author: Gilbert, C. J.,

text:
    NORMA L. VAN SCHAIK v. MARIE VAN SCHAIK
    [No. 568,
    September Term, 1976.]

      Decided February 8, 1977.

      The cause was argued before Gilbert, C. J., and Davidson and Lowe, JJ.

      Philip E. Nuttle, Jr. for appellant.

      Starke M. Evans for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Never loan a friend or relative more money than you can afford to lose because there is a possibility that while you keep the relative, the money and friend may be lost.

In the case now before us, the appellee, Marie Van Schaik, and her now deceased husband sold to their son, Robert, and his wife, Norma, a farm located in Caroline County. Robert and Norma executed a purchase money mortgage to the appellee and her husband in the amount of $16,500. The mortgage, dated February 1, 1963, was “to be paid in five (5) years with interest at the rate of five (5) per centum per annum, payable monthly.” The mortgage has not been paid; Norma, the appellant, is no longer the appellee’s daughter-in-law; the appellee was compelled to go into a court of equity to establish her claim to the mortgage.

The record reveals that subsequent to the recordation of the mortgage, the appellee and her husband assigned the mortgage to Provident State Bank of Preston, Maryland, as collateral security for a loan of $12,000. On October 25,1968, upon satisfaction of that debt, a release of the mortgage was forwarded by the bank to the circuit court. The uncontradicted testimony indicates that the bank, which authored the release, intended to “release the assignment” or more properly stated, reassign the mortgage to the senior Van Schaik but instead released the mortgage by mistake.

In 1969, appellant and her then husband deeded part of the land covered by the mistakenly released mortgage to Gustav Wilks in which they warranted specially the land conveyed. Appellee, who lived next door to the property that was the subject of the mortgage, knew of the transfer of land by appellant and her husband. The appellant’s husband, Robert, learned of the mistake regarding the release in 1969, when title was being searched for the Wilks’ land sale, but did not then advise his mother, the appellee, of the release.

The appellee and Robert “recapitulated” the amount due the appellee, including the accrued interest, and in July 1971, appellant and her husband executed a demand promissory note in appellee’s favor for that amount, $18,918, with interest at eight (8) per centum per annum. Four months later, November 1971, appellant and her husband gave a “first mortgage” on the property to the Denton National Bank to secure a loan of $10,000. That loan was paid in 1974 and that mortgage was released.

The domestic situation between Robert and the appellant apparently degenerated to the point that appellant left the marital domicile in January 1975, and a divorce ensued. It was not until “early 1975, when Norma left” that Robert informed the appellee that the purchase money mortgage had been mistakenly released by the bank in 1968, even though, as we have stated, Robert knew of the release in 1969. Robert explained his failure to tell his mother of the release by stating, in effect, that it made no difference because, “I couldn’t understand how one party could possibly release other parties of that responsibility [the payment of the mortgage]

To enforce her rights, the appellee filed a bill of complaint in the Circuit Court for Caroline County naming her son, Robert, the appellant, and the Provident State Bank as defendants. In her bill, the appellee prayed, inter alia, the passage of “a decree vacating the discharge and release” of the mortgage and that it be “reinstated as a lien of record” as a “mortgage from Robert Van Schaik and Norma L. Van Schaik to Marie Van Schaik and Cornelius Van Schaik.”

The chancellor, at the conclusion of the testimony, ordered:

“1. That the purchase money mortgage from Robert Van Schaik and Norma L. Van Schaik, his wife, to Cornelius Van Schaik and Marie Van Schaik, his wife, as tenants by entireties, dated February 1, 1963, . . . and the lien of record therefor is hereby reinstated and restored, and the purported release of same by the Provident State Bank dated and recorded October 25, 1968 ... is hereby set aside and vacated.
2. That the real property on which said mortgage lien is reinstated and restored shall exclude all that parcel of 60 acres (more or less) of land conveyed by deed of Robert Van Schaik and Norma L. Van Schaik, his wife, to Gustave A. Wilkes [sic], et al. dated March 31,1969.. . .
3. That the amount owed on this mortgage indebtedness will be the subject of further proceedings in this or a subsequent partition proceeding.”

Norma L. Van Schaik instituted further proceedings to determine the amount due under the mortgage. On May 28, Sl.976, the court ordered:

“1. That the amount of money due under the mortgage dated February 1, 1963 by and between Robert Van Schaik and Norma L. Van Schaik, his wife, to Cornelius Van Schaik and Marie Van Schaik, his wife, as of and through June 30, 1976 is TWENTY TWO THOUSAND SIX HUNDRED FORTY SEVEN AND 08/100 ($22,647.08) DOLLARS.
2. That the rate of interest on subject mortgage is eight (8%) per cent simple interest on the principal balance of FOURTEEN THOUSAND NINE HUNDRED EIGHTEEN ($14,918.00) DOLLARS.”

