author: Menchine, J.,

text:
    ROBERT H. JONES et al. v. WILLIAM R. HARRIS
    [No. 720,
    September Term, 1976.]

      Decided April 11, 1977.

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

      Gerard P. Uehlinger, with whom were Joseph G. Finnerty, Jr., Edward S. Digges, Jr., Francis B. Burch, Jr., Frazer F. Hilder and Piper & Marbury on the brief, for appellants.

      Paul A. Gibbons, with whom were Harry Fox and Fine & Klauber, P.A. on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

William R. Harris (Harris) on January 7, 1976, filed a declaration claiming damages against Robert H. Jones (Jones) and General Motors Corporation (General Motors) for intentional infliction of emotional distress on June 2, 1975. An amended declaration subsequently filed alleged that the intentional infliction of emotional distress had been committed several months prior and subsequent to June 2, 1975.

The case was submitted to a jury in the Superior Court of Baltimore City and ultimately resulted in a verdict in favor of Harris against both Jones and General Motors for $3,500.00 compensatory damages and for $15,000.00 punitive damages.

Jones and General Motors present the following questions on appeal:

“1. Did the trial court err by not granting Appellants’ motion for directed verdict, because the evidence was insufficient to support a cause of action for intentional infliction of emotional distress?
2. Did the trial court err by not granting General Motors’ motion for a directed verdict, because the evidence was insufficient to establish that the alleged conduct of Jones was within the scope of his employment or ratified by General Motors Corporation?
3. Did the trial court err by not granting Appellant’s motion to arrest judgment in these circumstances, because of the irregularity in the rendition and receipt of the jury’s verdicts?
4. Did the trial court err by admitting Appellee’s wife’s testimony, because it was improper and prejudicial in these circumstances?”

Basic to our consideration of the questions presented is the issue whether Maryland will recognize as a valid cause of action the tort of intentional infliction of emotional distress.

The issue is one of first impression in Maryland but has arisen in many other jurisdictions. A majority of the States now favor its recognition as a separate tort after earlier general repudiation of claims for emotional distress except as a parasitic element of damage accompanying a recognized tort.

Nowhere is this changing perspective more apparent than in the writings of the American Law •Institute upon the subject.

1 Restatement of Torts, Ch. 2, § 46 (1934) rejected the separate tort in these unequivocal terms:

“TOPIC 5. The Interest In Freedom From Emotional Distress.
§ 46. Conduct Intended To Cause Emotional Distress Only.
Except as stated in §§21 to 34 and § 48[] conduct which is intended or which though not so intended is likely to cause only a mental or emotional disturbance to another does not subject the actor to liability
(a) for emotional distress resulting therefrom, or
(b) for bodily harm unexpectedly resulting from such disturbance.”

In the 1948 Supplement the diametrically opposite position was taken by the Institute, the following rule being declared:

“TOPIC 5. THE INTEREST IN FREEDOM FROM EMOTIONAL DISTRESS
§ 46. CONDUCT INTENDED TO CAUSE EMOTIONAL DISTRESS ONLY.
One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable
(a) for such emotional distress, and
(b) for bodily harm resulting from it.”

1 Restatement of Torts 2d, Ch. 2, Emotional Distress, Topic 5, § 46 (1965) retreated from its 1948 position, therein stating the rule as follows:

“TOPIC 5. THE INTEREST IN FREEDOM FROM EMOTIONAL DISTRESS
§ 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.” (Emphasis added to indicate substantive change.)

General recognition of the independent tort was asserted in 64 A.L.R.2d 100, wherein it was said at 119-20:

“§ 8. Intentional or reckless act.
... in many of the early cases statements recognizing generally that there can be no recovery for emotional distress alone can be characterized as dicta, and there now appears to be a definite trend toward the recognition of a right to recover for a severe disturbance of mental or emotional tranquillity resulting from an unprivileged act of defendant reasonably calculated to cause grave mental distress to plaintiff and committed intentionally or recklessly.”

Prosser, Law of Torts, Ch. 2 § 12 at 56 (4th Ed. HB, 1971) gives recognition to the independent tort and thus defines its boundaries:

“So far as it is possible to generalize from the cases, the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.”

We have stated that the question whether the new tort is viable in Maryland is one of first impression. There are, however, clear guides to indicate a trend toward recognition of the emerging tort.

In their discourses upon and acceptance of this new tort, two distinguished authors, Prosser and Magruder have cited Great Atl. & Pacific Tea Co. v. Roch, 160 Md. 189, 153 A. 22 (1931), as an early precursor to recognition of intentional infliction of emotional distress as a separate tort.

In Roch, a jury’s verdict for the plaintiff was sustained . when she became a “nervous wreck” following the opening of a package containing a dead rat instead of the loaf of bread she had ordered. It is true that the decision of the Court of Appeals was grounded upon the explanation that the evidence would permit a conclusion by the jury that the agent of the defendant “had carelessly and negligently performed his duty in substituting by mistake the dead rat for the loaf of bread,” 160 Md. at 192, 153 A. at 23, thereby tying “emotional distress,” as a parasitic element, to an action on the case for negligence. Nonetheless, the attached string was quite lightly tied, so that Roch does indeed “pint the people to the goal an’ in the traces lead 'em.”

See also Mahnke v. Moore, 197 Md. 61, 77 A. 2d 923 (1951), wherein damages were allowed for nervous shock without substantial physical impact when a young child was required by her father to witness her mother’s murder and his own suicide. There were in that case also, lightly tied bonds to another tort or torts.

We are persuaded that the new tort, in a proper case, is viable in this State.

The Subject Case as to General Motors

That the motion for directed verdict as to General Motors was improperly denied is very clear. There is not a scintilla of evidence that any conduct of defendant Jones against the plaintiff Harris was within the scope of Jones’ real or apparent authority. Neither does the record show the slightest later ratification of Jones’ actions.

The record shows that Harris filed two grievances against Jones, relative to the latter’s alleged harassment of Harris.

The first (P. Ex. 1A) was filed on June 20, 1975, and read as follows:

“Protest Foreman R. Jones mimicking me and attempting to provoke me. This conduct is unbecoming a member of supervision and I demand higher supervision instruct R. Jones to conduct himself properly at all times in the future.”

That exhibit contained a notation of the following disposition: “The supervisor will conduct himself properly at all times.” This exhibit showed upon its face that the grievance was satisfactorily settled on July 31,1975.

The second (P. Ex. 1C) was filed on August 28, 1975, and read as follows:

“Protest Foreman R. Jones continuously attempting to humiliate me. This member of supervision enters my work area and tells me not to get nervous and walks away. I demand management direct Foreman Jones to conduct himself properly at all times.”

That exhibit contained a notation of the following disposition: “Supervisors will conduct themselves in a manner becoming to supervision. However, this employee was not under the supervision of Foreman Jones when this grievance was written.” This exhibit showed upon its face that the grievance was satisfactorily settled on September 8, 1975.

By Harris’ own admission, the alleged harassment and humiliation by Jones did not extend beyond two months following June 1975.

It is of further significance that Harris did not carry his grievances beyond the initial stage authorized by the employer-union contract, although the union committeeman, testifying in behalf of Harris made crystal clear that an appeal “to a higher step” would be taken,.“If we felt the case warranted it.”

The Subject Case as to Jones

We think the motion for directed verdict as to Jones stands in a different posture and compels full examination of the facts as they relate to the essential elements of the new tort.

The Supreme Court of Virginia in Womack v. Eldridge, 210 S.E.2d 145 (1974), produced an admirable distillate from text writers and decisions to fix with reason, clarity and precision the boundaries of the new tort:

“We adopt the view that a cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer’s conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. Four, the emotional distress was severe.” 210 S.E.2d at 148.

We accept those boundaries of the tort.

THE FACTS

The Conduct of Jones

For about three months prior to June 2, 1975, and about two months after that date, Jones, who was at various times a foreman and supervisor for General Motors, “would come by me and talk like me. In other words he would stutter like [me] two or three times a week.” Harris fixed the time by reference to an occasion when he had approached Jones asking to be transferred to a different department and Jones had responded, “No, you are a troublemaker and get the hell out of here [and] said I should — always will call a committeeman.”

Perhaps because of Harris’ impediment of speech the best description of Jones’ conduct appears in the following testimony of co-worker Heinz DiPitro, called as a witness by Harris.

“Q Now, I want to direct your attention back to late May or June of 1975 and ask you whether or not you were present during a confrontation between Mr. Harris and Mr. Jones?
A Yes, I was.
Q Can you tell us in your own words what happened that day?
A Bill went up to talk to Mr. Jones to get a job in Seat Bay and I walked up to him and he asked him and Jones just smiled at him and he said, you can’t have the job, he said, because you always call the mmittee man. When he said mmittee man he was mimicking Bill about his speech, shaking his head up and down. Like, he don’t bring the word out, and he then told him to get the hell away from there.
Q Now, was he trying to say the word committee man?
A Yes, he was.
Q Can you show the jury how Mr. Jones would enact this thing?
THE COURT: Demonstrate what Jones did, what you saw Jones — Mr. Jones do.
THE WITNESS: When Bill has trouble bringing a word out, he will, like, shake his head up and down, like that (indicating), getting the word out and that’s what Bob Jones did.
Q (By Mr. Gibbons) Had you — did you ever see Mr. Jones mimick Mr. [Harris] on any other occasion?
A Yes, I have.
Q What did he say?
A He’s always saying to Bill, you know, don’t get nervous, and he said you’re no good because you always want the committee man. He always said this to him.
THE COURT: I didn’t hear you, Mr. Witness. Are you saying minni man or committee man? What are you saying.
THE WITNESS: Well, when Bill says committee man it sounds like mittee man. It doesn’t come out all the right way.
THE COURT: What does Mr. Jones say?
THE WITNESS: Mmittee man. He tries to say the same thing that Bill does.
Q (By Mr. Gibbons) In other words, he’s leaving off the c-o?
A Yes, he is.”

