellee did not become apparent to Officer Simes until they had left Montgomery County, and the proviso to 19 P.S. § 11, supra, permitted Officer Simes to exercise only the power of arrest that he had in Montgomery County, the officer did not have authority to make the arrest in Bucks County.” 352 A. 2d at 517.

The Court, rejecting the contention, said:

“Our disagreement with appellee arises primarily from his interpretation of 19 P.S. § 11, in prong (3). Under the statute, without considering the proviso, there can be no doubt that Officer Simes was authorized to arrest appellee. The statute authorizes police officers to pursue summary offenders, misdemeanants, and felons across township lines and to arrest them. The question then becomes whether the language of the proviso means that, because the probable cause to arrest appellee did not become apparent until after the officer and appellee had crossed the border, the officer had no authority to arrest appellee.
“One final observation is pertinent: if appellee’s interpretation of the statute were to be accepted, then the amendments to the statute must necessarily fail of their essential purpose. The purpose of the amendments was to authorize township police officers to pursue intoxicated automobile operators across township lines, and to arrest them. Appellee contends that the statute does not authorize such an arrest unless probable cause becomes apparent before the officer crosses the township line. Such an interpretation would give the statute a very narrow scope of operation when applied to driving-while-intoxicated cases, contrary to the legislative purpose.” (Footnote omitted.) 352 A. 2d at 517-18.

In yet another opinion dealing with the Pennsylvania intrastate fresh pursuit act, the Court in United States v. Getz, 381 F. Supp. 43 (E.D. Pa. 1974), aff'd without opinion 510 F. 2d 971 (3rd Cir.), cert. denied, 421 U. S. 950 (1975), gave recognition, on the probable cause issue, to knowledge gained by pursuing officers after entry into the foreign political subdivision.

In Boddie and Brooks v. State, 6 Md. App. 523, 531, 252 A. 2d 290, 294 (1969), Chief Judge Murphy of this Court (now Chief Judge of the Court of Appeals) said:

“Under the Uniform Act on Fresh Pursuit of the District of Columbia, a Maryland peace officer is authorized to enter the District while in fresh pursuit to effect an arrest where there is reasonable grounds to believe that the person to be arrested has committed a felony in Maryland. In so acting, the Maryland police officer is vested by Section [901] with the same authority to arrest and hold such person in custody as a police officer of the District of Columbia would have to make an arrest of a person believed to have committed a felony in the District. In this connection, we note that the law of Maryland and that of the District are virtually identical with respect to the authority of a peace officer to make a warrantless arrest for a felony. Compare Davis v. United States, 230 A. 2d 485, Curtis v. United States, 222 A. 2d 840, and Townsley v. United States, 215 A. 2d 482 (District of Columbia Court of Appeals) with Robinson v. State, 4 Md. App. 515.”

Chief Judge Murphy added at 532 [295]: “And it is settled that the legality of an arrest is measured by the existence of probable cause at the time of the arrest.” (Emphasis in original.) While Boddie and Brooks did not involve the precise question now directly before us, the cited language indicates quite strongly that the Uniform Act on Fresh Pursuit should not be so narrowly construed as to alter the firmly fixed rule of law that the existence of probable cause at the time of an arrest should be the measure of its validity. We think that the statute intended no such alteration.

Accordingly, we hold that the statute was intended to permit any member of an organized peace unit of any State to enter in fresh pursuit; to continue in fresh pursuit within the District; and to arrest the person pursued, whom he has probable cause to believe, at the time of arrest, committed a felony in the place of the officer’s jurisdiction.

Legality of the Search

Immediately following the arrest, Officer Malinowski had observed a handgun and bullets in the back seat of the vehicle in which Hutchinson had been seated. He did not, however, seize them at that time. Instead, the vehicle was towed to the Montgomery County impoundment lot. At the later point the gun and bullets were seized. The items were ultimately placed in evidence at the trial.

Appellant contends that the warrantless subsequent search of the car at the Montgomery County impoundment lot and the seizure at that time of the gun and bullets was constitutionally infirm. He argues that the items should have been suppressed as evidence. We find the appellant’s contention without merit on two separate grounds.

First, a search of the car was justified in that under the exigent circumstances at the time of the arrest, Officer Malinowski had probable cause to believe the car contained an instrumentality of the crime. Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L.Ed.2d 419 (1969).

In Chambers, supra, the Supreme Court noted that it ’ as insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. The Supreme Court stressed that as a general rule the judgment of a magistrate on the probable cause issue and the issuance of a warrant before the search is requisite but nonetheless declared that probable cause, without a warrant, will serve as sufficient authorization for a search under exigent circumstances, saying:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 U. S. at 51-52, 90 S. Ct. at 1981, 26 L.Ed.2d at 428.

Thus, it is plain that a search would have been legal at the place of arrest.

The subsequent search by the Montgomery County Police at the impoundment lot in Montgomery County did not render it constitutionally infirm. On this point Chambers v. Maroney, supra, is dispositive. There, as here, the Supreme Court was faced with the issue of the effect of a deferred search and seizure. The Court commenced its opinion with the following:

“The principal question in this case concerns the admissibility of evidence seized from an automobile, in which petitioner was riding at the time of his arrest, after the automobile was taken to a police station and was there thoroughly searched without a warrant.” 399 U. S. at 43, 90 S. Ct. at 1977, 26 L.Ed.2d at 424.

The Court answered that question by sustaining the trial court’s admission into evidence of the items seized in the deferred search.

Accordingly, no unreasonable search and seizure has been demonstrated. The disputed evidence was properly admitted at trial.

Second, in a very real sense, there was no search. Officer Malinowski testified that he saw the gun in the back seat of the car at the time of arrest. This sighting of the gun in plain view would have entitled the officer to seize the weapon forthwith. As then Chief Judge Murphy of this Court (now Chief Judge of the Court of Appeals) said in Sweeting v. State, 5 Md. App. 623, 627, 249 A. 2d 195, 198 (1969):

“It has been held under circumstances not dissimilar to those involved in the present case that where an officer is in a place where he is lawfully entitled to be (as here, on a public street), the shining of a flashlight at night inside the vehicle while remaining outside does not amount to an illegal search under the Fourth Amendment.” (Citations omitted.)

Thus, under the plain view rule, under circumstances where there was probable cause to believe that the observed weapon had been used in the murder, it was subject to seizure without search. Under the Chambers rationale, the fact that the weapon was not physically seized until later is without significance. See Bailey v. State, 16 Md. App. 83, 108, 294 A. 2d 123, 137 (1972).

Sufficiency

Because the case must be remanded for a new trial by reason of error relating to the admissibility of evidence, we shall say no more than that the evidence in the present record was legally sufficient to convict of felony murder.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Montgomery County.

      . Radio communication to and from EOC concerning the murder commenced at 7:40 p.m. with the telephoned message from the motel employee. Fourteen pages of transcripts of the communications that followed prior to arrest at 8:03 p.m. were entered in evidence. They included messages to and from District of Columbia Police that appellant’s brief described as indicating that “apparently frantic efforts were taking place to coordinate the eventual stop with the District of Columbia police.”

      . Shakespeare: King John Act IV & 2.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MARYLAND v. JOSEPH L. STATCHUK
    [No. 109,
    September Term, 1977.]

      Decided December 7, 1977.

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

      Gilbert Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Stephen B. Caplis, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Timothy Martin, Assistant State’s Attorney for Baltimore City, on the brief, for appellant.

      Philip V. Tamburello for appellee.
   Menchine, J.,

delivered the opinion of the Court.

The following statements of charges were filed against Joseph L. Statchuk in the District Court of Maryland for Baltimore City:

Charge Date of Offense

False Report to Police Art. 27 § 150 2/25/76

False Report to Fire Dept. Art. 27 § 151 2/ 5/76

False Alarm of Fire Art. 27 § 156 2/ 4/76

False Alarm of Fire Art. 27 § 156 1/15/76

False Alarm of Fire Art. 27 § 156 1/26/76

False Report to Police Art. 27 § 150 2/27/76

He was arrested on March 3,1976.