In high dudgeon, Norma Van Schaik has appealed to this Court where she asserts:

“I. Appellee’s claim was barred by laches.. . .
II. The trial court erred in reforming the mortgage when no legally sufficient evidence was produced by appellee justifying reformation.”

LACHES

In support of her first contention, appellant argues that appellee knew, or should have known, as early as 1969 of the mistaken release of the mortgage when part of the property subject to the mortgage was conveyed to Gustav Wilks. Appellant urges that appellee should have been placed on notice that something was amiss by her proximity to the land sold as well as her actual knowledge of the sale, and her attorney’s actual knowledge that it had been released. Appellant also charges that appellee had notice of the release in October 1968, by virtue of Md. Real Prop. Code Ann. § 3-102.

The Court of Appeals in Bradley v. Cornwall, 203 Md. 28, 39-40, 98 A. 2d 280, 285-86 (1953), quoted with approval 2 J. Pomeroy, A Treatise on Equity Jurisprudence § 419 d (5th ed. 1941), where it is said:

“Laches in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of either party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as an estoppel. . . against the assertion of the right."

See also Boyd v. Mercantile-Safe Deposit and Trust Co., 28 Md. App. 18, 26, 344 A. 2d 148, 154 (1975).

Before the defense of laches may be successfully invoked, two elements must be shown: (1) an undue lapse of time; and, (2) some disadvantage or prejudice to the party asserting the defense. Put another way, the delay in bringing the action must be intertwined with either prejudice or circumstances which make it inequitable to grant the relief sought. Anne Arundel County Bar Association v. Collins, 272 Md. 578, 325 A. 2d 724 (1974); Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 300 A. 2d 367 (1973); Boyd v. Mercantile-Safe Deposit and Trust Co., supra.

Even if we assume arguendo that the appellee knew or should have known of the 1968 release of the mortgage by Provident Bank, we still are required to evaluate appellant’s position to determine whether during the delay appellant altered or changed her circumstances so “that . .. [she] cannot be restored to ... [her] former state, if the right be then enforced.” 2 J. Pomeroy, A Treatise on Equity Jurisprudence § 419 d (5th ed. 1941).

The appellant, in order to set up the defense of laches, claimed that the deaths of three witnesses — (1) one of the mortgagees (Cornelius Van Schaik), (2) the signer of the release (the cashier of the Provident State Bank), and (3) the lawyer who recorded the release — had occurred during the delay in bringing suit and that those deaths prejudiced appellant’s defense. To bolster her position relative thereto, she relies upon Akin v. Evans, 221 Md. 125, 156 A. 2d 219 (1959); Krapf v. Adams, 200 Md. 393, 89 A. 2d 623 (1952); and Mays v. Mays, 176 Md. 159, 4 A. 2d 121 (1939). Our review of those cases, however, leads us to conclude that they are all factually inapposite and afford appellant no sustenation. The doctrine of laches was applied in Akin because no witnesses were alive who could clear up the real estate transaction in question. In Krapf laches was held to apply where the brothers Krapf sought to justify a delay of sixteen years chiefly on the ground that they expected certain property would be devised to them even though it was conceded that there was no evidence of a promise to do so on the part of the deceased. Laches was present in Mays. There a delay prevented the defendants from defending the suit. Although all three cited cases involved the death of principal witnesses, it was not death and time lapse alone which caused prejudice to the parties, but rather that the deaths prevented material evidence from being presented. That is not the situation in the case sub judice. In the instant case, the appellant did not testify nor did she proffer what testimony could have been produced, different from that in the record, had the witnesses been alive and available.

The record reveals that the bank admitted its mistake, and that Robert Van Schaik acknowledged his awareness of the mistake. Appellant, as we have said, did not testify. In light of the undisputed facts, we fail to see what prejudice was caused by the unavailability of the deceased witnesses.

There is yet another consideration to be made in this case and that is the effect of the recording of the release on the parties to the mortgage. While the “[failure to record the limiting instrument deprives the deed of its legal effect in affording constructive notice of its contents to subsequent bona fide purchasers,” it is valid as between the parties. Harrison v. Morton, 87 Md. 671, 40 A. 897 (1898); Owens v. Miller, 29 Md. 144 (1868). The same rule applies when that which should not have been recorded is recorded. Thus, if a release of mortgage is mistakenly recorded, that release is effective as to subsequent bona fide purchasers, but the mortgage remains valid as between the parties and equity will enforce it.

The release of the mortgage in the instant case had nothing to do with the appellant’s obligation. No lapse of time within the Statute of Limitations would lessen that indebtedness. It would continue until the amount owed had been paid or until the debt was otherwise cancelled by the appellee. We think the chancellor was correct in holding that the defense of laches was inapplicable to the instant case.

RESTORATION OF THE MORTGAGE.