The incidents occurred two or three times weekly over a five or six month period in the spring and summer of 1975.

The Preexisting Condition of Harris

His wife of seven years testified that Harris “always had a speech impediment.” She added:

“Q (By Mr. Gibbons) Can you describe his disability at that time?
THE WITNESS: He was sort of, like, in a shell. It took me a while for me to get him to associate with, like, my family and, you know, to go out and, you know, meet friends. But — and then after-wards he, you know, sort of came out of his shell and he still had a hard time talking but he was more or less, you know, calmer. He was more calmer.
Q (By Mr. Gibbons) How long did it take for him to come out of his shell, so to speak?
A Oh, I don’t know exactly. I would say about maybe a year after we were first married.
Q Okay. Now, directing your attention to the Spring of 1975, did you notice anything unusual about Bill during that time of year?
A Well, it wasn’t — I noticed it back in November [1974], I was four months pregnant with my second boy.... and he would come home like late from work and I’d ask him why he was late and he would jump all over me and say, he had a rough day at work. So I just, you know, I took it from that and he never explained anything or nothing else.. .. back in November I had left him for two weeks because his drinking became very heavy and we got to the point where we were at each other’s throats and he threw a meat platter at me and I just, you know, told him when you straighten yourself out and continue to work and go in to work and just, you know, take it and then don’t bring it home and bring it — take it out on me, then, I said, I’ll come back and it was two weeks before my husband and I did reconcile and he said that he still had problems at work, but he would try not to take it out on me and my four-year old.
THE COURT: When was the separation?
THE WITNESS: This was in ’74 and in November.”

The testimony of Harris included the following:

“Q Well, there are a lot of things that bother you that make you nervous, aren’t there?
A Yes, there is.
Q And wasn’t that why you went to see your doctor starting six years ago about this problem?
A (Thereupon, the witness wrote the answer down.) Q Thank you. The answer is because of bosses. Oh, six years ago it was somebody else, some other boss that was giving you a problem?
A I don’t know.
Q Well, six years ago is a long time before you met Mr. Jones, isn’t it?
Yes, it is.” A

The Evidence as to Emotional Distress

Appellee’s description of the results of Jones’ conduct may be summarized as follows: that it caused him to complain four times to his work foreman and to request two hearings before the union representative; that the conduct made him “nervous and felt like going into a hole and hide”; that he had visited Dr. Zullo for medical attention during the period involved, and was given pills for his nerves. He acknowledged that he had been attended by the same doctor for six years with respect to his problem. Dr. Zullo did not testify.

He testified that his home life had been broken up for two weeks, and that his condition had gotten worse during the period complained of. He acknowledged that he had had problems with other supervisors at work and had been “suspended or relieved on maybe 10 or 12 occasions for different things.” He acknowledged sthat on one occasion he had followed another supervisor home on a motorcycle after a dispute and had been disciplined for his conduct in doing so. He acknowledged that there were a lot of tough guys in the plant and there was a lot of roughhousing and calling of names in the plant. At one point in his testimony appellee had stated that no other employee gave him “a hard time about [his] speech impediment.” In later testimony, however, the record showed the following:

“Q So there were other employees down there that do mimick you on occasion, around there?
A Well, there’s — yes, there is, I guess.”

He acknowledged that a bad day at work causes his condition to be a little bit worse.

Appellee’s witness DiPitro testified that after a confrontation with Jones, Harris “would be shaken up. He would be real nervous and walk away.”

The appellee’s wife thus described her husband’s condition in June:

“... then June, June of ’75 my son was christened. We had a large christening party for my son and he got to drinking and I told him, you know, just stop drinking.”

Asked to describe her husband’s condition on the day of trial, she said “very nervous. He can hardly — he doesn’t talk as good as he did when I sort of got him out of his shell ... as compared to when we were first married and I got him to socialize and to, to meet people.” When her attention was directed back to the separation of November 1974, she testified as follows:

“Q All right, can you tell me what his condition was at that time? Describe his condition for the jury.
A I didn’t know — I would not let him come in contact with me or my son.
Q Why not?
A Because I was afraid of him. My doctor had told me to stay away from him. He had given me twenty milligrams of Librium I was to take every day. I was a nervous wreck. I didn’t want to be around him.
Q Now, can you describe for me or the jury his condition in 1975? Can you compare the two?
A Well, in 1973, as like before, we were married, it — see, it was just everything was going along fine. He liked his job, he liked his work, he liked — we just moved into a brand new house, and it was just all right. It was just perfect to me.”

THE LAW APPLIED TO THE FACTS

Tort Elements 1 and 2 (Intentional and Outrageous Actions)

We are persuaded that the evidence was legally sufficient to establish that Jones’ conduct was intentional; was intended to inflict emotional distress; and was outrageous and intolerable in form. The evidence was legally sufficient to establish those elements of the offense.

Tort Elements 3 and U (Severity and Causal Connection of Emotional Distress)

Our examination of the record as a whole persuades us that the evidence, viewed from the standpoint most favorable to the appellee, fails as a matter of law to bring the case within the legal boundaries of the new tort by rea,son of the absence of proof of either such element.

Severity of the Emotional Distress

We think that the record makes plain that the impact of the Jones’ harassment was not shown to have produced “severe emotional distress”; “severe disturbance of mental or emotional tranquility”; or “mental distress of a very serious kind.”

We say this in the light of the circumstances: (1) that the family separation took place prior to the occurrences complained of and (2) that a causal connection between Jones’ conduct and appellee’s actions at the family christening was not shown. All other alleged sequelae of Jones’ conduct amount to no more than generalizations of “nervousness” or “irritation.” Such sequelae, standing alone, are not within the purview of the tort.

Causal Connection

We have heretofore stated that testimony offered on behalf of Harris showed that the family separation was not the product of Jones’ conduct. The testimony of Mrs. Harris, produced by the appellee and by which he is bound, pinpointed that event as having occurred prior to the conduct complained of.

The christening incident also lacked the necessary showing of causal connection. Harris, prior to the inception of the Jones harassment, had conducted himself in a similar manner. Thus, there is nothing more than speculation to connect the christening incident with Jones’ conduct.

Reinforcement for this view appears from the record showing that Harris had received medical treatment related to his “nervous” condition before the events complained of. A single visit to his family doctor, unaccompanied by medical evidence tending to establish that the medical treatment described by Harris flowed as a direct consequence of the Jones activities, makes the connection a matter of the purest conjecture.

We think Jones’ motion for a directed verdict should have been granted.

Our reversal without a new trial obviates the necessity to consider the other contentions of the appellants.

Judgments reversed without a new trial.

Appellee to pay the costs.

      . The declarations included claims for alleged slander but such claims were rejected in the course of trial by the grant of motions for directed verdict in favor of the defendants from which no appeal was taken by Harris.

      . The jury originally rendered a verdict for $2,000.00 compensatory damages against the defendant Jones and for $15,000.00 punitive damages against the defendant General Motors, but was ordered to return to the jury room for further deliberation. The jury thereafter returned the verdict described in the text of this opinion.

      . Immaterial to the subject inquiry.

      . Annotation: Right to recover for emotional disturbance or its physical consequences, in the absence of impact or other actionable wrong.

      . Perhaps the earliest forerunner of the tort was Nickerson v. Hodges, 84 So. 37 (S. Ct. La. 1920) widely known as the “pot of gold” case. The victim of a practical joke obtained damages for emotional distress resulting from the planting of an old copper kettle in an area where plaintiff was digging for “buried treasure” believed by family tradition to have been hidden by an ancestor.

      . Prosser, Law of Torts, Ch. 2, Infliction of- Mental Distress, § 12, footnote 86.

      . Calvert Magruder: Mental Disturbance in Tort, 49 Harv. L. Rev. 1033, 1046, footnote 56 (1936), in the course of a scholarly article documenting the emergence of legal recognition of a new tort.

      . James Russell Lowell, The Bigelow Papers.

      . The local agreement between union and management relating to grievances (D. Ex. 2) included, inter alia, the following procedure:
      “Step 2 — Shop Committee — Management Meeting
      9. Failing satisfactory settlement by Higher Supervision, the grievance may be referred by the District Committeeman to the Shop Committee.”
      There is nothing in the record to indicate that appellee requested that Step 2 be initiated.
      The agreement further provided, inter alia:

      “11. Any grievance not appealed from a decision at one step of this procedure in the plant to the next step within five working days of such decision, shall be considered settled on the basis of the latest decision and not subject to further appeal.”

      . Jones categorically denied the conduct attributed to him by Harris and a witness in his behalf. The recitations of fact contained in this section, however, are drafted to reflect the testimony most favorable to Harris. We are bound to assume their truth. Buchanan v. Galliher and Harless, 11 Md. App. 83, 87, 272 A. 2d 814, 817 (1971), cert. den., 1971.

      . Although Harris indicated that the incident occurred on June 2,1975, he filed, on July 3, 1975, an employee grievance (P. Ex. IP'' with respect to such an incident, charging a violation of. § 63A of the national union-management agreement. That exhibit bore a notation dated July 10, 1975, that the grievance was not satisfactorily settled. A second notation on that exhibit showed that the grievance was satisfactorily settled on July 29, 1975.