The charges, within the jurisdiction of the District Court, were transferred to the Criminal Court of Baltimore when Statchuk elected trial by jury.

When the State brought the charges to trial on January 24, 1977, a previously filed motion to dismiss for want of a speedy trial was granted by the trial judge. The State has appealed. Md. Cts. & Jud. Proc. Code Ann. § 12-302 (c) (1974).

Barker v. Wingo, 407 U. S. 514, 530, 92 S. Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17 (1972), makes manifest that the question whether one has been denied a constitutional right to a speedy trial must be approached by the courts on an ad hoc basis by the application of a balancing test in which the conduct of both the prosecution and the defendant are weighed. The Supreme Court, leaving open whether there may be other factors that might go into the balancing test, identified four factors that courts should assess in determining whether a particular defendant has been deprived of his right to a speedy trial, namely: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

The Court of Appeals and this Court consistently have utilized those factors as bench marks in determinations of the question. Jones v. State, 279 Md. 1, 367 A. 2d 1 (1976); Epps v. State, 276 Md. 96, 345 A. 2d 62 (1975); State v. Wilson, 35 Md. App. 111, 371 A. 2d 140 (1977); Sylvester v. State, 16 Md. App. 638, 644, 299 A. 2d 129, 132 (1973).

Length of Delay

In Barker v. Wingo, supra, it was said at 407 U. S. 530, 92 S. Ct. 2192, 33 L.Ed.2d 117: “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”

In the subject case the delay was from March 3, 1976 to January 24, 1977, a period of 10 months and 21 days. Although borderline, we conclude that this delay in a case of the subject nature is of constitutional dimension and requires us to consider the other factors.

The following chart of events will serve to set the stage for our discussion of the other factors in the balancing process.

March 3,1976 Arrested for subject offenses.

March 26,1976 Released on bail.

April 18,1976 Arrested on new charge of “impersonating attorney,” jailed when unable to meet increased bail costs.

May 12,1976 State ready for trial in District Court for Baltimore City. Defendant appeared with counsel but elected trial by jury.

May 13,1976 Case transferred to Criminal Court of Baltimore and set for trial on July 8,1976.

about May 18,1976 Released on bail.

about May 19,1976 Arrested on “another charge of impersonating an attorney.” Jailed.

July 8,1976 Case called for trial but defendant appeared without counsel.

July 8,1976 Defendant transferred to Clifton T. Perkins Hospital by sua sponte order of court.

September 22,1976 Case postponed by defendant absent evaluation from Clifton T. Perkins Hospital.

September 23,1976 Counsel for Statchuk filed insanity plea, speedy trial motion, motion to suppress identification, motion for discovery and inspection.

October 14,1976 Clifton T. Perkins Hospital Report filed.

November 10,1976 Case postponed, court not available.

December 29,1976 Case postponed, end of jury term.

January 5,1977 Motion to dismiss for want of speedy trial.

January 24,1977 Case ready for trial but dismissed for want of speedy trial.

Reason for Delay

The Supreme Court in Barker v. Wingo, supra, made plain that different weights should be assigned for different reasons for delay. Because we think that the subject delay ranges from the justified through the unjustified, we shall divide the period from arrest to trial into segments for our discussion.

We observe at the outset that there is not the slightest indication in the record that the State had made a deliberate attempt to delay the trial in order to hamper the defense. See Barker, supra, at 531, [2192], [117].

March 3, 1976 to July 8, 1976

(Arrest to Initially Scheduled Trial Date)

The offenses took the form of a series of six similar but separate offenses, each of which posed a potential threat of public danger.

False alarms or reports of fire carry within themselves a potential for public harm. Emergency vehicles responding to them present traffic dangers of significance. Absences of fire equipment from their stations on fruitless missions carry a potential for harm by reason of the likelihood of less timely response to a real emergency.

False reports to the police cast added investigative burdens upon them such as necessarily lessen availability of officers to avert criminal offenses or to seize criminal offenders.

The multiple cases presented, in short, a degree of complexity and importance distinguishing them from routine, “run-of-the-mill” offenses.

The trial judge assessed this period of time against the State. We think it was error to do so.

Judge Moylan for this Court pointed out in State v. Lawless, 13 Md. App. 220, 283 A. 2d 160 (1971), that blame should not be assigned to the State for the reasonable and necessary delay inherent in a particular prosecution, saying at 230 [169]:

“Recognizing that the right to a ‘speedy trial’ is not the right to an immediate trial, but that time must be allowed for reasonable preparation on the part of the prosecution and for the orderly process of the case from indictment to retention (or appointment) of counsel to arraignment to trial, we reckon as ‘delay’ only the passage of time beyond that which is the obvious requirement of orderly procedure.” (Footnotes omitted.)

The validity of that idea was affirmed in Epps v. State, 276 Md. 96, 345 A. 2d 62 (1975), where the late Judge O’Donnell, speaking for the Court of Appeals, said at 110 [72]:

“The appellant, of course, upon being charged ‘was not entitled to demand an immediate trial,’ Jones v. State, supra, [241 Md.] at 610, 217 A. 2d at 374; sufficient time must be allowed for the reasonable preparation of the case on the part of the prosecution and for the orderly processes of the case ‘because of the many procedural safeguards provided an accused.’ United States v. Ewell, supra; State v. Lawless, supra. For ‘speedy trial’ purposes the delay involved is reckoned only in connection with ‘the passage of time beyond that which is obviously within the requirements of orderly procedure.’ State v. Lawless, supra, [13 Md. App.] at 230, 283 A. 2d at 169.”

We conclude that the period now under discussion was within a time frame in which multiple offenses of the subject nature reasonably could or should be brought to trial, i.e., the delay was “within the requirements of orderly procedure.” We think that no blame attaches to the State for this portion of delay.

July 8, 1976 to September 28,1976

(Initially Scheduled Trial Date to Insanity Plea)

We have heretofore noted that when the series of cases came on for trial in the District Court of Maryland for Baltimore City, Statchuk appeared with counsel and elected a jury trial. Such procedure was, of course, quite within the rights of the accused and is mentioned merely because, when Statchuk appeared in the Criminal Court of Baltimore on July 8, 1976 to stand trial, he did so without counsel. Only then was the trial judge informed by the accused that he had chosen to discharge his personal attorney and desired to represent himself.

Thus it was that the judge assigned to the scheduled July 8, 1976 trial postponed it and passed an order stating, inter alia, that “the Defendant’s behavior in Criminal Court Part XI on July 8,1976 presents the question of his competency to stand trial on these charges and other charges now pending.”

The order went on to require delivery of the accused “to the custody of the Superintendent of Clifton T. Perkins State Hospital to determine his competency to stand trial and whether he is responsible for the criminality of his actions and whether he is a danger to himself or society.”

The order also recited that “the said Defendant has been evaluated by the Medical Officer of the Supreme Bench, the report thereof indicating that the said Defendant is dangerous and may not be responsible for his conduct.” The record shows that the accused indeed had been evaluated by a Medical Officer of the Supreme Bench in connection with an earlier incident involving an entirely unrelated offense. Contrary to the recitation in the order, however, the report of that Medical Officer showed that the accused then was competent to stand trial.

The record does not reflect that a hearing concerning competency was held on July 8, 1976. There is no record support for the bald allegation of the order that “the Defendant’s behavior in Criminal Court Part XI on July 8, 1976 presents the question of his competency to stand trial.”

Maryland Code (1957, 1972 Repl. Vol.) Article 59, § 23 authorizes passage of an order requesting an examination by the Department of Mental Hygiene whenever it shall appear to the court that an accused is incompetent to stand trial. The section makes plain, however, that the court should pass such an order only “for good cause shown and after affording the defendant an opportunity to be heard on his own behalf or through counsel.”