The litigants approach the second argument raised on appeal from entirely different perspectives. Appellant avers that the trial court “. .. not only rescinded the release but excluded the land conveyed to Wilks from the effect of the mortgage and increased the interest rate of the mortgage from five to eight percent.” Appellant believes that the action by the court constituted a reformation of the mortgage as opposed to a rescission of the release. Appellant asserts that a reformation of a mortgage can take place only: “(1) Where there is a mutual mistake . . . and an agreement actually entered into, but the instrument, in its written form, does not express what is intended by the parties thereto; and (2) where there has been a mistake by one party accompanied by fraud or other inequitable conduct of the remaining parties.”

The appellee, on the otherhand, sees the court’s exclusion of the land conveyed to Wilks as “a recognition by the Court that, as Mr. and Mrs. Wilks were not parties to this action, the Court had no power or jurisdiction to pass any order effecting [sic] their rights with regard to this ... property.”

We think the chancellor did not reform the mortgage and his exclusion of the Wilks property from the lien of the mortgage was no more than an acknowledgment that the Wilkses were bona fide purchasers who took title free and clear of the mortgage encumbrance.

The chancellor bottomed his holding that the mortgage should be reinstated upon two decisions of the Court of Appeals, Bennett v. Westfall, 186 Md. 148, 46 A. 2d 358 (1946), and Bond v. Dorsey, 65 Md. 310, 4 A. 279 (1886).

Bennett involved a release of a mortgage by a mortgagee and the substitution of a new mortgage. Between the recordation of the first mortgage and the substituted one, a judgment had been entered against the mortgagor which appeared to take priority over the substituted mortgage. In an action to reinstate the first mortgage to its original priority, the mortgagee asserted that his release of the first mortgage was a mistake in that he did not intend to lower the priority of his mortgage to a subsequent indebtedness of the mortgagor. The Court permitted the correction of the mistake.

Bond dealt with the mistaken release of a mortgage, and articulates the rule that in Maryland, “[t]he doctrine thus established is, that ‘a subsequent mortgagee [or purchaser], whose rights existed at the time of the release, cannot object to the prior mortgagee being restored to his rights. Of course, the mortgage cannot be restored as against one who has in good faith purchased the property after cancellation, or has advanced money upon it upon the faith of a clear record title.’ ” 65 Md. at 316, 4 A. at 281 (emphasis supplied).

The position taken by the Court of Appeals regarding the mistaken release of mortgages is widely accepted. See 2 G. Glenn, Mortgages § 838 (1948); 3 G. Glenn, Mortgages § 384 (1948); 2 L. Jones, Law of Mortgages § 1237 (8th ed. 1928); 5 H. Tiffany, The Law of Real Property § 1498 (3rd ed. 1939). See also Conservative Life Insurance Co. v. National Exchange Bank, 114 W. Va. 271, 273, 171 S. E. 530, 531 (1933).

While the factual postures of Bennetto and Bond are different from that now before us, the concept involved in resolving the problem is the same. When, as here, a parcel of land is the subject of a recorded mortgage and the mortgage is mistakenly released, a court of equity will not reinstate the mortgage if the parcel has passed to a bona fide purchaser in the interim. If, however, part of the parcel still remains in the possession of the mortgagors, equity will reinstate the mortgage as to that part of the property only.

Appellant also contends that the chancellor reformed the mortgage when he increased the interest rate from five (5) per centum per annum to eight (8) per centum per annum. It is, of course, true that the chancellor did modify the interest rate as alleged by the appellant, but his action was taken as the direct result of uncontradicted evidence that the increased interest rate had been agreed upon by the parties at the time of the signing of the July 1, 1971, note. The testimony was that the appellant and her then husband, a co-defendant, were of the opinion that the appellee was entitled to raise the then five (5) per centum interest, particularly in view of the prevailing interest rate and her forbearance to foreclose the mortgage. In sum, the appellant received that to which she had agreed, and the chancellor was no more than an instrument which gave vitality to that agreement.

There is some confusion as to the current status of the mortgage, but that is easily resolved. The nullification of the release and the restoration of record of the mortgage places the ownership of the mortgage in the assignee, Provident State Bank. The order does not purport to oust the bank of title. Inasmuch as the bank admits that the loan, for which the assignment of the mortgage served as collateral, has been paid, all that need be done is for the bank to reassign the mortgage to the appellee.

We think the record in the instant case is such as to leave no doubt in the mind of a reasonable person but that the mortgage was released in error, and the appellant was in no manner prejudiced by that release. In effect, what appellant is contending is that the bank erred to the detriment of the appellee and to the great benefit of the appellant. Because of that “windfall,” the error should not be rectified. Such a view has no appeal to a court of equity. Bennett v. Westfall, supra.

Order affirmed in part, reversed in part and remanded for passage of a decree in accordance with this opinion.

Costs to be paid by appellant.

      . Attributed to Jim Oigan, a mythical character in a child’s fantasy.

        . The senior Mr. Van Schaik died in February 1967. The record does not disclose how the mortgage was treated in his federal estate tax return, if indeed, such a return was necessary.

      . This section provides that “[a]ny instrument affecting property ... may be recorded. The recording of any instrument constitutes constructive notice from the date of recording.” Appellant avers that the “recording of the release in 1968 operate [d] as constructive notice of the fact to Appellee.”