      . The wife of appellee, called as a witness in his behalf, made it crystal clear that the separation of husband and wife had occurred months before the commencement of the alleged harassment.

      . The minimum requirement suggested by 1 Restatement of Torts 2d, supra.

      . The minimum requirement suggested by annotation 64 A.L.R.2d 100, supra.

      . The minimum requirement suggested by Prosser, Law of Torts, supra.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    NATHAN M. HARRIS et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
    [No. 723,
    September Term, 1976.]

      Decided April 12, 1977.

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

      Jonathan A. Azrael, with whom were Azrael & Gann on the brief, for appellants.

      JohnN. Spector, with whom were Benjamin L. Brown and William Hughes on the brief, for appellee Mayor and City Council of Baltimore. Mark Poliak, with whom were Kenneth A. Reich and Donald F. Burke on the brief, for other appellees.
   Liss, J.,

delivered the opinion of the Court.

This appeal concerns itself with the hotly contested and long delayed effort of the Mayor and City Council of Baltimore to “rollback” the occupancy of non-conforming multiple family structures which were converted to four or more dwelling units.

The appellants include Nathan Harris and a number of other multiple family dwelling owners and the Property Owners Association of Baltimore, Inc. The appellees, in addition to the City, include a number of intervenors (neighborhood improvement associations and other property owners in the affected areas) who sought and were granted permission to intervene as defendants in the trial court. They are represented by counsel who participated in the preparation and presentation of this case to this Court; their position is essentially the same as that urged by the City.

The appellants filed a bill for declaratory judgment and injunctive relief seeking to prevent the City from enforcing certain rezoning ordinances enacted by the City on the grounds that the ordinances were unconstitutional and void under the Fourteenth Amendment to the Constitution of the United States, and under Article 23 of the Declaration of Rights of the Maryland Constitution in that the ordinances were an arbitrary, unreasonable and capricious exercise of the police powers of the City; and further that the effect of the ordinances amounted to a taking of property without due process of law, and without payment of just compensation. In the alternative, if the ordinances be upheld as constitutional, the appellees requested that the court declare the effective dates of the ordinances to be July 2, 1976 and April 20, 1979, and that the City be enjoined from enforcing the ordinances prior to those dates. The case was heard in the Circuit Court of Baltimore City before Judge Harry A. Cole who issued a well reasoned memorandum opinion in which he declared the ordinance to be constitutional and denied the prayer for injunctive relief. It is from these findings and the order implementing them that this appeal was taken. We agree with the conclusions of the trial court and shall affirm.

There are two questions raised by the appellants for our determination.

I. (a) Is the termination and rollback of non-conforming dwelling units required by the rezoning ordinances, as adopted by the City, a valid exercise of the City’s police power?

(b) Is the rollback provision an unconstitutional taking of property without due process and without just compensation?

II. Are the classifications established by the rollback ordinances reasonable and valid?

I. (a)

In April, 1962, the Mayor and City Council of Baltimore adopted Ordinance No. 1162 known as the rollback ordinance. The purpose of its enactment as stated in new Section 13A to Article 40 of the Baltimore City Code was to prevent the extension, expansion or enlargement of non-conforming uses of land, building or structure and to provide a time limit or tolerance period during which the non-conforming uses were to be extinguished or rolled back.

The rollback provisions were applicable to structures non-conforming as to density limitations in those residential districts zoned R-8, R-9 and R-10. These areas are the densest residential districts permitted in Baltimore City and are concentrated in the inner-city neighborhoods. Such neighborhoods as Bolton Hill, Harlem Park, Locust Point, Federal Hill and Charles Village were affected by the ordinance. It is to be noted that extensive renewal and redevelopment of the areas was contemplated at the time of the adoption of the ordinance and has occurred in the intervening decade and a half.

Ordinance No. 1162 was the response of the Mayor and City Council of Baltimore to a study, review and report of a previously appointed Zoning Commission which had reported that the existing zoning ordinance had permitted large areas of the City to suffer overcrowding, and that “overcrowding of dwellings and excessive population densities are among the prime causes of the deterioration of residential areas and the creation of slums.” The rollback provisions were specifically designed to overcome some of the problems created by the conversion of structures to multi-family use.

Ordinance No. 1162 was amended by the Mayor and City Council on July 2, 1968 by Ordinance No. 153 which extended the tolerance period for the rollback of non-conforming uses from five to eight years.

On April 20, 1971 the City adopted the new comprehensive zoning ordinance, No. 1051, Section 8.0-5e (2), which provided:

“Termination of Non-Complying Dwelling Units. The number of dwelling units in a structure non-complying as to the minimum lot area requirements of Sections 4.8-2, 4.9-2 and 4.10-2 of this ordinance, which structure is located in an R-8, R-9 or R-10 District and has been converted at any time, whether with or without Board authorization, for four or more dwelling units, shall be reduced and comply with the provisions of the aforesaid Sections 4.8-2, 4.9-2 and 4.10-2 not later than eight years after the effective date of this subsection. Provided, further, that when a district is hereafter reclassified as R-8, R-9 or R-10, the number of dwelling units in any structure non-complying as to the minimum lot area requirements of Sections 4.8-2, 4.9-2 and 4.10-2, as hereinbefore provided, shall be reduced and comply with the provisions of Sections 4.8-2, 4.9-2 and 4.10-2 within eight years after the effective date of the reclassification. Notwithstanding the provisions of this subsection, however, the Board may authorize the continuance of a non-complying dwelling unit or units in any such non-complying structure in accordance with the authority and procedures established in Section 8.0-7 of this chapter.”

Section 8.0-7d of the latter ordinance provided:

“Notwithstanding any other provision of this chapter, where any use is required to be terminated under this ordinance and was also required to be terminated or made conforming under any prior ordinance of the Mayor and City Council, the prior ordinance shall govern as to the date of such termination.”

In summary, the original rollback ordinance established minimum lot sizes per dwelling unit and required owners of buildings which had been converted to four or more dwelling units to reduce the number of dwelling units to comply with the established lot size. Buildings which had not been so converted, but which were originally built to contain more than four dwelling units, were not required to comply, and buildings which contained three or fewer dwelling units were likewise exempt, regardless of whether or hot these buildings conformed to the minimum lot size. Adherence tc the rollback provisions was originally required within five years from the effective date, or April 4, 1967. Ordinance No. 153 extended the date of mandatory compliance iron: five to eight years. The City recodified its zoning ordinance (1051) effective April 20, 1971, and the rollback provisions were reenacted in that ordinance.

Enforcement of the rollback provisions by the City was not begun until 1972 after the adoption of the nev comprehensive zoning ordinance. All of the complaining parties have agreed and stipulated that they own properties, which were converted to four or more dwelling units, located in B or C area districts, and that each has been notified by the City that the properties are in violation of Section 8.0-5e (2) of the zoning ordinance, and that the use of one or more dwelling units in each of said properties must be terminated.

The case was submitted to the trial court without “live” testimony and each side presented its case through the affidavits and exhibits of expert witnesses. Both sides waived cross-examination of the experts.

The general rule is that zoning ordinances are entitled to a presumption of constitutional validity and that the burden is upon the party attacking the ordinance to establish clearly its unconstitutionality. Lucky Stores v. Board of Appeals, 270 Md. 513, 312 A. 2d 758 (1970); Gino’s of Maryland, Inc. v. Mayor and City Council of Baltimore, 250 Md. 621, 244 A. 2d 218 (1968); Eutaw Enterprises, Inc. v. Mayor and City Council of Baltimore, 241 Md. 686, 217 A. 2d 348 (1966). To prevail the appellants must demonstrate that there is no “real and substantial relation” between the statute or ordinance and the purposes for which it was enacted. Bowie Inn v. City of Bowie, 274 Md. 230, 335 A. 2d 679 (1975); Maryland Board of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103, 311 A. 2d 242(1973).

The appellants concede the City’s power to require the termination of non-conforming dwelling units for the purposes set out in the rollback ordinance, i.e., to remove the adverse effect of non-conforming uses on the orderly development, maintenance and taxable value of other property in the area and to substitute therefor the benefits from a substantial uniformity of permitted uses. They contend that the ordinances at issue are an unlawful exercise of the City’s zoning (police) power and a violation of due process, in that they constitute a taking of the appellant’s property without just compensation.

The issue of the phaseout of non-conforming uses was first presented to the Court of Appeals in Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A. 2d 363 (1957). In that case the Court had before it an ordinance which required the removal of non-conforming billboards from residential neighborhoods within a five-year period. Judge Hammond (later Chief Judge) in a comprehensively researched opinion discussed the philosophy of the phaseout of non-conforming uses.

“Nonconforming uses have been a problem since the inception of zoning. Originally they were not regarded as serious handicaps to its effective operation; it was felt they would be few and likely to be eliminated by the passage of time and restrictions on their expansion. For these reasons and because it was thought that to require immediate cessation would be harsh and unreasonable, a deprivation of rights in property out of proportion to the public benefits to be obtained and, so, unconstitutional, and finally a red flag to property owners at a time when strong opposition might have jeopardized the chance of any zoning, most, if not all, zoning ordinances provided that lawful uses existing on the effective date of the law could continue although such uses could not thereafter be begun. Nevertheless, the earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned, and the ordinances forbid or limit expansion of nonconforming uses and forfeit the right to them upon abandonment of the use or the destruction of the improvements housing the use.” (citations omitted) 212 Md. at 307.