In the absence of a record showing that such an opportunity was accorded to the accused on July 8, 1976, we shall assign against the State the lion’s share of blame for the entire period from that date until September 23, 1976, when an insanity plea was filed by counsel for the accused — a period of 2 months and 15 days.

This is not to say that Statchuk does not carry a share of blame for that delay. He contributed to it on two counts. First, he appeared for trial without counsel, delaying until that date the giving of notice to the court that he had discharged his attorney. Second, he only then advised the court of his desire to represent himself. These actions imposed a dual constitutional obligation upon the trial judge.

On the one hand, Statchuk was entitled to be represented by counsel as a matter of absolute constitutional right. Sixth Amendment to the United States Constitution. This right “invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” Johnson v. Zerbst, 304 U. S. 458, 465, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1467 (1938).

On the other hand, Statchuk also had a constitutional right to represent himself. Faretta v. California, 422 U. S. 806, 95 S. Ct. 2525, 45 L.Ed.2d 562 (1975). Faretta requires trial courts to assure that one who chooses self-representation “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” 422 U. S. at 835, 95 S. Ct. at 2541, 45 L.Ed.2d at 582.

Otherwise stated, the trial judge found himself suddenly confronted with constitutional obligations in which the competence of the accused was of critical significance. While not in accord with statutory standards as discussed above, the course he followed was intended to assist in determining appellant’s competence respecting either waiver of counsel or self-representation. This circumstance, in our view, lessens the weight of the blame that otherwise might attach to this period.

In any case, State fault terminated on September 23,1976, because the filing of an insanity plea on behalf of the accused on that date justified passage of an order for examination of the mental condition of an accused under Article 59, § 25. The clear intent of the latter section is that a defendant, raising the defense of insanity, is under a legal obligation to submit to an examination. Bremer v. State, 18 Md. App. 291, 316-17, 307 A. 2d 503, 519-20 (1973), cert. denied, 415 U. S. 930, 94 S. Ct. 1440, 39 L.Ed.2d 488 (1974); Riggleman v. State, 33 Md. App. 344, 354, 364 A. 2d 1159, 1165 (1976).

September 23, 1976 to October lk, 1976 (From Insanity Plea to Filing of Perkins Report)

The medical report of Perkins Hospital upon the mental condition of the accused was filed in the proceedings on October 14, 1976. This filing occurred well within the time designated by Article 59, § 26. No State induced delay is reflected in it. It is wholly neutral and reasonable and without significance in the constitutional analysis.

October lk, 1976 to November 10, 1976 (Perkins Report Filing to Assigned Trial Date)

This delay was in no sense inordinate. It is within a wholly reasonable time frame. We assign no blame to the State for that delay. Epps, supra.

November 10, 1976 to January 2k, 1977 (Postponed Trial Date to Actual Trial Date)

The cases were postponed on November 10, 1976, because “no court was available.” They were postponed again on December 29,1976, because “there was no jury available.”

This delay seems to us to be of the nature discussed by Chief Judge Murphy in Smith v. State, 276 Md. 521, 350 A. 2d 628 (1976) explicating Barker v. Wingo, supra, where he said at 528-29 [633]:

“In Barker, Mr. Justice Powell, for the Supreme Court, expressed the view that ‘different weights should be assigned to different reasons [for delay].’ 407 U. S. at 531, 92 S. Ct. at 2192. Initially, he observed that ‘[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.’ Id. He then indicated that prolongation of trial due to the negligence of state officials, understaffing of state offices or overcrowded courts, while not to be considered neutral, is to be ‘weighted less heavily’ toward a finding of a violation of the Sixth Amendment right.”

We assign fault for this delay to the State but measure its weight less heavily in the delicate balance required for determination whether violation of a Sixth Amendment right has been shown. This delay was of 2 months, 14 days duration.

Defendant’s Assertion of His Right

The defendant filed his motion for a speedy trial on September 23, 1976, 6 months and 20 days after his arrest. In Barker, supra, the Supreme Court, while rejecting the demand rule within the concept of waiver, emphasized “that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U. S. at 532, 92 S. Ct. at 2193, 33 L.Ed.2d at 118.

Prejudice to the Accused

In discussing the factor of prejudice the Supreme Court in Barker, supra, identified three interests of defendants which the speedy trial right was designed to protect, namely: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id.

(i)

The accused was admitted to bail on March 26, 1976, twenty-three days after his arrest upon the subject charges. His subsequent confinement on April 18,1976, resulted from his arrest upon another unrelated charge. Readmitted to bail on May 18, 1976, he was reconfined on May 19, 1976, as the result of arrest upon a third unrelated charge.

Otherwise stated, Statchuk’s confinement as the result of the subject cases was limited to the twenty-three day period immediately following his arrest (March 3-March 26). His subsequent confinement was the product of unrelated other offenses. No oppressive pretrial incarceration as to the subject offenses has been shown.

(ii)

The only anxiety and concern of the accused reflected in his testimony upon the speedy trial issue relates to an allegation of inadequate medical treatment while in confinement. We have pointed out, supra, that his confinement in jail after March 26,1976, was not occasioned by the subject charges but by his arrest upon other offenses. Whatever may be appellant’s ability to show prejudice attaching to the State’s failure to try those other offenses, it is plain from this record that this suggested prejudice was not a product of the prosecution now under discussion.

(iii)

There is no evidence whatever that the defense of the accused was in any way impaired by the delay in bringing these cases to trial. Appellant in the course of his testimony declared that the delay caused the loss of one Anthony Blackwell as a witness in his behalf. The record affirmatively shows an acknowledgment that “Mr. Blackwell is related to the charges charging the defendant of representing himself as an attorney.”

There has been, in sum, no prejudice to the accused occasioned by delay of the trial of the subject offenses.

The Balancing

The totality of State induced delay in the subject prosecution was 4 months, 29 days. Such a delay is marginally substantial at best. The course followed by the accused contributed somewhat to one-half of that delay. The other half of the delay, while not entitled to a neutral designation, is of the kind to be “weighted less heavily” in the balance. Smith v. State, supra, at 529 [633].

Even if we were to assume that the period of State induced delay amounted to “substantial delay” which created a presumption of prejudice and shifted the burden of going forward with the evidence to the State, the appellee is not helped. State v. Jones, 18 Md. App. 11, 29, 305 A. 2d 177, 187 (1973). We have heretofore explained that the record affirmatively demonstrates that the accused suffered no significant prejudice.

The accused was tardy in his assertion of his right to a speedy trial. In Barker, supra, the Supreme Court said: “ ... The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U. S. at 531-32, 92 S. Ct. at 2192-93, 33 L.Ed.2d at 117-18.

Under our constitutionally mandated examination of the record as a whole, with consideration given to all factors of the balancing process, we are persuaded that the accused was not denied his constitutional right to a speedy trial. Dismissal of the statements of charges was erroneous.

Orders dismissing statements of charges reversed.

Costs to be paid by appellee.

      . The threshold question whether the length of delay is such as to require inquiry into the other factors is to be determined by consideration of the time from which a person becomes an “accused” to the date of trial. United States v. Marion, 404 U. S. 307, 320, 92 S. Ct. 455, 463, 30 L.Ed.2d 468, 479 (1971); Smith v. State, 276 Md. 521, 528 n. 4, 350 A. 2d 628, 633 n. 4 (1976); Dorsey v. State, 34 Md. App. 525, 532-33, 368 A. 2d 1036, 1041 (1977).


author: Melvin, J.,

text:
    DeFRANCEAUX REALTY GROUP, INC. et al. v. ELIZABETH THOMAS LEETH et al.
    [No. 213,
    September Term, 1977.]

      Decided December 8, 1977.

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

      Warren Browning for appellants.

      Darrel L. Longest, with whom were Mann, Larsen & Longest on the brief, for appellee Elizabeth Thomas Leeth. Submitted on brief by Michael Esher Yaggy and Piper & Marbury for other appellee.
   Melvin, J.,

delivered the opinion of the Court.