      . At the time of trial appellant’s counsel called, in open court, the names of two of the witnesses. The trial judge said of the first, “.. . [He] is deceased. I was one of his pallbearers ...” and of the second, “I attended his funeral, I was one of the honorary pallbearers.” The judge then went on to state, “And for the record both of these witnesses are in Heaven.” We observe that ordinarily that judgment is left to much higher authority.

      . Stebbins-Anderson Co. v. Bolton, 208 Md. 183, 190, 117 A. 2d 908, 911 (1955). See also Winakur v. Sapourn, 156 Md. 662, 672, 145 A. 342, 346 (1929).

      . Md. Cts. & Jud. Proc. Code Ann. § 5-103 states that any action to recover ‘... possession of a corporeal freehold or leasehold estate in land ...” must be brought “[w]ithin 20 years from the date the cause of action accrues....”

      . Notwithstanding the mistaken release of the mortgage, the appellee could have proceeded against the appellant and Robert Van Schaik in an action grounded on the note. Inasmuch as the note specified the full amount of the debt as of July 1, 1971, interest at 8%, and was executed under seal, no question of limitations or “laches” would appear to have been involved. Why this seemingly somewhat easier course of action was not pursued is not apparent from the record.

      . The procedure for the reassignment is set out in Md. Comm. Law Code Ann. § 9-406. See Md. Real Prop. Code Ann. § 7-101 (b) which provides:
      “This section is not applicable to a transfer by the mortgagee ... of his interest in the mortgage as security for payment of an indebtedness or performance of an obligation. Such a transfer is governed by Title 9 of the Uniform Commercial Code[.]”


source: Caselaw Access Project

license: Public Domain

text:
    NORTHWESTERN NATIONAL INSURANCE COMPANY v. GARY A. GOLDSTEIN, Trustee et al.
    [No. 577,
    September Term, 1976.]

      Decided February 8, 1977.

    The cause was argued before Gilbert, C. J., and Thompson and Moore, JJ.

      Patrick G. Cullen, with whom were Lerch & Huesman on the brief, for appellant.

      Gary C. Duvall, with whom was Gary A. Goldstein on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

Seeking to prove wrong Proverbs 12:15 (King James) that, “He that is surety for a stranger shall smart for it,” Northwestern National Insurance Company appeals from an order of the Circuit Court for Baltimore County denying priority status to Northwestern in an insolvency proceeding.

The case is submitted to us on an agreed statement of facts, which, with slight editing, we quote in full:

“J & L f] was in the business of trading and selling recreational vehicles. To receive from Maryland officials the proper licenses and permits, it obtained from Northwestern a surety bond guaranteeing that J & L would comply with various statutes of the State of Maryland. One of those statutes required J & L to turn over to the State all excise taxes it collected from sales of recreational vehicles. J & L collected $5,674.30 from its customers for excise taxes to be paid to the State of Maryland for its customers, but failed to turn over said sum to the State. Northwestern, in accordance with the surety bond it had issued, paid $1,921.32 directly to the Sítate for nonpaid excise taxes and further paid $3,752.98 to customers of J & L who had been required by the State to pay again the excise tax directly to the State before the State would issue tags and titles for the vehicles.
Northwestern filed a claim in the Deed of Trust [] proceedings seeking a priority status on account of those payments. The Court-Appointed auditor allowed such claim as a priority over general claims. Upon objection by [Equitable Trust Company,] another creditor [],. .. [the chancellor] disallowed the priority.”

Smarting from the circuit court’s disallowance of the priority, Northwestern asks us to apply balm to the sting by reversing the matter. We shall reverse, but only to extent of the $1,921.32 paid directly to the State of Maryland. We affirm, however, that portion of the order refusing priority status to the $3,752.98 that Northwestern reimbursed customers of J & L. We now state our reasons.

At the time of the chancellor’s decision, April 28, 1976, Md. Com. Law Code Ann. § 15-102 provided in pertinent part:

“(b) Priorities. — The property of an insolvent who makes an assignment for the benefit of creditors or who has his property taken by a receiver under a decree of a court in an insolvency proceeding shall be applied to the following, in the order stated:
(1) Lien claims of the State, a county, municipal corporation, or other political subdivision of the State, and claims of persons having judicial liens on property of the insolvent recorded more than four months before the assignment or institution of the insolvency proceeding [];
(2) Costs and expenses of the administration of the trust or the insolvency proceeding which the court approves;
(3) Wages of an employee and health, welfare, and. pension contributions contracted for in place of wages, earned not more than three months before the assignment or institution of the insolvency proceeding;
(4) Rent for any interest in real property in the State due not more than three months before the execution of the assignment or institution of the insolvency proceeding;
(5) Charges in connection with the transportation of goods advanced by one common carrier to another on behalf of a consignor or consignee not more than three months before the assignment or institution of the insolvency proceeding;
(6) Taxes not included in paragraph (1) of this subsection; and
(7) Claims of unsecured creditors.”