It is generally held that it is unreasonable and unconstitutional for a zoning law to require immediate cessation of non-conforming uses otherwise lawful. Amereihn v. Kotras, 194 Md. 591, 71 A. 2d 865 (1950); Anne Arundel County v. Snyder, 186 Md. 342, 46 A. 2d 689 (1946); Des Jardin v. Town of Greenfield, 262 Wis. 43, 53 N.W.2d 784 (1952); Standard Oil Co. v. City of Bowling Green, 244 Ky. 362, 50 S.W.2d 960, 86 A.L.R. 648 (1932); Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14 (1931).

The opinion in Grant indicated, at least at that time, that there was some divergence of opinion as to whether a law requiring cessation of non-conforming uses after the expiration of a tolerance or amortization period was constitutional. 212 Md. at 809 n.2. The Maryland courts adopted the view that the elimination of existing non-conforming uses within a reasonable time and with the use of a reasonable amortization scheme provided an equitable means of reconciliation of due process requirements. Grant was followed and reaffirmed by Shifflett v. Baltimore County, 247 Md. 151, 230 A. 2d 310 (1967) (two year phaseout non-conforming junkyards); Eutaw Enterprises, Inc. v. Mayor and City Council of Baltimore, supra (18 months phaseout of non-conforming check cashing services); Gough v. Board of Zoning Appeals, 21 Md. App. 697, 321 A. 2d 315 (1974) (two year phaseout for all non-conforming uses conducted on open land not utilizing permanent buildings or structures). These cases establish the general validity of the amortization method of terminating non-conforming uses in Maryland. We hold that the scheme adopted by the Mayor and City Council for the rollback of non-conforming uses, as provided in the instant ordinances, was a valid exercise of the police power of the City of Baltimore.

I. (b)

We are next required to consider whether the amortization scheme, as adopted in the rollback provisions in these rezoning ordinances, amount to an unconstitutional taking of property without due process and without just compensation.

Appellants urge that Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42 (1958), accurately states the law with respect to amortization wherein the New York Court of Appeals said:

“With regard to prior nonconforming structures, reasonable termination periods based upon the amortized life of the structure are not, in our opinion, unconstitutional. They do not compel the immediate destruction of the improvements, but envision and allow for their normal life without extensive alterations or repairs. Such a regulation is akin to those we have sustained relating to restrictions upon the extension or substantial repair or replacement of prior nonconforming structures.
As to prior nonconforming uses . . . [the] rule is analogous to that with respect to nonconforming structures. In ascertaining the reasonable period during which an owner of property must be allowed to continue a nonconforming use, a balance must be found between social harm and private injury. We cannot say that a legislative body may not in any case, after consideration of the factors involved, conclude that the termination of a use after a period of time sufficient to allow a property owner an opportunity to amortize his investment and make other plans is a valid method of solving the problem.” 4 N.Y.2d at 561-62, 176 N.Y.S.2d at 604-05, 152 N.E.2d at 46.

Where the amortization period is unreasonable, the statutes requiring termination of non-conforming uses have been held unconstitutional. See, e.g., McCaslin v. City of Monterey Park, 163 Cal.App.2d 339, 329 P. 2d 522 (1958); City of LaMesa v. Tweed & Gambrell Planing Mill, 146 Cal. App.2d 762, 304 P. 2d 803 (1956); O’Connor v. City of Moscow, 69 Idaho 37, 202 P. 2d 401 (1949); Standard Oil Co. v. City of Bowling Green, supra. We agree that this correctly states the law. The fallacy in appellants’ argument, however, arises out of their error in assuming which “investment” was to be amortized. Appellants’ experts assumed that their “investment” was the acquisition price of the property and that the proper time frame to be considered should be based on (i) an amortization of the acquisition price over the useful life of the building or (ii) the period of depreciation. The “investment” in these rollback cases is not the entire cost of the structure (since all but the non-conforming uses will continue to have a useful life), but the cost to be amortized is the original cost of converting the excess non-conforming units. Nor is the amortization period intended to provide an owner with an opportunity to depreciate fully the value of his property. See Art Neon Co. v. City and County of Denver, 488 F. 2d 118 (10th Cir. 1973), cert. denied, 417 U. S. 932 (1974). As Judge Prescott of the Court of Appeals said in Stevens v. City of Salisbury, 240 Md. 556, 570-71, 214 A. 2d 775, 783 (1965):

“True amortization provisions almost if not universally call for a termination of nonconforming uses after the lapse of a reasonable, specified period in order that the owner may amortize his investment (the reasonableness of the period depends upon the nature of the non-conforming use, the structures thereon, and the investment therein).. ..”

We are not restricted in our consideration to the reasonableness of the original five year amortization period or its later extension by ordinance to eight years. The passage of time has now extended that period to almost fifteen years since the enactment of the original rollback ordinance. The non-conforming uses undoubtedly existed for a number of years prior to the passage of the ordinance.

Judge Cole in his findings of fact stated:

“The complainants have not persuaded this court that the useful life of their structures is so much longer than 13 years, or that the necessary expenditures that they would make for the normal maintenance of their properties over 13 years is so much less than the cost of alteration to conform to the new minimum lot sizes, that the rollback provisions have made the complainants victims of an unconstitutional confiscation of their property. Indeed, the complainants’ losses are even further reduced by the possibilities of increased tax benefits due to the depreciation on, and business investment in, their properties and even further by the possibility of increased rents collectible on the enlarged apartments in the buildings they own.”

We have before us then ordinances which have already provided for those holders of non-conforming uses in the buildings affected an amortization period of fifteen years. We cannot hold that this period is not constitutionally sufficient to avoid the appellants’ contention that the ordinance amounts to an unlawful taking of property without due process and just compensation.

There is one other saving grace in the ordinance as adopted. The Zoning Board of Baltimore City is authorized by Chapter 8.0-7b (6) of the ordinance to grant the continuance of a non-conforming dwelling unit or units in a non-complying structure located in the areas covered by the rollback provisions subject to specific criteria set out in the ordinance. The stated purpose of this grant of authority is to effect substantial justice not only for the property owner affected by the rollback ordinance but also for the value, utilization, enjoyment and ultimate development of neighboring properties. Cases of individual hardship can be resolved under this section of the zoning ordinance.

In light of the presumption of constitutionality of the ordinances here considered and the conclusions of fact reached by the chancellor we believe the phasing out of the non-conforming uses over the amortization period existing in this case is a constitutional exercise of the police power of the City.

As a corollary to their argument on this issue, the appellants contend that the termination of the non-conforming dwelling units imposed by Section 8.0-5e (2) requires that they destroy, reduce and/or remove their own property at their own expense, without payment or just compensation. They offer in support of this theory Leet v. Montgomery County, 264 Md. 606, 287 A. 2d 491 (1972), and Stevens v. City of Salisbury, supra.

We believe these cases to be factually inapposite. In Salisbury an ordinance was passed which attempted to clear an obstruction of view at intersections by setting up an “amortization” scheme for the phasing out of non-conforming uses. The ordinance required the property owners to grade and remove excess soil and structures above a certain height, regardless of how much grading was required and without regard to whether the excess ground elevation resulted from natural causes or from lawful and permissible manmade changes. The Court held this portion of the ordinance unconstitutional because in its opinion the facts did not create a true case of amortization. No such factual situation arises in this case where the controversy is over the period of amortization rather than the existence of an amortization scheme. Leet is also inapplicable. In that case the Court had before it a local ordinance which attempted to make a property owner liable to remove from his property, at his expense, abandoned motor vehicles left by trespassers without his knowledge or consent. In no way did this case concern itself with non-conforming uses or with the amortization of these uses.

We find no merit in this contention.

II.

Appellants make a final attack on the constitutionality of the ordinances on the ground that the classifications established are arbitrary and unreasonable. We do not agree.

The Maryland Court of Appeals has consistently held that the question of classification is primarily one for the legislature to decide and courts will not intervene unless that classification is clearly unreasonable or arbitrary. McBriety v. Mayor and City Council of Baltimore, 219 Md. 223, 148 A. 2d 408 (1959); Bevard v. Baughman, 167 Md. 55, 173 A. 40 (1934). Judge Cole correctly stated the standards by which a classification is tested to be:

“1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary.
2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality.
3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.
4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” Administrator, Motor Vehicle Administration v. Vogt, 267 Md. 660, 671, 299 A. 2d 1, 7 (1973), quoting Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369 (1911).

In assessing the reasonableness of the ordinance’s distinction between converted and non-converted structures the trial court was persuaded by statement of James Dembeck, one of the City’s witnesses, who in his affidavit stated:

“It was also recognized that the greatest problems were with structures that were converted to and contained four or more dwelling units. Although there were some structures that exceeded density limits and contained three or less dwelling units, it was my feeling and that of the Commission that these particular buildings were not generally overcrowded and that the number of problem-creating buildings in this category was insignificant.”

The rollback ordinance creates a class of buildings; those converted to four or more units, and treats that class uniformly by requiring rollback to the original number of units constructed or the number of units permitted by law, whichever is greater. There is no requirement that the legislative body treat a problem exhaustively and it may legally leave for a later time other problems of density and overcrowding. Dandridge v. Williams, 397 U. S. 471, 90 S. Ct. 1153, 25 L.Ed.2d 491 (1970). As was said in City of New Orleans v. Dukes, 427 U. S. 297, 96 S. Ct. 2513, 2517, 49 L. Ed. 2d 511 (1976):

“Legislatures may implement their program step-by-step ... in such economic areas, adopting regulations that only ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.” (citations omitted)

The purpose of the rollback provision as stated by the Zoning Commission is to alleviate urban blight and to check the proliferation of overcrowded slum conditions in Baltimore City. We believe the classification established by the Mayor and City Council was a reasonable legislative classification enacted in pursuance of the purposes sought to be accomplished. We find the classification violates no fundamental personal rights and is based upon no suspect distinctions such as race, religion or alienage, and that it was a valid exercise of the police power of the Mayor and City Council of Baltimore.