This is an action by real estate brokers (plaintiffs-appellants) for a commission from the sellers (defendants-appellees) under a contract for the sale of real estate. At the close of the plaintiffs’ case at a jury trial in the Circuit Court for Frederick County, the trial judge (Mathias, J.) granted the defendants’ motion for a directed verdict. From the judgment entered thereon, the brokers appeal. We shall affirm the judgment in favor of the sellers.

By written contract dated July 23,1971, the sellers agreed to sell approximately 115 acres of land in Frederick County to Urban Systems Development Corporation (buyer) for a price of $5,500 per acre. Under the contract the buyer was given the right to terminate the agreement within specified periods of time if commitments for public water and sewer could not be obtained or if “engineering, economic and/or topographic studies ... do not warrant the development of the property, in the sole discretion of the Purchaser”, or if the purchaser could not obtain appropriate zoning for the property to permit “a planned unit development” thereon. The contract provided that settlement was to-take place within thirty (30) days “after the final and unappealable rezoning approval has been granted”.

The contract provision for commissions is as follows:

“THE SELLERS agree to pay a commission amounting to ten per centum (10%) of the gross sales price on their respective share thereof, and the attorneys, through whom settlement is made, are hereby authorized and directed to make deduction of the aforesaid commission from the proceeds of the sale, and to make the payment thereof to Paul B. Ganley, Inc., Agent and Broker, and Frederick W. Berens Sales, Inc., (E. Brooke Lee, Jr., representative).”

The contract further provided that:

“IT IS further understood and agreed that all deposits under this contract shall be held until settlement or forfeiture in the name of Paul B. Ganley, Inc., Agent and Broker, Route 6, Frederick, Maryland. In the event of the default on the part of the Purchaser under this contract, such deposits shall be forfeited as provided and be paid one-half to the Sellers and one-half to Paul B. Ganley, Inc., Agent and Broker, and Frederick W. Berens Sales, Inc. (E. Brooke Lee, Jr., representative).”

By the contract (which was signed by the brokers as well as the sellers) one of the brokers acknowledged receipt from the buyer of the only deposit ($10.00) mentioned in the contract, “to be applied as part payment toward the purchase price at settlement”.

The brokers concede that under the contract provisions and the applicable Maryland case law construing similar provisions their right to a commission was conditioned upon a consummation of the sale and the creation of the fund, the “proceeds of the sale”, from which to pay it. See Berman v. Hall, 275 Md. 434, 439, 340 A. 2d 251 (1975); Cohen v. Duclos, 272 Md. 41, 45, 321 A. 2d 145 (1974); W. C. Pinkard & Co. v. Castlewood Realty Co., 271 Md. 598, 601, 319 A. 2d 123 (1974); Snider Brothers, Inc. v. Heft, 271 Md. 409, 416, 317 A. 2d 848 (1974); Prince George’s Country Club v. Carr, 235 Md. 591, 603, 202 A. 2d 354 (1964); Chasanow v. Wilcox, 220 Md. 171, 176, 151 A. 2d 748 (1959); Goss v. Hill, 219 Md. 304, 307-308, 149 A. 2d 10(1959).

It is undisputed that the sale in this case was never consummated and the fund for the payment of a commission was never created. The brokers, nevertheless, vigorously assert their right to a commission of approximately $62,000.00.

The evidence presented by the brokers, viewed in the light most favorable to them, showed that the buyer wrongfully refused to consummate the sale; that thereupon on May 25, 1973, the sellers and the brokers filed suit for specific performance against the buyer alleging their own readiness, willingness and ability to proceed to settlement pursuant to the contract provisions and the buyer’s unwarranted refusal to do so; that the same counsel represented the sellers and the brokers in that suit; that the specific performance case was eventually settled before trial in January 1974; that by the terms of the settlement the buyer delivered to the sellers certain development plans and documents relating to the property in exchange for a dismissal of the suit; and that the brokers had no actual knowledge of the dismissal of the suit and did not participate in advising the trial court that the case had been settled.

On May 8, 1974, the brokers filed the instant suit for commissions against their erstwhile co-plaintiffs in the specific performance case. They argue that although their right to a commission was conditioned upon settlement under the contract of sale, the action of the sellers in settling the specific performance case was a “voluntary rescission of the agreement with the purchaser” and had the effect of eliminating the condition precedent to their right to a commission. They rely upon the principle set forth in 3 A Corbin, Contracts, § 768, p. 548 (1960):

“Often there are other conditions of the owner’s duty to pay a commission to the broker. The owner may promise to pay a commission ‘on closing of the deal,’ or ‘out of the price when received from the purchaser,’ or ‘after actual conveyance of the land.’ The broker’s right to payment is thus made subject to an additional express condition. If the owner, after the broker procures an able and willing purchaser and there is mutual assent on terms, prevents the happening of the condition by refusing to make the conveyance or by a voluntary rescission of the agreement with the purchaser, the condition is eliminated and the broker can get judgment for the agreed commission. There is no prevention by the owner, if it is the purchaser who repudiates his bargain and the owner merely forbears to bring an action for enforcement.” (Emphasis added.)

Assuming, arguendo, that a voluntary rescission by a seller of his contract with a buyer would eliminate an original condition precedent (i. e. settlement) to the payment of commissions, we hold that in this case the sellers’ actions did not amount to “voluntary rescission” as that term is used by Professor Corbin in the above quoted section of his work. Here, according to the evidence presented by the brokers, it was the buyer that repudiated its bargain. In such a case, “[t]here is no prevention by the owner . . . if . . . the owner merely forbears to bring an action for enforcement”. Id. Thus, the sellers in this case could not have been charged with preventing the happening of the consummated sale (the condition precedent to the brokers’ right to a commission) if they had taken no action at all to enforce the contract. Absent fraud or bad faith, should they be in a worse position because they did bring an action for enforcement and then settle the case for something less than substantial performance? We think not. As there was no evidence of fraud or bad faith on the part of the sellers, we think Judge Mathias was correct in directing a verdict in their favor.

Judgment affirmed.

Costs to be paid by appellants.

      1. On June 6,1973, Frederick W. Berens Sales, Inc. changed its name to DeFranceaux Realty Group, Inc., which, with Paul B. Ganley, Inc., are the appellants herein.

      . The evidence showed the property to consist of 112.407 acres.

      . But. see Berman v. Hall, supra, where the Court of Appeals held that the trial court correctly sustained, without leave to amend, a demurrer to the broker’s declaration where the agreement conditioned payment of commissions upon settlement and settlement did not occur. There the buyer and seller had executed a “mutual release”. There had been no default by the purchaser and it did not appear from the facts set forth in the declaration why the “mutual release” was entered into. If a “mutual release” does not eliminate the condition precedent (settlement) to a broker’s commission, we think there is force to the argument that a “voluntary rescission” by the seller does not have that effect either, and if it does not, the “Corbin principle” concerning “voluntary rescission” espoused by the appellants would seem to have no validity in Maryland. However, the Court in Berman v. Hall did not discuss the Corbin principle and for the purposes of the case sub judice we shall assume, without deciding, that it is applicable in Maryland.


author: Thompson, J.,

text:
    MELVIN WINFIELD BROWN v. STATE OF MARYLAND
    [No. 215,
    September Term, 1977.]

      Decided December 8, 1977.

    The cause was submitted on briefs to Thompson, Melvin and Wilner, JJ.
    Submitted by O. Daniel Kadan, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Alexander L. Cummings, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Steven J. Scheinin, Assistant State’s Attorney for Baltimore County, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Melvin Winfield Brown, the appellant, pleaded guilty to common law assault in the Circuit Court for Baltimore County, and was sentenced to twenty years’ imprisonment by Judge William R. Buchanan, Sr. In this appeal he poses a single question:

“Did the trial court violate the appellant’s constitutional guarantee against cruel and unusual punishment?”