The appellees argue, “The paramount goal which the insolvency laws have always sought to achieve is equal distribution of an insolvent’s property among its creditors.” The chancellor agreed with that view when he stated, “The overriding policy of the insolvency laws is ... to treat all creditors equally.” We disagree. It seems to us that § 15-102 makes crystalline that “equal distribution” is not the objective of the State insolvency laws, nor are they designed “to treat all creditors equally.” On the contrary, the very statute creating priorities repudiates that position, else why have priorities. We believe the State policy on insolvency to be to treat all creditors within the same class equally. Hence, two unsecured creditors are treated in the same manner, but a creditor with a priority claim would have a preferred status as to the unsecured creditors. N. Hess & Brother v. Jewell, 85 Md. 235, 36 A. 758 (1897). While it is true that § 15-102 does not specifically provide that a surety is subrogated to the rights of its obligor, nothing within the statute forbids the subrogation. In fact, Md. Com. Law Code Ann. § 15-401 seems to convey that meaning. It provides:

“If a surety in any bond or other obligation for the payment of money or a promissory note, or the endorser of a protested draft, pays or tenders the money due on it in full, he is entitled to an assignment of it and, by virtue of the assignment, may maintain an action in his name against the principal debtor.”

As is stated in the Revisor’s Note to § 15401, “[t]he purpose of this section is to place the surety ‘in the shoes of the judgment creditor, and embraces all kinds of sureties. . . .’ See Wallace v. Jones, 110 Md. 143 [, 72 A. 769] (1909)____” No distinction between compensated and non-compensated sureties is drawn by the statute.

The Court of Appeals in Orem v. Wrightson, 51 Md. 34, 45-46 (1879), held that a surety is subrogated to all the rights of his obligor, including priority. The Court said:

“We think the doctrine is well established by a decided preponderance of the cases, that a surety, who has paid the debt of his principal obligor, is subrogated in equity by the act of payment, not only to the securities of the creditor, but to all his rights of priority. If therefore the creditor could have rightfully claimed a preference in the distribution of assets, the same preference will be upheld by way of subrogation for the benefit of the surety.
Is a different rule to be applied where the State is the creditor? We can see no reason why it should be. It is not necessary to inquire how, or in what manner the State’s right to rank as a preferred creditor is derived, whether it is a prerogative right derived from the common law, or whether it has been conferred by statute. As is said in some of the cases to which we have referred, equity in applying the doctrine of subrogation looks not to form, but to the substance and essence of the transaction. It looks to the debt which is to be paid, and not to the hand which may happen to hold it, and will see that the fund charged with its payment shall be so applied....
. . . And if equity does not regard the hand which holds the debt, and will see that the fund charged with its payment shall be so applied, what difference can logically result whether the creditor, to whom the surety has made payment, is the State or an individual.
While this view of the law will do no wrong to any one, it will add facilities in securing and collecting the revenue of the State. If sureties know that they can be subrogated to the priority of the State, less apprehension will be felt in joining in the bonds of collectors, and less delay in payment by solvent sureties, other creditors are not injured, for if the State has the first claim upon the fund, it does them no wrong whether this claim is enforced by the State, or by those standing in its stead.” (Citation omitted) (emphasis supplied).

See also Motor Vehicle Security Fund v. All Coverage Underwriters, Inc., 22 Md. App. 586, 609, 325 A. 2d 115, 128-29 (1974).

Contrary to the chancellor’s view that Orem “is of no force today” stands the overwhelming weight of authority. See A. Stearns, The Law of Suretyship § 11.5 (5th ed. J. Elder 1951); Restatement of Security § 141 (a), Comment c, Illustration 5 (1941); Annot., 24 A.L.R. 1502 (1923). Cases of other jurisdictions following the general rule are: Aetna Casualty and Surety Co. v. Sherwood Distilling Co., 271 F. Supp. 381 (D. Md. 1967); Continental Casualty Co. v. United States, 169 F. Supp. 945 (Ct. Cl. 1959); Arkansas Power & Light Co. v. Fidelity & Casualty Co., 197 Ark. 187, 121 S.W.2d 890 (1938), drawing no distinction between compensated and noncompensated sureties; Cuesta, Rey & Co. v. Newsom, 102 Fla. 853, 136 So. 551 (1931); In re Harris’ Estate, 161 Misc. 793, 293 N.Y.S. 250 (1937); State ex rel. Southern Surety Co. v. Schlesinger, 114 Ohio St. 323, 151 N. E. 177 (1926); United States Fidelity & Guaranty Co. v. Bramwell, 108 Or. 261, 217 P. 332 (1923); Franklin Trust Co. Case, 319 Pa. 193, 179 A. 725 (1935); Gummelt v. Southwestern Indemnity Co., 363 S.W.2d 379 (Tex. 1962); State ex rel. County Court v. Doddridge County Bank, 116 W. Va. 683, 182 S. E. 884 (1935). Contra, United States Fidelity and Guaranty Co. v. McFerson, 78 Colo. 338, 241 P. 728 (1925); Commissioner v. Chelsea Savings Bank, 161 Mich. 691, 125 N. W. 424 (1910).