Order affirmed.

Costs to be paid by appellants.

      . Zoning Commission, New Zoning for Baltimore (1962), p. 1.


author: Melvin, J.,

text:
    RICHARD WAYNE PAROJINOG v. STATE OF MARYLAND
    [No. 745,
    September Term, 1976.]

      Decided April 12, 1977.

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

      Frank J. CovieUo, Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Laurence D. Beck, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On 23 May 1975 seven juvenile petitions were filed against the appellant Richard Wayne Parojinog in the District Court in Montgomery County sitting as a juvenile court. At that time appellant was 18 years old, having been born 20 September 1956. The petitions alleged the appellant to be “a delinquent child ... in that he did commit” various acts described in separate counts in each of the petitions. In all, the petitions set forth 18 separate delinquent acts allegedly committed by the appellant between 26 April 1974 and 19 September 1974, at times when he was 17 years old.

On the same date the petitions were filed, 23 May 1975, the State filed a “Petition for Waiver” asking the court to waive its exclusive juvenile jurisdiction over the appellant with respect to each of the alleged delinquent acts. On 24 March 1976, after at least three hearings, the juvenile judge signed an order waiving jurisdiction.

On 13 May 1976 a twenty-eight count indictment against the appellant was filed in the Circuit Court for Montgomery County charging the appellant with committing various crimes when he was 17 years old. It appears that many of the counts in the indictment coincide with counts in the juvenile petitions.

On 23 June 1976, appellant filed a “Motion to Dismiss Indictment” on the grounds of double jeopardy and collateral estoppel. On 12 July 1976, after hearing, the motion was denied by Judge Ralph G. Shure. It is from the denial of the motion to dismiss the indictment that appellant has taken this appeal. He argues here, as he did before Judge Shure, that although the proceedings in the juvenile court were labeled waiver hearings they “amounted to an adjudicatory hearing” and that he “has, in effect, been tried, convicted and punished in the Juvenile Court” for the “same crimes” for which he now stands indicted.

Appellant bases his argument on the holding of the Supreme Court in Breed v. Jones, 421 U. S. 519, 95 S. Ct. 1779 (1975). In that case, the Court held that the prosecution of a juvenile in a criminal court after an adjudicatory proceeding in a juvenile court violated the Double Jeopardy Clause of the Fifth Amendment to the U. S. Constitution.

“We believe it is simply too late in the day to conclude . . . that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years”. 95 S. Ct. at 1785.
“We hold that the prosecution of respondent in Superior Court, after an adjudicatory proceeding in Juvenile Court, violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment”. 95 S. Ct. at 1791.

The State concedes that had there been an adjudicatory hearing in the juvenile court Breed v. Jones would require a dismissal of the indictment, but argues that the record does not show that an adjudicatory hearing was ever held. We agree with the State’s argument. Breed v. Jones is therefore inapposite and appellant’s reliance thereon is misplaced.

Our independent review of the proceedings before the juvenile court as reflected in the record before us convinces us that no adjudicatory hearing was held on the juvenile petitions; that appellant was not “put in jeopardy” in those proceedings because their object was not “to determine whether [appellant] has committed acts that violate a criminal law”, Breed v. Jones, supra, but rather their object was to determine the ultimate issue raised by the State’s “Petition for Waiver”. That ultimate issue was the fitness of the appellant for juvenile rehabilitative measures giving due consideration to the safety of the public. In Re Flowers, 13 Md. App. 414, 283 A. 2d 430 (1971).

Appellant concedes, as we have indicated, that the purpose of the juvenile proceedings was to determine the waiver question. He further concedes that no adjudication of delinquency was made by the juvenile judge. He further concedes that the waiver order is valid on its face and that he “is not attempting to go behind the waiver order of the Juvenile Court but is simply trying to establish that under the unusual circumstances surrounding the Juvenile Court proceedings, that an adjudicatory hearing was held at which he was punished, thereby precluding the State from trying him once again at the Circuit Court level”.

Following the filing of the waiver petition, the waiver hearing in the juvenile court began on 30 July 1975. At that hearing, the judge heard testimony concerning the nature of the alleged delinquent acts charged and the appellant’s involvement. The matter was continued until 10 September 1975 so that the judge could be furnished with a complete report on the appellant from the Department of Juvenile Services as well as an evaluation from the Maryland Children’s Center. The judge made it clear that his purpose at this point was not treatment but to obtain “one package with as much information as possible to determine whether or not the Court waives its jurisdiction”. (Emphasis added). He particularly wanted to know “what if any services are available within the juvenile system” for the appellant.

When the proceedings resumed on 10 September 1975, the judge noted at the outset that the case had been continued until that date for “final determination in waiver”. The judge then noted that he had received the “staffing analysis” and recommendations from the Maryland Children’s Center as well as the reports and recommendations of the Department of Juvenile Services. Both the prosecuting attorney and' .counsel for the appellant presented oral arguments on the question of waiver. It is evident that the judge was concerned over the effect of the provisions of Code (1974, 1975 Cum. Supp.), § 3-807 (b) of the Courts and Judicial Proceedings Article. That section of our juvenile law became effective 1 July 1975 and provided:

“The [juvenile] court has exclusive original jurisdiction, but only for purposes of waiving it, over an adult who is alleged to have committed a delinquent act while a child.”

Because appellant was an “adult” charged with delinquent acts'allegedly committed while a “child”, the judge felt that if he did not waive jurisdiction the petitions would have to be dismissed. On the other hand, if he waived jurisdiction, he would be doing so in the face of recommendations of the Department of Juvenile Services that a treatment program be instituted under that department’s jurisdiction. He resolved the dilemma temporarily by “continuing the proceedings without a determination of waiver” for a period of six months, during which time appellant was “directed .. . to undergo a voluntary program of daily, full-time outpatient psychological and psychiatric therapy at a local hospital under the direction of the Department of Juvenile Services”. He also “directed that the appellant make restitution in the sum of ... $3,562.34 to the various persons who were victims of the crimes with which the appellant was charged in the Juvenile Court”. We note, however, that the order signed by the judge following the 10 September hearing made no mention of restitution. The order reads as follows:

“The above-entitled proceedings having been presented to the Court this 10th day of September, 1975, for the purpose of continuation of waiver, and it being determined by the Court that the best interests and welfare of Richard Wayne Parojinog, child, would be served by continuing the proceedings without a determination of waiver, and it being further determined that Richard Wayne Parojinog, child, be continued under a program of community supervision, It Is Thereupon;
ORDERED this 10th day of September, A.D., 1975, that Richard Wayne Parojinog, child, be continued under the jurisdiction of the Court in the care and custody of his parents under a program of community supervision to be provided by the Juvenile Services Administration, and It Is Further;
ORDERED that these proceedings be continued pending further hearing to be held on the 10th day of March, A.D., 1976, and It Is Further;
ORDERED that these proceedings be continued pending further reports and recommendations and further Orders of the Court.” (Emphasis added.)

On 25 September 1975, however, a “Consent Agreement” was filed in the proceedings. By this document, signed by appellant and an assistant prosecutor, appellant “agree[d] to pay the above sums of money [totalling $3,562.34] to the above individuals [victims of the delinquent acts] in whatever amounts I can depending upon my financial ability to do so”.

On 10 March 1976, another hearing was held, following which a waiver order was signed by the judge.

The appellant does not argue the propriety of the 10 September order or the judge’s “directions” in connection therewith — only that he was thereby “punished” for the acts with which he was charged in the juvenile petitions and that because “punishment” is only permitted after an adjudicatory hearing, the proceedings must be regarded as adjudicatory in nature. The State argues that in ordering restitution and therapy, the judge was not imposing punishment but was merely acting pursuant to § 3-827 of the Courts Article which provides that “the court may make an appropriate order directing, restraining, or otherwise controlling the conduct of a person who is properly before the court, if ... the court finds that the conduct . .. will assist in the rehabilitation of or is necessary for the welfare of the child . ..”.

• In our view, for the purposes of this appeal, it is unnecessary to determine whether the court’s action of 10 September resulted in “punishment”, for even if it did, it does not follow that the preceding hearings were adjudicatory hearings. Clearly they were not. The fact that “punishment” may have followed the hearings does not convert them into adjudicatory proceedings. Absent an adjudicatory hearing “whose object [was] to determine whether [appellant] has committed acts that violate a criminal law” the appellant was not put in jeopardy so as to bar his trial on the pending indictments on the ground of double jeopardy. In Price v. Georgia, 398 U. S. 323, 326 (1970), the Supreme Court said:

“In United States v. Ball, 163 U.S. 662, 669 (1896), this Court observed: ‘The Constitution of the United States, in the Fifth Amendment, declares, ‘nor shall any person be subject [for the same offense] to be twice put in jeopardy of life or limb’. The prohibition is not against being twice punished, but against being twice put in jeopardy....’ (Emphasis added.) The ‘twice put in jeopardy’ language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried”. (Emphasis added.)

Because the appellant has not been “initially tried” on the pending charges, the Double Jeopardy Clause affords him no grounds for dismissal of the indictment. If and when he is convicted of those charges will be time enough to consider the legal effect, if any, of the “punishment” he claims to have already received upon any sentence that may result. See, North Carolina v. Pearce, 395 U. S. 711 (1969).