The appellant was indicted for rape in the second degree under Md. Code, Art. 27, § 463 (a) (1) (forceable rape) and (2) (where the victim is mentally defective), assault with intent to rape, and common law assault. Initially, the appellant entered a plea of not guilty by reason of insanity, but after the Clifton T. Perkins State Hospital and Dr. James E. Smith, II both reported him to be sane, he withdrew this plea and tendered a guilty plea to the charge of common law assault. After the appellant was questioned to determine that the plea was free and voluntary, the following occurred:

“[Assistant State’s Attorney]: Your Honor, I first wish to plaCe on the record the plea agreement in this case between the State and the defense, as follows: That the defendant, Melvin Winfield Brown, who is in court today, would plead guilty to the fourth count of Indictment 55604, common law assault. Upon acceptance of this plea by the court, the State will nol pros the remaining counts of the indictment. There have been no other plea negotiations in this case. The State will now proceed on an agreed statement of facts, a copy of which has been given to defense counsel and a copy which I have shown to the victim’s mother, seated in court today in the first row.
“On July 18th, 1976 at approximately 3:20 P.M., the defendant, Melvin Winfield Brown, drove to the farm of Whitey Heiman, located at 4247 Butler Road in Baltimore County, Maryland, and advised Mr. Heiman and the victim, Deborah Watson, a mentally retarded girl, age fifteen, that Debbie’s mother had asked the defendant to drive both Mr. Heiman and Debbie to the bar located at 1 Main Street, Reisterstown, Maryland, where Debbie’s mother worked. Both Mr. Heiman and Débbie got into Mr. Brown’s automobile, and traveled west on Butler Road to Hanover Pike, and from Hanover Pike to Main Street in Reisterstown. While traveling on Main Street, the defendant stopped the vehicle at Main and Chatsworth Streets, where the defendant order Mr. Heiman out of the car by saying, ‘You better get out or I will get you out of the car,’ in a tone of voice which Mr. Heiman believed that if he didn’t comply the defendant would harm him. Mr. Heiman then ran north on Main Street to the bar where he met Debbie’s mother, and related the above. Elaine Owens, the mother of the victim, Debbie, had never told Mr. Brown to pick up her daughter, and she called the police to report an abduction.
“Officer Henry of the Baltimore County Police Department arrived at the scene, and was taking a report for kidnapping, when the defendant, Melvin Winfield Brown, walked in with the victim, Debbie Watson. Debbie immediately advised her mother, as well as the police officer, that the defendant, ‘put his thing inside of me.’
“Debbie Watson would testify that on July 18th, 1976 she was at Heiman’s farm, and that while at the farm a man, whom she would identify as the defendant, Melvin Winfield Brown, in court today, told her that she had to come with him. After Mr. Heiman had left the car, the defendant drove the car to a wooded area, and then took her back into the woods, holding her hand. The man told her to pull her pants down, she refused, so he pulled her pants off. Deborah hit him twice on his head, and told him to quit it, but he said no. Deborah would further testify that the defendant took his pants off, and while she was standing, ‘he put his ding dong in her hiney’. He told her not to tell her mother. Afterwards, he got dressed and told her to get dressed, then he pushed her back in the car, and drove her to the bar where her mother works. Deborah Watson was transported to the Baltimore County General Hospital, where she was examined by Dr. Salomy.”

Prior to sentencing the trial judge was informed by the State’s Attorney that the appellant had previously been convicted of the following offenses:

Date Charge Sentence

1947 perverted practices 5 years

1956 assault w/intent to rape 10 years

1967 incest, assault Patuxent

1974 larceny 60 days

The appellant argues that as the statutory maximum for each of the first three charges was 20 years, a sentence of! 20 years for simple assault, a lesser included offense in each of the other charges, constituted cruel and unusual punishment. We find no merit in this contention.

Although the legislature has imposed maximum penalties for statutory assaults, there is no limitation on the penalty which may be imposed for common law assaults, other than the prohibition against cruel and unusual punishment. Both this Court and the Court of Appeals have held that a sentence of 20 years’ imprisonment for common law assault did not constitute cruel and unusual punishment. Roberts v. Warden, 242 Md. 459, 219 A. 2d 254 (1966), cert. denied, 385 U. S. 876; Adair v. State, 231 Md. 255, 189 A. 2d 618 (1963); Raley v. State, 32 Md. App. 515, 363 A. 2d 261 (1976); Wilkins v. State, 5 Md. App. 8, 245 A. 2d 80 (1968). The appellant acknowledges this line of authority but argues Roberts v. Collins, 404 F. Supp. 119 (D. Md. 1975), aff'd, 544 F. 2d 168 (4th Cir. 1976) has eroded the viability of these cases.

Although we are bound by decisions by the Court of Appeals of Maryland and not by those of the lower federal courts, the appellant’s reliance on Roberts v. Collins, supra, is misplaced. In that case the appellant was charged with assault with intent to murder and common law assault. He pleaded guilty to common law assault and was sentenced to 20 years’ imprisonment even though the crime of assault with intent to murder carried a maximum penalty of 15 years at that time. The Court held that the imposition of a sentence on the lesser included offense which was greater than the maximum penalty for the more aggravated offense constituted cruel and unusual punishment. In striking down the sentence, the Court was-of the opinion that only that portion of the sentence which exceeded the statutory maximum for the more aggravated offense was cruel and unusual. In the instant case, the sentence imposed by the trial judge was equal to the statutory maximum which could have been imposed for the other charges contained in the indictment. Hence, even if we were to accept the reasoning of Roberts v. Collins, supra, it simply does not apply in this case.

Although the appellant does not argue that the sentence is otherwise cruel and unusual, such an argument would not be impressive in view of his extensive record and the nature of the offense. We entirely agree with the following statement made by the trial judge at the time of sentencing.

“I can only come up with one conclusion that is obvious to me because of his background and because of his past convictions, that he has what I would call a disorganized sex drive; ... he is definitely a hazard to the community. In the light of that, the sentence will be twenty years to the Department of Correction.”

Judgment affirmed.

Appellant to pay the costs.


author: Liss, J.,

text:
    THE AETNA CASUALTY AND SURETY COMPANY et al. v. THE BRETHREN MUTUAL INSURANCE COMPANY et al.
    [No. 218,
    September Term, 1977.]

      Decided December 8, 1977.

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

      Benjamin R. Goertemiller and E. Charles Dann, Jr., with whom were John S. Landbeck and Semmes, Bowen & Semmes on the brief, for appellants.

      William H. Hicks, with whom were George M. Radcliff and Niles, Barton & Wilmer on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

The Aetna Casualty and Surety Company (Aetna) and its insured, J. William Boniface (Boniface), appellants, filed a declaratory judgment action in the Circuit Court for Baltimore County, seeking a declaration that an insurance policy issued to Boniface by The Brethren Mutual Insurance Company (Brethren), appellee, provided him with coverage for certain claims made against him by one Henry L. Barnett (Barnett). They also sought a declaration: 1) that Brethren is responsible for certain attorneys’ fees and other costs incurred by Aetna in defending Boniface against the claims being made against him by Barnett, and 2) that Brethren must pay the attorneys’ fees and other costs incurred by Boniface and Aetna in pursuing the declaratory judgment action. On February 14, 1977, a hearing on the merits of the declaratory judgment action was held before Judge Marvin J. Land, who denied all of the requested declarations. This appeal was taken from that decision.