Moreover, Orem has not been overruled by the Court of Appeals and thus is still alive and well.

We think, as we have previously observed, that Northwestern, having paid the State’s claim of $1,921.32, was then subrogated to the State’s claim and its priority status in the distribution of the insolvent’s estate.

With respect to the remaining $3,752.98, we note that the various persons who paid that aggregate sum to the State apparently had previously paid the money to J & L, but that J & L did not forward the sum to the State. When the State demanded the payment of the taxes by the persons who had already paid J & L, those persons paid the State directly, notwithstanding their prior payment to J & L. Thus, no part of the $3,752.98 was due the State when the surety was called upon to make good on its bond. One does not become subrogated to the State by paying taxes to it which one was legally obligated to pay so that none of the persons who paid the $3,752.98 were subrogees of the State. They were, however, general creditors of J & L to the extent of $3,752.98, and when .Northwestern paid those general creditors, it stepped into their shoes and became a general creditor also.

The trustee, Gary A. Goldstein, Esq., was, in the circumstances of this case, no more than a stake-holder. It should have been immaterial to Mr. Goldstein as to the status of the appellant, or whether Equitable received a greater share of distribution than allowed by the auditor’s report. Why the trustee deemed it necessary to be represented by counsel in this appeal eludes us. In any event, in reversing in part, we shall assess all appellees’ costs against Equitable and not cause an additional expenditure of the trust estate.

Order affirmed in part and reversed in part.

Case remanded for the entry of an order consistent with this opinion.

Costs to be paid one-half by appellant and one-half by appellee, Equitable Trust Company.

      . J & L Camping & Sports Center.

      . J & L executed a Deed of Trust for the benefit of creditors.

      . Equitable’s unsecured lien was $644,643.

      . By 1976 Md. Laws ch. 388, effective May 4, 1976, the language of subsection (b) (1) was amended as follows:
      “(1) Lien.claims of the State, a county, municipal corporation, or other political subdivision of the State perfected or recorded before' the assignment or institution of the insolvency proceeding, and claims of persons having judicial liens on property of the insolvent recorded more than four months before the assignment or institution of the insolvency proceeding...."
      The italics are supplied to emphasize the added language. In all other respects, § 15-102 remains the same. Even though this amendment became effective more than two months prior to the chancellor’s order of July 14,1976, the amendment has no effect on this opinion.


author: Thompson, J.,

text:
    MARK THOMAS DAGEFORDE et al. v. THE POTOMAC EDISON COMPANY
    [No. 579,
    September Term, 1976.]

      Decided February 9, 1977.

    The cause was argued before Gilbert, C. J., and Thompson and Moore, JJ.

      Dan Rupli, with whom was Pierre E. Dostert on the brief, for appellants.

      John E. Sandbower, III, with whom were Michael A. Pretl and Smith, Somerville & Case on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

At the conclusion of a bench trial in the Circuit Court of Frederick County, Judge Robert E. Clapp, Jr. found that the appellants, Mark Thomas Dageforde, et al., had not established primary negligence on the part of The Potomac Edison Company, the appellee, arising from electrical burns sustained by the minor appellant. On this appeal, the appellants allege that primary negligence was established either from the indiscriminate placing of a dangerous electrical pole or by the doctrine of res ipsa loquitur. They further contend that the Maryland law, regarding the right of parents who witness an' injury to their child to recover for shock and mental anguish, should be re-examined.

In 1962 the appellants moved to a farm near Myersville, Maryland. On the premises was an electrical pole in close proximity to the house. An uninsulated 7,200 volt high-power line ran into a transformer at the top of the pole. Below this wire was another uninsulated line, sometimes called a neutral ground line, running into the transformer which created the high voltage circuit. From the bottom of the transformer to the house ran a triplex line which provided the electrical current for the various appliances inside the house. This line consisted of two insulated 120 volt wires twisted around an uninsulated neutral ground wire which tied into the pole’s guy wire. In close proximity to this pole was an apple tree. The triplex line ran through the top branches of the tree. These top branches, however, were not sufficiently sturdy to bear the weight of a person, even a small boy, climbing the tree. All of the branches were several feet from both of the high tension wires.

On September 30, 1971, twelve-year old Mark Thomas Dageforde, one of the appellants, left his house, after dinner, to pick apples. From the standpoint of the electrical service inside the house, it would appear that the power lines were functioning properly at that time. A short while later there was an unusual noise, the lights flickered, and Mrs. Dageforde and another son ran out of the house to find Mark lying on the ground, at the foot of the apple tree, severely burned. The neutral ground wire of the triplex line was found broken three to five feet from where it connects to the pole. No other wires were broken.