Order appealed from affirmed.

Costs to be paid by appellant.

      . i.e. acts which would be a crime if committed by a person 18 years old or older. Code (1974), Courts Art. 3-801 (j), in effect at time petitions were filed. None of the acts were such as to deprive the court of its original exclusive juvenile jurisdiction.

      . We observe, however, that the indictment contains several other counts charging conspiracy, common law burglary, various forms of statutory burglary, and violations of Code Art. 27, § 139A (unlawful manufacture, assembly, use or possession of a “Molotov cocktail”), whereas it does not appear that any of the counts in the juvenile petitions alleged any acts which, if committed by an adult, would constitute those specific crimes. For the possible effect of trying the appellant for these crimes in a criminal court, absent a waiver order with respect to them, see In re Ingram, 15 Md. App. 356, 291 A. 2d 78 (1972) and Franklin v. State, 264 Md. 62, 285 A. 2d 616. That question, however, is not before us in this appeal.

      . By Chapter 463, Acts 1976, effective 1 July 1976, § 3-807 (b) was amended by substituting “a person 21 years of age or older” for “an adult”.

      . See, In Re Appeals Nos. 1022 and 1081, 278 Md. 174, (1976).

      . The parties have stipulated that “the waiver hearing of March 10,1976 ... is not applicable to the case presently before the Court of Special Appeals”; therefore, there is no transcript of that hearing in the record before us, nor does the record contain the waiver order itself.


author: Moylan, J.,

text:
    TERETHA McNEIL BAKER v. STATE OF MARYLAND
    [No. 785,
    September Term, 1976.]

      Decided April 12, 1977.

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

      LeeN. Sachs, Assigned Public Defender, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Timothy Doory, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This appeal addresses the intriguing question of what latitude a judge should permit counsel when a witness takes the stand and says, “I don’t remember.” What are the available keys that may unlock the testimonial treasure vaults of the subconscious? What are the brush strokes that may be employed “to retouch the fading daguerreotype of memory?” The subject is that of Present Recollection Revived.

The appellant, Teretha McNeil Baker, was convicted by a Baltimore City jury of both murder in the first degree and robbery. Although she raises two appellate contentions, the only one which we find it necessary to consider is her claim that the trial judge erroneously refused her the opportunity to refresh the present recollection of a police witness by showing him a report written by a fellow officer.

The ultimate source of most of the evidence implicating the appellant was the robbery and murder victim himself, Gaither Martin, a now-dead declarant who spoke to the jury through the hearsay conduit of Officer Bolton. When Officer Bolton arrived at the crime scene, the victim told him that he had “picked these three ladies up ... at the New Deal Bar”; that when he took them to their stated destination, a man walked up to the car and pulled him out; that “the other three got out and proceeded to kick him and beat him.” It was the assertion made by the victim to the officer that established that his money, wallet and keys had been taken. The critical impasse, for present purposes, occurred when the officer was questioned, on cross-examination, about what happened en route to the hospital. The officer had received a call from Officer Hucke, of the Western District, apparently to the effect that a suspect had been picked up. Before proceeding to the hospital, Officer Bolton took the victim to the place where Officer Hucke was holding the appellant. The appellant, as part of this cross-examination, sought to elicit from the officer the fact that the crime victim confronted the appellant and stated that the appellant was not one of those persons who had attacked and robbed him. To stimulate the present memory of Officer Bolton, appellant’s counsel attempted to show him the police report relating to that confrontation and prepared by Officer Hucke.

The record establishes loudly and clearly that appellant’s counsel sought to use the report primarily to refresh the recollection of Officer Bolton and that he was consistently and effectively thwarted in that attempt:

“BY MR. HARLAN:
Q. Do you have the report filed by Officer Hucke and Officer Saclolo or Saclolo?
A. Right, I have copies.
Q. Okay.
MR. DOORY: I would object to that, Your Honor.
THE COURT: I will sustain the objection. This is not his report.
BY MR. HARLAN:
Q. Can you look at this report and refresh your recollection as to whether or not you ever had the victim in a confrontation with Mrs. Baker?
MR. DOORY: Objection, Your Honor.
MR. HARLAN: He can refresh —
THE COURT: Well, he can refresh his recollection as to his personal knowledge. That’s all right.
A. That is what I am saying, I don’t know who it was that we confronted really.
BY MR. HARLAN:
Q. All right. Would you consult your report and maybe it will refresh your recollection.
THE COURT: I think the response is he doesn’t ■ know who —
MR. HARLAN: He can refresh his recollection if he looks at the report.
THE COURT: He can’t refresh his recollection from someone else’s report, Mr. Harlan.
MR. HARLAN: I would object, Your Honor. Absolutely he can.
THE COURT: You might object, but —
MR. HARLAN: You are not going to permit the officer to refresh his recollection from the police report?
THE COURT: No. It is not his report.
MR. HARLAN: Your Honor, I think I am absolutely within my rights to have a police officer read a report which mentions his name in it to see if it refreshes his recollection. If it doesn’t refresh his recollection, then fine.
THE COURT: Well, he did that.
MR. HARLAN: You have not afforded him the opportunity to do that yet, Your Honor.
THE COURT: He says he does not know who it was before. So, he can’t refresh his recollection if he does not know simply because someone else put some name in there.
MR. HARLAN: He has to read it to see if it refreshes his recollection, Your Honor.
THE COURT: We are reading from a report made by two other officers which is not the personal knowledge of this officer.
MR. HARLAN: I don’t want him to read from that report. I want him to read it and see if it refreshes his recollection.”

On so critical an issue as possible exculpation from the very lips of the crime victim, appellant was entitled to try to refresh the memory of the key police witness. She was erroneously and prejudicially denied that opportunity. The reason for the error is transparent. Because they both arise from the common seedbed of failed memory and because of their hauntingly parallel verbal rhythms and grammatical structures, there is a beguiling temptation to overanalogize Present Recollection Revived and Past Recollection Recorded. It is a temptation, however, that must be resisted. The trial judge in this case erroneously measured the legitimacy of the effort to revive present recollection against the more rigorous standards for the admissibility of a recordation of past memory.

It is, of course, hornbook law that when a party seeks to introduce a record of past recollection, he must establish 1) that the record was made by or adopted by the witness at a time when the witness did have a recollection of the event and 2) that the witness can presently vouch for the fact that when the record was made or adopted by him, he knew that it was accurate. Hall v. State, 223 Md. 158, 162 A. 2d 751; Edwards and Person v. State, 31 Md. App. 562, 358 A. 2d 590; Ringgold v. State, 34 Md. App. 286, 367 A. 2d 35. McCormick, Law of Evidence (1st Ed., 1954), describes the criteria, at 15:

“Appropriate safeguarding rules have been developed for this latter kind of memoranda, requiring that they must have been written by the witness or examined and found correct by him, and that they must have been prepared so promptly after the events recorded that these must have been fresh in the mind of the witness when the record was made or examined and verified by him. We have treated such memoranda separately, as an exception to the hearsay rule.”

Had the appellant herein sought to offer the police report as a record, of past recollection on the part of Officer Bolton, it is elementary that she would have had to show, inter alia, that the report had either been prepared by Officer Bolton himself or had been read by him and that he can now say that at that time he knew it was correct. Absent such a showing, the trial judge would have been correct in declining to receive it in evidence.

When dealing with an instance of Past Recollection Recorded, the reason for the rigorous standards of admissibility is quite clear. Those standards exist to test the competence of the report or document in question. Since the piece of paper itself, in effect, speaks to the jury, the piece of paper must pass muster in terms of its evidentiary competence.

Not so with Present Recollection Revived! By marked contrast to Past Recollection Recorded, no such testimonial competence is demanded of a mere stimulus to present recollection, for the stimulus itself is never evidence. Notwithstanding the surface similarity between the two phenomena, the difference between them could not be more basic. It is the difference between evidence and non- evidence. Of such mere stimuli or memory-prods, McCormick says, at 18, “[T]he cardinal rule is that they are not evidence, but only aids in the giving of evidence.” When we are dealing with an instance of Present Recollection Revived, the only source of evidence is the testimony of the witness himself. The stimulus may have jogged the witness’s dormant memory, but the stimulus itself is not received in evidence. Dean McCormick makes it clear that even when the stimulus is a writing, when the witness “speaks from a memory thus revived, his testimony is what he says, not the writing.” Id., at 15. McCormick describes the psychological phenomenon in the following terms:

“It is abundantly clear from every-day observation that the latent memory of an experience may be revived by an image seen, or a statement read or heard. It is a part of the group of phenomena which the classical psychologists have called the law of association. The recall of any part of a past experience tends to bring with it the other parts that were in the same field of awareness, and a new experience tends to stimulate the recall of other like experiences.” Id., at 14.

The psychological community is in full agreement with the legal community in assessing the mental phenomenon. See Cairn, Law and the Social Sciences 200 (1935):

“In permitting a witness to refresh his recollection by consulting a memorandum, the courts are in accord with present psychological knowledge. A distinction is drawn, in the analysis of the memory process, between recall, which is the reproduction of what has been learned, and recognition, which is recall with a time-factor added, or an awareness that the recall relates to past experience. It is with recognition that the law is principally concerned in permitting a witness to revive his recollection. The psychological evidence is clear that in thus allowing to be brought to mind what has been forgotten, the law is following sound psychological procedure.”