The facts are not disputed, and the parties have set forth in the joint record extract filed in this appeal an agreed statement of facts which we will accept as the factual basis for this controversy. That statement, with minor amendments, we repeat here verbatim:

“J. William Boniface and William Boniface, as partners, owned and operated a farm in Harford County, Maryland, known as Bonita Farm, which consisted of a total of one hundred acres with approximately eighty acres being devoted to the breeding and raising of young, thoroughbred race horses — including the pasturing of these horses, and the remainder being comprised of the private residences of J. William Boniface and William Boniface; barns for the purpose of stabling horses; ... an indoor training track; an outdoor training race track; and a small amount of unused woodland. J. William Boniface and William Boniface owned brood mares which they kept at Bonita Farm for breeding, and depending on the quality of the foals produced, they would either sell them or train them for racing. They also entered horses into races at tracks away from Bonita Farm. In addition, at Bonita Farm they bred, raised, and trained thoroughbred race horses owned by others.
“On September 15, 1972, Boniface purchased for $1,300 a brood mare known as Sasal, which until December 8, 1973 was kept at Bonita Farm solely for breeding purposes; . . . she was never raced, nor was she ever in training for racing. Although she was bred in the Spring of 1973 she was barren and was, therefore, kept in a field away from the mares in foal. At some time late in the night of December 7, or early in the morning of December 8, 1973, Sasal escaped from the field on Bonita Farm in which she had been pasturing, and on December 8, 1973, she was involved in a collision on Creswell Road in Harford County with an automobile being driven by Barnett. As a result of the injuries Mr. Barnett sustained in the collision, he brought suit against Boniface [which has been stayed pending the outcome of this case], alleging that Sasal was running loose on Creswell Road due to the negligence of Boniface in that she had escaped through an open gate in the fence surrounding the field where she had been pasturing.
“On December 7 & 8,1973, Aetna had in full force and effect a policy of insurance titled, ‘Manufacturers’ and Contractors’ Liability Policy’ (No. 98PS71499), under which Boniface, inter alia, was a named insured and which obligated Aetna to provide Boniface with a defense to the law suit brought against him by Barnett and to pay to the limits of the policy, $100,000, any monies which Boniface is found to be legally obligated to pay Barnett as a result of the collision involving Sasal.
In addition, the Aetna policy contained the following provision:
Other Insurance. The insurance afforded by this policy is primary insurance except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the company’s liability under this policy shall not be reduced by the existence of such other insurance.
When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below:
(a) Contribution by Equal Shares. If all of such other valid and collectible insurance provides for contribution by equal shares, the company shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limits of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each such insurer has paid its limit in full or the full amount of the loss is paid.
(b) Contribution by Limits. If any of such other insurance does not provide for contribution by equal shares, the company shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss.

“In addition, on December 7 & 8, 1973, Boniface was a named insured under a policy of insurance (No. 51648) issued by Brethren, which provided fire and extended coverage and which included a ‘Farmers’ Comprehensive Personal Liability Endorsement’. Under the terms of this endorsement which also contained $100,000 limits, Brethren was obligated to:

I. COVERAGE L - PERSONAL LIABILITY
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.
“The policy also contained an exclusion which provided that coverage does not apply:
(b) to bodily injury or property damage arising out of
(1) business pursuits of any insured except
(i) activities therein which are ordinarily incident to non-business pursuits and
(ii) farming, or
(2) the rendering of or failing to render professional services.
“It also defined farming to include, ‘the operation of roadside stands maintained principally for the sale of the insured’s farm products.’ In addition, the policy contained the following provision:
Other insurance. The insurance afforded by this endorsement is primary insurance except that with respect to loss arising out of the ownership, maintenance, operation, use, loading or unloading of 1) any automobile or midget automobile at the insured premises, or 2) watercraft, or any land public conveyance, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.
When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below:
(a) Contribution by Equal Shares. If all of such other valid and collectible insurance provides for contribution by equal shares, the company shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each such insurer has paid its limit in full or the full amount of the loss is paid.
(b) Contribution by Limits. If any of such other insurance does not provide for contribution by equal shares, the company shall not be liable for a greater proportion of such loss than the applicable limit of liability under this endorsement for such loss bears to the total applicable limit of liability by all valid and collectible insurance against such loss.
“Pursuant to the terms of their respective policies, Aetna and Brethren retained separate counsel to represent Boniface in the suit filed against him by Barnett and Boniface also retained personal counsel to represent him. In May of 1975, the counsel retained by Brethren withdrew his appearance on behalf of Boniface; and since that date, counsel retained by Aetna, along with personal counsel for Boniface, has represented Boniface in the Barnett suit. In addition, Brethren advised all concerned that it was denying coverage to Boniface for any damages he may be found liable to pay to Barnett.
“As a consequence of the denial of coverage by Brethren, Boniface and Aetna brought a declaratory judgment action in the Circuit Court for Baltimore County in which they requested a declaration: that the policy issued by Brethren is applicable to the claims being made by Barnett against Boniface; that under the applicable terms of the Aetna and the Brethren policies Brethren is obligated to pay, up to $100,000, one half of any monies which Boniface is found liable to pay to Barnett; that Brethren is obligated to pay one half of the legal fees and costs incurred in defending Boniface in the suit brought against him by Barnett; and that Brethren is obligated to pay the legal fees and costs incurred in pursuing the declaratory judgment action. At a hearing on the merits on February 14, 1977, the requested declarations were denied, [and it is from these judgments that Aetna and Boniface have filed this appeal].” (Footnotes omitted; emphasis in original).

(1)

The agreed statement of facts in this case establishes that on the date of the accident which forms the subject matter of this appeal, Boniface was the named insured under the broad coverage of the insurance policy issued by Brethren which provided fire and extended coverage and included a farmers’ comprehensive personal liability endorsement. Under the terms of the endorsement, with policy limits of $100,000, Brethren was obligated to pay all damages which the insured might become legally obligated to pay because of bodily injury or property damage and to defend any suit which might arise out of any occurrence covered by the endorsement. The policy contained an exclusion which provided that coverage did not extend to bodily injury or property damage arising out of the business pursuits of the insured but did provide coverage for such activities which were ordinarily incident to non-business pursuits and farming; farming was so defined as to include “the operation of roadside stands maintained principally for the sale of the insured’s farm products.”

It is conceded that Aetna, by reason of the policy issued to its insured, Boniface, was required to furnish indemnity in the amount of $100,000 and to furnish a defense to any suit filed against him within the coverage of the policy. Aetna and Boniface jointly contend, however, that Brethren was required to supplement Aetna’s coverage and defense up to an additional amount of $100,000 because the incident arose out of Boniface’s activities in “farming” rather than out of business pursuits.

Brethren in its policy did not undertake to define the word “farming”. It seems clear to us that the language used in the exclusionary clause admits of more than one meaning and is equivocal at best. This requires us to apply the test recited in C & H Plumbing and Heating, Inc. v. Employers Mutual Casualty Co., 264 Md. 510, 287 A. 2d 238 (1972), to determine whether there is an ambiguity in the policy. Quoting from 1 Couch on Insurance 2d (1959) at 824, the Court stated the applicable test as: “not what the insurer intended its words to mean, but what a reasonably prudent person applying for insurance would have understood them to mean. The criterion is ambiguity from the standpoint of a layman, not from that of a lawyer.” 264 Md. at 515.