At trial none of the witnesses could make a positive statement as to how the injury had occurred. Mark Dageforde testified that he was climbing in the apple tree when, all of a sudden, he saw a light flash, and then he was on the ground. On cross-examination he indicated he might have been on the pole. At the hospital after the accident he told the doctor that he was climbing the electric pole when he was shocked. He could remember nothing more. Several theories were offered by each side. The appellants suggested that the boy was climbing the tree when one extremity of his body came within six inches of the broken ground wire and another extremity of his body came within six inches of the guy wire which formed a circuit, causing the burns. The appellee’s evidence suggested that the burns could have been caused only by touching a high tension wire, which means that the injury was a result of climbing to the top of the electric pole. Mark had knowledge that he could be burned by electrical wires.

The appellants contend that the placing of the pole and transformer so close to a tree, which the appellee knew would be climbed by the appellants, was primary negligence. They state that the one conclusion which can be reached in the case is that if the pole had not been next to the tree Mark Dageforde would not have been burned. The trial judge found:

“Now, the plaintiff has introduced an expert whom I found to be qualified to testify and give an opinion. It was his belief that a broken wire, a neutral wire, characterized from the evidence, found upon inspection by the power company crew to be broken at a point some three to five feet from the pole involved, had caused a buildup of voltage sufficient that when the boy climbed the tree one extremity came within six inches of it at one point and another extremity or portion of his body came within six inches of the ground wire that was on the electric pole sufficient to form a circuit and to cause these burns.
“Testimony of the expert produced on behalf of the defendant was to the effect that the accident could not possibly have happened in this particular way, both from the standpoint of examination and knowledge of the injuries and also from a knowledge of the propensities and characteristics of electricity. Now, I can take for granted and I would so find in this case that this pole was located at such a point next to the apple tree that the power company would be charged with knowledge that children of that family would climb that tree. They had a duty therefore to see that there was nothing in that power system that would endanger those who would climb that tree to get apples. If this were a high wire or high voltage wire as seems to be the cases mainly dealt with in 27 ALR 2d and if this was a case of a tree climber coming in contact with the high voltage wire, or if it were a case where the climbing of the tree caused contact of the tree with a high voltage wire that transmitted this electrical high voltage to a person climbing, I would have no problem at all here finding that there was negligence on the part of the defendant, causing the injury. That, however, is not this case. I must say, I say that with some regret because of the serious injuries to this infant plaintiff and to his family; but he was not injured in this case by coming in contact with this line that was in close proximity to a tree that he would normally be expected to climb he was injured by some totally unexpected event, the cause of which has not been established, at least to my satisfaction as a finder of fact. The expert opinion of the witness for the plaintiff undertakes to state and presupposes that this line had broken sometime prior to the time that the infant plaintiff got to the point where there was contact either within six inches by himself or contact with a tree branch which transmitted excess power voltage through the tree to the infant plaintiff. As I say, this presupposes, I think, the fact that the wire had broken prior to the time that the infant plaintiff was hurt. It presupposes also what I find difficult to accept — the fact that one part of the plaintiffs body — infant plaintiffs body could have been within six inches of this broken triplex line and another part within six inches of the ground wire that was attached to the pole. I am unconvinced that a twelve-year-old boy is of such size that this could happen, under the testimony before me where by the admitted testimony from the plaintiff the upper branches of this tree would not support even a twelve-year-old boy.
“Even assuming, however, that the version of the accident as testified to by the plaintiffs expert could be accepted, I would still have a problem with the question of whether or not the power company was negligent in not anticipating an injury such as this. There is no indication that they had warning in any way that this line was broken. There is no indication that the line was so worn prior to the accident that inspection by the company even the day before would have brought about a replacement or repair. Certainly there is no indication that the power company should have anticipated that a tree climber would get in the position required as the basis for the expert opinion as given by the plaintiffs witness. As I say, this is not a case of proximity to a high voltage line; all the testimony, undisputed, is that, unbroken, this triplex line would have done no harm to anyone even by grasping it in a firm grip. The consequence is that I do find as a fact that there is no primary negligence against the defendant.” (Emphasis added).

The law with regard to primary negligence of electric companies in this type of case was stated in Driver v. Potomac Electric Power Company, 247 Md. 75, 80-81, 230 A. 2d 321 (1967), quoting Le Vonas v. Acme Paper Board, Company, 184 Md. 16, 21, 40 A. 2d 43 (1944):

“The law does not require an electric company to insulate its high-tension wires everywhere, but only where there is reason to apprehend that persons may come in contact with them, either in the pursuit of their calling or where théy may be reasonably expected to go. In the absence of statute or ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in close proximity to them.”