And see Hutchins and Slesinger, Some Observations on the Law of Evidence Memory, 41 Harv. L. Rev. 860 (1928).

The catalytic agent or memory stimulator is put aside, once it has worked its psychological magic, and the witness then testifies on the basis of the now-refreshed memory. The opposing party, of course, has the right to inspect the memory aid, be it a writing or otherwise, and even to show it to the jury. This examination, however, is not for the purpose of testing the competence of the memory aid (for competence is immaterial where the thing in question is not evidence) but only to test whether the witness’s memory has in truth been refreshed. As McCormick warns, “But the witness must swear that he is genuinely refreshed. . . . And he cannot be allowed to read the writing in the guise of refreshment, as a cloak for getting in evidence an inadmissible document.” One of the most thorough reviews of this aspect of evidence law is found in United States v. Riccardi, 174 F. 2d 883 (3rd Cir., 1949), where the court said at 888:

“In the case of present recollection revived, the witness, by hypothesis, relates his present recollection, and under oath and subject to cross-examination asserts that it is true; his capacities for memory and perception may be attacked and tested; his determination to tell the truth investigated and revealed; protestations of lack of memory, which escape criticism and indeed constitute a refuge in the situation of past recollection recorded, merely undermine the probative worth of his testimony .”

In solid accord with both the psychological sciences and the general common law of evidence, Maryland has long established it that even when a writing of some sort is the implement used to stir the embers of cooling memory, the writing need not be that of the forgetful witness himself, need not have been adopted by him, need not have been made contemporaneously with or shortly after the incident in question, and need not even be necessarily accurate. The competence of the writing is not in issue for the writing is not offered as evidence but is only used as a memory aid. Adkins v. Hastings, 138 Md. 454, 114 A. 288 (book entries recording sale of goods as a memory aid); McGuire v. State, 200 Md. 601, 92 A. 2d 582 (stenographic transcript of tape recording of telephone conversations); Bulluck v. State, 219 Md. 67, 148 A. 2d 433 (police officer’s notes of statement given by defendant); Gault v. State, 231 Md. 78, 188 A. 2d 539 (unsigned transcript of oral confession); Miller v. State, 251 Md. 362, 247 A. 2d 530, judgment vacated in part, 408 U. S. 934, 92 S. Ct. 2851, 33 L.Ed.2d 747 (typed but unsigned statement of defendant given to police used to refresh officer’s recollection); Scott v. State, 1 Md. App. 481, 231 A. 2d 728 (memorandum of sale); Bull v. Schuberth, 2 Md. 38 (newspaper); Hubbard v. State, 2 Md. App. 364, 234 A. 2d 775 (statement of State’s witness given to police); Askins v. State, 13 Md. App. 702, 284 A. 2d 626 (State’s witness permitted to refresh memory from memorandum of statement he had given to police); Holloway v. State, 26 Md. App. 382, 339 A. 2d 319 (police report written by another officer).

When the writing in question is to be utilized simply “to awaken a slumbering recollection of an event” in the mind of the witness, the writing may be a memorandum made by the witness himself, 1) even if it was not made immediately after the event, 2) even if it was not made of firsthand knowledge and 3) even if the witness cannot now vouch for the fact that it was accurate when made. It may be a memorandum made by one other than the witness, even if never before read by the witness or vouched- for by him. It may be an Associated Press account. It may be a highly selective version of the incident at the hands of a Hemingway or an Eliot. All that is required is that it ignite the flash of accurate recall — that it accomplish the revival which is sought.

McCormick wrote to just such effect:

“[I]t is probable that most courts today when faced with the clear distinction between the two uses of the memoranda, will adhere to the ‘classical’ view that any memorandum or other object may be used as a stimulus to present memory, without restriction by rule as to authorship, guaranty of correctness, or time of making.”

The Texas dean is in good company, for no less eminent an authority than Lord Ellenborough said in Henry v. Lee, 2 Chitty 124, 125 (1810):

“If upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum is not written by himself, for it is not the memorandum that is the evidence but the recollection of the witness.”

Not only may the writing to be used as a memory aid fall short of the rigorous standards of competence required of a record of past recollection, the memory aid itself need not even be a writing. What may it be? It may be anything. It may be a line from Kipling or the dolorous refrain of “The Tennessee Waltz”; a whiff of hickory smoke; the running of the fingers across a swatch of corduroy; the sweet carbonation of a chocolate soda; the sight of a faded snapshot in a long-neglected album. All that is required is that it may trigger the Proustian moment. It may be anything which produces the desired testimonial prelude, “It all comes back to me now.”

Of just such possibilities did Learned Hand speak in United States v. Rappy, 157 F. 2d 964, 967 (2d Cir. 1946):

“Anything may in fact revive a memory: a song, a scent, a photograph, an allusion, even a past statement known to be false.”

The United States Court, of Appeals for the Ninth Circuit addressed the same issue in Jewett v. United States, 15 F. 2d 955 (1926), and concluded, at 956:

“[I]t is quite immaterial by what means the memory is quickened; it may be a song, or a face, or a newspaper item, or a writing of some character. It is sufficient that by some material operation, however mysterious, the memory is stimulated to recall the event, for when so set in motion it functions quite independently of the actuating cause.”

Jerome Frank in Fanelli v. United States Gypsum Co., 141 F. 2d 216, 217 (2d Cir. 1944), put it in these terms:

“Common experience, the work of Proust and other keenly observant literary men, and recondite psychological research, all teach us that memory of things long past can be accurately restored in all sorts of ways. The creaking of a hinge, the whistling of a tune, the smell of seaweed, the sight of an old photograph, the taste of nutmeg, the touch of a piece of canvas, may bring vividly to the foreground [of] consciousness the recollection of events that happened years ago and which would otherwise have been forgotten. . . . The memory-prodder may itself lack meaning to other persons as a symbol of the past event, as everyone knows who has ever used a knot in his handkerchief as a reminder. Since the workings of the human memory still remain a major mystery after centuries of study, courts should hesitate before they glibly contrive dogmatic rules concerning the reliability of the ways of provoking it.”

Although the use of a memorandum of some sort will continue quantitatively to dominate the field of refreshing recollection, we are better able to grasp the process conceptually if we appreciate that the use of a memorandum as a memory aid is not a legal phenomenon unto itself but only an instance of a far broader phenomenon. In a more conventional mode, the process might proceed, “Your Honor, I am about to show the witness a written report, ask him to read it and then inquire if he can now testify from his own memory thus refreshed.” In a far less conventional mode, the process could just as well proceed, “Your Honor, I am pleased to present to the court Miss Rosa Ponselle who will now sing ‘Celeste Aida’ for the witness, for that is what was playing on the night the burglar came through the window.’' Whether by conventional or unconventional means, precisely the same end is sought. One is looking for the effective elixir to revitalize dimming memory and make it live again in the service of the search for truth.

Even in the more conventional mode, it is quite clear that in this case the appropriate effort of the appellant to jog the arguably dormant memory of the key police witness on a vital issue was unduly and prejudicially restricted.

Judgments reversed; case remanded for a new trial; costs to be paid by Mayor and City Council of Baltimore.

      . Gardner, The Perception and Memory of Witnesses, 18 Cornell L. Q. 390, 401 (1933).

      . Frequently and alternatively referred to as Present Recollection Refreshed.

      . The exception to the Hearsay Rule urged by the State and utilized by the court to make the out-of-court assertion admissible was the “excited utterance” exception and not the “dying declaration” exception. We are not here considering the admissibility of this hearsay, but are rather assuming it to have been admissible.

      . All of the tests for such evidentiary competence for a record of past recollection are fully set out and discussed in 3 Wigmore on Evidence (Chadbourn Revision, 1970), Ch. 28, Topic V “Testimonial Recollection,” §§ 734-755 “Past Recollection Recorded, pp, 77-125; McCormick, Law of Evidence (2nd Ed., 1972), Ch. 30 “Records of Past Recollection,” pp. 712-716.
      It is to be noted, as Professor Chadbourn noted in his 1970 revision of 3 Wigmore on Evidence, § 738, n. 5 at 93, Maryland is in the minority position (preferred, however, by Wigmore) that where a proper foundation is laid, a past recollection recorded is admissible without regard to the state of declarant’s recollection at the time of trial. Hall v. State, 223 Md. 158, 176, 162 A. 2d 751; Edwards and Person v. State, 31 Md. App. 562, 568, 358 A. 2d 590.

      . "Under tne guidance of Wigmore, we now recognize this as quite a different process. In the one instance, the witness stakes his oath on his present _ memory; in the other, upon his written recital of things remembered in the past.” McCormick, Law of Evidence (1st Ed., 1954), p. 15.

      . McCormick, Law of Evidence (2nd Ed., 1972), 19, n. 66.

      . To the same effect, see Morgan, The Relation between Hearsay and Preserved Memory, 40 Harv. L. Rev. 712, 717-718 (1927):
      “[W]here the witness, by some stimulus, be it memorandum or other device, has his recollection so revived as to be able to testify entirely from present memory . . . the memory of the witness is actually refreshed .... He is not asking the tribunal to believe it because he stated it on a former occasion, but because he is now relating it under oath and subject to cross-examination.”

      . Jewett v. United States, 15 F. 2d 955, 956 (9th Cir., 1926):
      “It is one thing to awaken a slumbering recollection of an event, but quite another to use a memorandum of ¿ recollection, fresh when jt was correctly recorded, but presently beyond the power of the witness so to restore that it will exist apart from the record.”

      . Law of Evidence (1st Ed., 1954), 16.