We have no difficulty in concluding that the failure of the policy to define the word “farming” creates an ambiguity so far as the exclusionary clause is concerned. Once having reached this conclusion, we must apply those rules of interpretation of an insurance contract which were most recently stated by Chief Judge Murphy in Aragona v. St. Paul Fire and Marine Insurance Co., 281 Md. 371, 378 A. 2d 1346 (1977):

“Insurance contracts, like other contracts, must be read as a single document and construed as a whole to ascertain what the parties really meant. Federal Ins. Co. v. Allstate Ins. Co., 275 Md. 460, 341 A. 2d 399 (1975); Automobile Ins. Co. v. Thomas, 153 Md. 253, 138 A. 33 (1927). In other words, the primary purpose in construing insurance contracts is to ascertain and effectuate the intention of the parties, U.S.F. & G. v. Nat. Pav. Co., 228 Md. 40, 178 A. 2d 872 (1962); Life Insurance Co. v. Plummer, 181 Md. 140, 28 A. 2d 856 (1942), and the language employed in the policy is to be afforded its ordinary and usually accepted meaning. C & H Plumbing v. Employers Mut., 264 Md. 510, 287 A. 2d 238 (1972); State Farm Mutual v. Treas, 254 Md. 615, 255 A. 2d 296 (1969). When the language is unambiguous and plain as to its meaning, construction of the insurance contract is within the province of the courts, and Maryland has not adopted the rule, followed in many jurisdictions, that an insurance policy is to be most strongly construed against the insurer. Travelers Ins. Co. v. Benton, 278 Md. 542, 365 A. 2d 1000 (1976); Gov’t Employees Insur. v. DeJames, 256 Md. 717, 261 A. 2d 747 (1970). Where, however, the language of an insurance contract is ambiguous, construction is for the jury and the ambiguity is to be resolved against the company which prepared the policy and in favor of the insured. American Cas. Co. v. Aetna Cas., 251 Md. 677, 248 A. 2d 487 (1968); Gov’t Employees Insur. v. DeJames, supra.” Slip Opinion at 4-5.

In a declaratory judgment proceeding, the trial court may sit not only to determine issues of law but as the trier of the facts, and its conclusions as to the facts will not be disturbed unless found to be clearly erroneous. Rule 1086. The declaratory proceeding is appropriate for the purpose of construing an insurance policy and determining the rights and obligations of insurer and insured under its provisions. World Insurance Co. v. Perry, 210 Md. 449, 124 A. 2d 259 (1956); Commercial Casualty Insurance Co. v. Webb, 210 Md. 8, 121 A. 2d 832 (1956). The appellants here chose to institute the declaratory proceeding in such a manner that the court, rather than a jury, was required to resolve the factual dispute as to what the intended coverage of the Brethren policy was. It therefore becomes our task to examine the factual conclusions of the trial court and determine whether or not they were clearly erroneous.

Daniel Webster, the great orator, once said, “When tillage begins, other arts follow. The farmers, therefore, are the founders of human civilization.” Be that as it may, it does not help us in determining when a farmer is engaged in farming. The very definitions of the controlling words in the Brethren policy disclose nuances which are surprising to the casual reader. A careful examination of a number of dictionaries convinces us that the following definitions are those applicable to the factual posture of this case:

Farm — “a tract of land usually with a house or barn, etc. on which crops and often livestock are raised for livelihood; land or water devoted to the raising of animals or fish, e.g., pig-farm, oyster-farm”;
Farmer — “one who follows the occupation of a farmer”;
Farming — “the business of cultivating land, raising stock, — agriculture husbandry.”

Appellants contend that Boniface’s operation of Bonita Farm was “farming” within the ordinary meaning of the word. It is conceded that Boniface did not harvest crops, till the soil, or raise any livestock other than horses. Appellants suggest, however, that the keeping and breeding of brood mares and the pasturing, training, buying and selling of thoroughbred horses is such an activity as was contemplated by the parties under the exclusion of “farming” from the definition of business activities. Appellees contend just as strenuously that Boniface was in the business of breeding and racing thoroughbred horses and that this activity was covered by the terms of the policy which denied coverage for bodily injury and property damage arising out of the business pursuits of the insured.

There is a paucity of instructive legal precedent available for determining the meaning of the word “farming” in an insurance policy of this type. The case factually closest to the one sub judice is Wint v. Fidelity & Casualty Company of New York, 9 Cal. 3d 257, 107 Cal. Rptr. 175, 507 P.2d 1383 (1973). There, the insured — for profit — trained and broke horses, trained riders, advised owners and riders, showed horses, and bred horses of his own and those owned by others. The insured carried out these activities on two parcels of land: One was a 12-acre parcel on which there was a house occupied by the insured, a riding ring, a small office, a cook’s shack, a hay barn, paddocks, and a stable. This parcel was surrounded on three sides by a 500-acre pasture which was fenced in, with a chained and locked gate on the exterior perimeter and another gate between it and the 12-acre parcel. Sometime during the night, several horses escaped from the pasture; and one of them, which was owned by a customer of the insured, ventured onto a road where it was struck by an automobile, the result being that both the driver and the horse were killed. Fidelity had' covered the insured under a Farmers’ Comprehensive Personal Liability Policy which excluded coverage for any injury arising out of a business pursuit of the insured and defined “business” to include “trade, profession or occupation, other than farming.” Although the Court found that the pasturing of horses for a fee would normally be regarded as a business pursuit, it concluded that Fidelity was liable to its insured because of the exclusion stated in its policy. The Court held:

“Fidelity’s policy specifically defines ‘business’ to include ‘trade, profession or occupation, other than farming . . . .’ While McGregor’s ‘riding club’ venture may well be considered beyond any reasonable interpretation of ‘farming,’ the broad term ‘farming’ is not limited merely to the cultivation of the soil, but includes, in addition, the raising and grazing of animals. (See, e.g., Security-First Nat. Bk. v. Pierson, 2 Cal.2d 63, 64-65, 38 P.2d 784.) It is not entirely clear from the record how closely interrelated the ‘riding club’ and ‘grazing’ activities may have been; but in view of the broad reach of the policy’s undefined ‘farming’ terminology, coverage or noncoverage of the grazing activities appear to be, at the very least, ambiguous, thus subjecting the insurer to liability.
“There is nothing in the record to indicate that McGregor engaged in any other farming activities; and to exclude the entire grazing operation would cut the heart out of the special coverage afforded by this farm-oriented comprehensive policy. As hereinabove stated, the policy fails to define ‘farming,’ and grazing can reasonably be interpreted to constitute a farming operation. Consequently, the nonfarming business exclusion is inapplicable, since, as pointed out above, any ambiguity must be construed against the insurer.” (Emphasis in original). 107 Cal. Rptr. at 178-79.

The trial court in the case before us chose to rely upon the dissenting opinion in the Wint case, where it was stated “that the activities of the insured from which the accident arose had nothing to do with farming in any sense of the word but were part and parcel of his business of operating a riding academy and boarding stable.” 107 Cal. Rptr. at 182. It was the view of the dissenting opinion and the trial court that the “Farmers’ Comprehensive Personal Liability Policy” issued by the insurer in Wint was essentially a homeowners’ policy tailored to the special needs and requirements of persons who live in rural areas and engage in those activities of a general agricultural nature.

Two cases in Maryland considering the meaning of the word “farming” are Supervisor of Assessments for Montgomery Co. v. Alsop, 232 Md. 188, 192 A. 2d 484 (1963) and Keeney v. Beasman, 169 Md. 582, 182 A. 566 (1936). Alsop involved a claim by a retired businessman that his property, which was formerly a dairy farm, was entitled to the lower tax rate applicable to farm property because he allowed a neighbor to graze from forty to fifty head of cattle and to grow and cut hay on the land in exchange for general farm maintenance work. Affirming the Circuit Court’s finding that the land was primarily used for farming, the Court stated:

“[T]he land is used as a pasture for grazing forty or more beef and dairy cattle and for the production of hay to feed such cattle during the winter months; and that the proportion of the farm used for agricultural purposes is far in excess of the proportion used as a curtilage to the main dwelling and as yards and vegetable gardens appurtenant to the rented houses. This was enough to require a finding that the land was in fact a bona fide farm.... In the instant case it seems clear that the grazing and feeding of a herd of more than forty head of beef and dairy cattle on the land in question throughout the year is a ‘farm or agricultural use’ within the meaning of the constitutional and statutory provisions.” 232 Md. at 194.