      . Limited only, in the wise discretion of the trial judge, by such questions as time investment, logistics and a sense of courtroom decorum or taste.

      . Marcel Proust, in his monumental epic In Remembrance of Things Past, sat, as a middle-aged man, sipping a cup of lime-flavored tea and eating a madeleine, a small French pastry. Through both media, two long-forgotten tastes from childhood were reawakened. By association, long forgotten memories from the same period of childhood came welling and surging back. Once those floodgates of recall were opened, seven volumes followed.

      . Generally speaking, the process of refurbishing a witness’s memory will take place as a part of astute counsel’s trial preparation. It is only when memory, through courtroom fear or otherwise, unexpectedly bogs down on the witness stand (or when the witness whose memory needs refreshing is one other than counsel’s own) that the courtroom becomes the arena for the refurbishing. McCormick, Law of Evidence (2nd Ed., 1972), points out, at 14-15:
      “As we have seen, the interviewing of witnesses by counsel who will examine them in court is a necessary step in preparing for trial. It is at this stage that the memory of the witness can best be refreshed about the facts of the ease, by giving him the opportunity to read his own written statements previously made, or the letters, maps, or other documents in the case. It is only when this review of the data is insufficient to enable the witness to recall the facts while testifying that refreshing his memory on the stand is advisable. If it is matter which a jury would suppose he should remember unaided, the use of a crutch lessens their confidence in the testimony.”


text:
    VERNON ANDREW MULLINS v. STATE OF MARYLAND
    [No. 789,
    September Term, 1976.]

      Decided April 13, 1977.

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

      John W. Sause, Jr., District Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Kathleen Sweeney, Assistant Attorney General, with whom were Fnmcis B. Burch, Attorney General, Arrie W. Davis, Assistant Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County, and Paul S. Podolak, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Vernon Andrew Mullins, was convicted by a Cecil County jury, presided over by Judge J. Albert Roney, Jr., of receiving stolen truck tires. We need concern ourselves only with his contention that the stolen truck tires were the fruit of an unconstitutional search and seizure and should have been excluded from evidence.

The appellant was arrested warrantlessly on October 22, 1975. The stolen truck tires were recovered from the van in which the appellant had been riding. The appellant timely sought and received a pretrial hearing on his motion to suppress the evidence. He asserts error in the denial of that motion.

It is undisputed that the van in which the tires were found was searched warrantlessly. It is undisputed that the search of the van after its two passengers had been removed from it, after it had been locked, and after it was subsequently towed to a police garage cannot be justified upon any theory of warrantless search incident to lawful arrest under Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969). It is clear to us, upon our own independent, reflective, constitutional judgment that the warrantless search cannot be justified under the Carroll Doctrine because of the absence of probable cause to believe that the van contained evidence of crime. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). The hearing judge rested his ruling essentially upon his finding that the police were conducting a routine inventory of the van’s contents after having lawfully taken it into their caretaking custody. South Dakota v. Opperman, 428 U. S. 364, 96 S. Ct. 3092, 49 L.Ed.2d 1000 (1976).

It is unnecessary for us to address the troublesome question, on the facts of this case, of whether the police were not bent upon a criminal investigation rather than upon an innocuous and non-criminally oriented listing of chattels, because the State cannot surmount its initial hurdle of showing that it lawfully took control of the vehicle in the first instance.

The van was stopped on a small side road just off a State highway in Cecil County. It was occupied by the appellant, as a passenger, and by the driver, Charles Edward Tackett. Mr. Tackett was the nephew of the appellant. Mr. Tackett was also a duly authorized driver in lawful possession of the van. The indispensable predicate for the taking of the van into caretaking custody by the police was the incapacity of either the appellant or Mr. Tackett lawfully to take the van and go upon his way. With no other incapacities remotely applicable, the only incapacity here pertinent would be the lawful arrest of both of those persons whose rightful and appropriate custody would have prevailed over that of the police.

The primary police focus was upon the appellant and not upon Mr. Tackett. Mr. Tackett’s only arguable guilt of any sort arose out of his association with the appellant. The appellant, in turn, was not wanted for any crime perpetrated against the laws of this sovereignty. The police theory for their warrantless arrest of the appellant is that he was a known fugitive from Delaware justice. The predicate for that theory was exceedingly skimpy. Most of the evidence proffered by the State at the suppression hearing has to be factored out because of its after-the-fact character. The State boldly asserted that it arrested the appellant on a fugitive warrant issued by the District Court of Maryland based upon a Delaware warrant, but it developed that that warrant was issued subsequent to the warrantless arrest upon the highway. At another point, the State referred to “roughly 30 plus counts of felonies involving auto theft or related counts,” but it developed that these warrants “were sent out under date of October 29, 1975,” seven days after the warrantless arrest. When all of the after-the-fact information was factored out, the Maryland intelligence of the appellant’s Delaware transgressions boiled down to a single item of information:

“Q. I believe one warrant was, and correct me if I am wrong, one warrant was issued on the 12th of November 1974 for auto theft, is that correct?
A. That is the first warrant, yes.”

We are left with the single fact that a Delaware warrant was issued for the crime of auto theft eleven months before the appellant was arrested warrantlessly by Maryland police. There is no indication that Delaware had ever declared the appellant to be a fugitive or sought his return as one who had fled that jurisdiction. There is no indication that the provisions of the Federal Fugitive Felon Act were ever invoked. Indeed, there is no indication that the November, 1974, auto theft was even a felony. We notice judicially 11 Delaware Code § 841, which makes the theft of goods worth $100 or more a felony but the theft of goods of the value of less than $100 a misdemeanor. In any event, the Maryland police appear to have been without authority to arrest the appellant. Article 27, § 594B. The only arguable basis for Maryland to come to the assistance of the law enforcement arm of Delaware would be through the extradition treaty between the two sovereignties. Pursuant to the Uniform Criminal Extradition Act, codified as Article 41, § 16-43, the Governor of Delaware had never requested Maryland to render up the appellant. The only arguable basis for the Maryland arrest would be under § 28 “Arrest prior to requisition.” That section, however, limits the power of arrest pending requisition to situations where a warrant is issued in this State upon “the oath of any credible person” charging that the wanted subject has committed crime in another state and has fled from justice. No such warrant was here issued by anyone. Section 14 of the Uniform Criminal Extradition Act does, to be sure, provide for certain warrantless arrests, but that provision of the Uniform Criminal Extradition Act was not adopted in Maryland.

At the outset of the exclusionary hearing, however, the appellant did stipulate that his own arrest was lawful. Notwithstanding our feeling that he had strong grounds to challenge that arrest, we will not look behind that stipulation. Significantly, however, the stipulation did not go to the legality of the arrest of Mr. Tackett, to which we now turn. The circumstances surrounding the appellant’s status may not, by virtue of the stipulation, be able to influence our holding with respect to his own arrest but they do bear directly upon the issue of Mr. Tackett’s arrest.

Mr. Tackett’s arrest falls, both upon the law and upon the facts. The basis for Mr. Tackett’s warrantless arrest was made very clear:

“Q. And Tackett was arrested because of the facts that you have related and made up a probable cause to believe that Tackett knowingly was harboring the Accused, Mullins?
A. That is right.”

Even assuming that harboring is some sort of a crime, we cannot, upon our own independent, reflective, constitutional judgment, conclude that there was probable cause to believe that Mr. Tackett was “harboring.” The State attempted to show that Mr. Tackett was present in Delaware when a search and seizure warrant was executed on property belonging to Mullins and was at that time warned “that if he aided Mullins he would be in trouble with the law for aiding Mullins,” but the date of that incident was given as “December of ’75,” two months after the warrantless arrest in this case. The State attempted to inject the fact “Tackett drove Mullins to Kentucky” but the F.B.I. agent who was the secondary source for that information gave no “basis of knowledge” under Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964).

The single allegation remaining in the case from a citizen-informer who ostensibly spoke from firsthand knowledge was the following:

“Q. Now, the informer told you that for what, several'months prior to arrest, Tackett was in fact driving Mullins around?
A. That is correct.”

We cannot extrapolate from the fact that the appellant was wanted for an auto theft in November, 1974, and from the fact that Mr. Tackett was driving his uncle around almost a year later the conclusion that Mr. Tackett was harboring a fugitive. Delaware never charged Mr. Tackett with anything and apparently did not want him. The appellant, the man who was being driven around, had not violated any laws in this State, so far as the police knew, and had not been declared to be a fugitive by anyone. We see no factual support for the thing charged.

Moreover, we see no legal significance to the charge. The State, at the suppression hearing and upon appeal, has not asserted precisely what crime Mr. Tackett was arrested for, statutory or common law. No elements of this vague charge of “harboring a fugitive” have been set out so that we may test the present facts against those elements. Must “fugitive” status be established? Must the original crime have been a felony? Must there have been a conviction and subsequent escape as opposed to a mere charge? Would the act of harboring be a Delaware crime or a Maryland crime? The State has not sought to enlighten us in any of these regards.

We hold that the warrantless arrest of Mr. Tackett was unconstitutional. The subsequent search of his van was also unconstitutional under the “fruit of the poisonous tree” doctrine. The unlawful arrest was the primary illegality. But for that illegality, Mr. Tackett would have been privileged to drive the van away. The subsequent taking of the van into custody by the police was the exploitation of the primary illegality. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963).

As an invitee in his nephew’s van, the appellant enjoyed derivative standing under Cecil Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L.Ed.2d 697 (1960), to challenge the unconstitutional seizure of the van which led directly to the inventory search thereof.

Judgment reversed; costs to be paid by Cecil County.