Keeney v. Beasman, supra, involved a claim for workmen’s compensation which was defended on the ground that the employee of a dairy farm operation was a farm laborer and therefore not covered under the Workmen’s Compensation Law. The Court said:

“Literally, agri cultura means the tillage or cultivation of the soil. But, like many words compounded of different elements, it has a meaning of its own broader than that of its elements considered separately, for from time immemorial it has been regarded as synonymous with husbandry, and includes, not only the cultivation of the soil and the raising of crops, but also ‘gathering in the crops and raising live stock’ ....
“In Rawle’s Edition ofBouvier’s Law Dictionary this definition is given: ‘The cultivation of soil for food products or any other useful or valuable growths of the field or garden; tillage, husbandry; also, by extension, farming, including any industry practised by a cultivator of the soil in connection with such cultivation, as breeding and rearing of stock, dairying,’ etc. In Philadelphia v. Davis, 6 Watts & S. (Pa.) 269, 279, ‘farm products’ were held to be ‘swine, horses, neat cattle, sheep, manure, cordwood, hay,’ as well as ‘vegetables, fruit, eggs, milk, butter, lard, and other provisions for the mouth.’ In Davis v. Industrial Commission, 59 Utah, 607, 206 P. 267, 268, a sheep herder was held to be an ‘agricultural laborer.’ ” 169 Md. at 586-87.

See also, Beyer v. Decker, 159 Md. 289, 150 A. 804 (1930).

In a zoning case, where the ordinance permitted farming in a residential zone, a farmer who had previously conducted a dairy business upon the premises changed the use of the premises to horse raising. The Supreme Court of New Jersey in Stout v. Mitschele, 135 N.J.L. 406, 52 A. 2d 422 (1947), held that there was no violation of the zoning ordinance, as the owner’s activities still constituted farming. The Court stated:

“We do not think it can be said that the record before us shows that the raising of horses as conducted is not farming. It certainly is a form of farming and was incidental to that occupation from the earliest times. The farmer needs to raise animals quite as much as crops of wheat and corn. Some specialize in one branch of the enterprise and others in a different branch, but animal husbandry is as important for the success of farming as the growing of grain, corn and hay.” Id. at 424.

In Weddle v. Parrish, 295 P. 454, 455 (Ore., 1931), it was held that the “management of live stock, such as depasturing and feeding sheep is embraced within the term ‘agriculture’ or ‘farming’.”

In Porter v. Yakima County, 77 Wash. 299, 137 P. 466 (1914), a case involving the imposition of personal property taxes, the Supreme Court of Washington said that, “A tract of land devoted to the breeding, grazing, shearing, and lambing of sheep is a farm as much as a tract that is devoted to the growing of grain or to diversified farming. In short, a tract may be a farm without the aid of a plow.” 137 P. at 467.

In State ex rel. Wahluke Inv. Co. v. Superior Court for Walla Walla Co., 168 Wash. 142, 10 P. 2d 986 (1932), a later Washington case involving the right of a mortgagor to retain possession of land used for “farming purposes” during the redemption period, the court said:

“Some contention is [sic] made in behalf of the investment company rested upon the theory that the statute giving to the purchaser a lien upon ‘the crops raised or harvested’ upon the land for interest on the purchase price, if the owner does not redeem, argues that the words ‘used for farming purposes’ mean only such land as produces growing crops thereon capable of being subjected to such lien. We do not think this suggestion is persuasive of any such limited meaning to be attributed to the words ‘used for farming purposes.’ Those words seem to us to mean stock-raising purposes as well as crop-raising purposes.” 10 P. 2d at 987-88.

In Country Mutual Insurance Company v. Watson, 1 Ill. App. 3d 667, 274 N.E.2d 136 (1971), the court was presented with a situation in which a liability policy defined “business” as “a trade, profession or occupation other than farming” and excluded liability arising out of any business pursuit of the insured; other activities which were “ordinarily incident” to non-business pursuits were covered by the policy. The insured entered into an agreement with the State Department of Family Services in which he agreed, for a fee, to accept certain children for placement on his farm. One of the boys so placed sustained an injury to his eye while cutting string on bales of hay which were to be fed to the cattle on the farm. The insurer denied coverage, claiming that the accident arose out of the business activity of the insured, i.e., that the acceptance of a fee for the placement of the boys constituted a business activity within the meaning of the policy. The court held that the insured was in the course of his non-business pursuit of farming and that the cutting of the string on the bales of hay was an activity “ordinarily incident” to that non-business pursuit. See State Farm Fire & Cas. Co. v. MacDonald, 87 Ill. App. 2d 15, 230 N.E.2d 513 (1967).

Our examination of these authorities and of the facts in this case convinces us that while some of the activities carried on at Bonita Farms might well be characterized as the operation of a business for the breeding, training and selling of horses, a substantial portion of the activities incident to that business should be characterized as farming. As an analogy, we offer the hypothetical situation in which Bonita Farm was being operated for the breeding and sale of cattle. If a bull escaped from a pasture and was involved in a similar accident, could Brethren avoid liability under its policy on the ground that Bonita was not engaged in farming? We think not.

The facts in this case disclose that the brood mare, Sasal, was kept at Bonita Farm for breeding purposes only, that she never raced, nor was she ever in training for racing. Although she was bred in the spring of 1973, she was barren and was therefore kept in a pasture away from the mares in foal. It was from this pasture that she escaped. We agree with Wint, supra, that the grazing activity “can reasonably be interpreted to constitute a farming operation” and is therefore not excluded under the exclusionary clause of the policy. There is no suggestion in this case — as there was in Wint — that the grazing activities at Bonita Farm were a part of providing “grazing for hire.” Sasal belonged to the Bonifaces and her pasturing was, we believe, a farming activity. When we apply the requirement that the ambiguity in this case be resolved against the company which prepared the policy and in favor of the insured, we have no difficulty in reaching the conclusion that the trial court was clearly erroneous in its factual conclusion that this incident was not covered within the meaning of the exclusionary clause. We shall reverse.

(2) and (3)

Two questions raised by the parties remain unanswered by our conclusions on the first issue: First, is Aetna entitled to receive from Brethren one-half of the legal fees and other costs expended by Aetna in defending Boniface when both Aetna and Brethren were obligated to do so and Brethren refused to provide such defense?; and secondly, is Brethren obligated to reimburse Boniface and Aetna for attorneys’ fees and other costs incurred in the declaratory judgment action to determine the dispute between the parties?

Neither of these issues was reached by the trial court because of its determination that Boniface was not covered under Brethren’s policy. We are urged to consider and determine them under Rule 1085, which gives us the discretion to decide issues not decided in the trial court where it is necessary and desirable for the guidance of that court and would avoid the necessity of another appeal. We decline to do so. The record is devoid of any facts from which we could determine what portion of the counsel fees and other costs should be paid by the contending parties. To assess one-half of these costs and expenses without any knowledge as to what they are or as to their reasonableness would be arbitrary and capricious. Further, the record fails to disclose what, if any, expenses Boniface is claiming and whether under the law he is entitled to reimbursement for them. We prefer to wait until the light of sweet reasonableness has been given an opportunity to dispel the darkness of controversy in this matter. We believe that men of good will should be able to resolve the problem without our intervention. If our belief is ill-founded, then we will consider the matter on another day with a proper record before us. Sufficient unto the day is the evil thereof.

Declaratory decree vacated.

Remanded for entry of a decree not inconsistent with this opinion.

Costs to be paid by appellees.

      . Speech “On Agriculture” (January 13,1840).

      . The Compact Edition of the Oxford English Dictionary (1971) gives as its first definition of “farm,” — “A fixed yearly amount whether in money or kind — payable as tax, rent or the like (as opposed to a rent, tax, etc. of variable amount, e.g., one calculated at a certain proportion of the produce)”. We note that it seems clear that the original meaning of the word “farm” was “rent” and by transition, the word came to mean the land out of which the rent flowed. “Rent” is also defined as “lease”. It is not until the fifth notation in the Oxford compendium that we find “farm” defined as “Originally a tract of land held on a lease for the purpose of cultivation; in modern use often applied without respect to the nature of the tenure, sometimes modified by substantive prefix, as dairy-, grass-, poultry-farm.”

      . Random House Dictionary of English Language, Unabridged (1966).

      . Oxford English Dictionary (1971).

      . Id.