For the electric company to be found liable, the person involved in the accident may not be a trespasser or mere licensee on the company’s property (the pole), but must be in an adjacent position where they might be reasonably expected to come in close proximity to the source of danger. Stansfield v. C. & P. Telephone Co., 123 Md. 120, 127, 91 A. 149 (1914). The mere fact that the tree could be utilized to climb the pole does not establish negligence. Where the wires have been placed above and beyond the sphere of peril to the public, it would be subjecting the electric company to an unduly strict responsibility to require them to provide against the possibility that their own pole might be utilized as a means of access to the danger. Stansfield v. C. & P. Telephone Co., supra. The burden was on the appellants to prove that the accident occurred while Mark was in the tree. The trial court found that this had not been established to the satisfaction of the finder of fact. As there was evidence to support this finding, we cannot second guess to hold the finding clearly erroneous. Staley v. Staley, 25 Md. App. 99, 110, 335 A. 2d 114 (1975).

Appellants also contend that the doctrine of res ipsa loquitur would apply to create the inference of negligence. The law concerning this doctrine was reviewed at length in C. & P. Telephone Company v. Hicks, 25 Md. App. 503, 337 A. 2d 744 (1975), cert. denied, 275 Md. 750. As that case states at page 516, quoting Leikach v. Royal Crown, 261 Md. 541, 547-548, 276 A. 2d 81 (1971), the three criteria which must be established by the appellants in order to invoke the application of res ipsa loquitur are:

‘1. A casualty of a sort which usually does not occur in the absence of negligence.
2. Caused by an instrumentality within the defendant’s exclusive control.
3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.’ ”

In the instant case the appellants have failed in their burden to establish the first and third criteria.

Standing alone, uninsulated wires and the happening of an accident do not create a situation from which the presumption of negligence arises. State ex rel. Bahner v. Consolidated Gas and Electric Co., 159 Md. 138, 141, 150 A. 452 (1930). It was necessary for the appellants to establish that at the time of the accident Mark was located in a position where a duty was owed to him by the appellee. Upon establishing this the company would have been required to use that degree of care which is commensurate with the great danger. Hagerstown & Frederick Railway Co. v. State ex rel. Weaver, 139 Md. 507, 115 A. 783 (1921). See also, Annapolis & Chesapeake Bay Power Co. v. State ex rel. Smith, 152 Md. 241, 136 A. 615 (1927). As has been stated before, the appellants did not meet the burden of establishing that Mark was in such a place.

It is just as obvious that it was not shown that the casualty did not result from an act or omission of the plaintiff. Anyone with knowledge of the presence of electrical wires and their danger who does not take the proper precautions for his safety is guilty of contributory negligence. Frazee v. Baltimore Gas and Electric Company, 255 Md. 627, 258 A. 2d 425 (1969). Mark had that knowledge. While the trial judge found that the appellee had not established that the child had climbed the pole, thus precluding a finding of contributory negligence, in order to establish res ipsa loquitur the appellants had the burden of establishing the lack of contributory negligence. C. & P. Telephone Co. v. Hicks, supra, at 530. This burden was not met.

As we affirm the trial court’s finding that the appellants have failed to prove negligence on the part of the appellee, the adult appellants could not recover for shock and mental anguish resulting from witnessing the injury of their child, even if Maryland recognized such an action.

Judgment affirmed.

Appellants to pay the costs.


author: Powers, J.,

text:
    FIRST NATIONAL BANK et al. v. DANIEL J. SOHN
    [No. 596,
    September Term, 1976.]

      Decided February 9, 1977.

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

      Frank C. DiGiorgio for appellants.

      Jacob Yosef Miliman for appellee.
   Powers, J.,

delivered the opinion of the Court.

In September 1974 Daniel J. Sohn, employed as a stockroom clerk by First National Bank in Baltimore, sustained an injury arising out of and in the course of his employment. He went to a hospital clinic for examination and treatment as an outpatient. The injury was reported to be to the left shoulder.

A radiology report stated that there was an avulsion fracture of the superolateral aspect of the left humerus. A recheck some two months later showed an area of slight cortical thickening and bony proliferation with no residual evidence of any loose bone fragment.

On his claim filed with the Workmen’s Compensation Commission Mr. Sohn received compensation for temporary total disability until 12 January 1975. In April 1975 a hearing was held on the issue of the nature and extent of the disability. Mr. Sohn testified briefly. He told the Commission how the injury was sustained, and where it hurt. Report forms showing follow-up visits to the clinic, and reports of examinations by two different orthopedic surgeons, one in February and one in March, were filed.

One orthopedic report noted that the trauma was producing a frozen shoulder. Inspection of the shoulder noted mild deltoid atrophy, tenderness, and limitation of motion. The surgeon said that the symptoms were likely to remain on a more or less permanent basis. He said the injury was consistent with a 10% permanent partial disability of the left shoulder. The other report referred to examination of the left shoulder, and was more specific in stating the degrees of limitation of various motions, and noted loss of tone of the muscles of the left shoulder joint and left arm. The examiner expressed the opinion that the disability of the left shoulder was 40 per cent permanent.

The commission made an award of permanent partial compensation under “Other Cases” amounting to 25% industrial loss of use of the body as a result of the injury to the left shoulder. The employer and insurer asked for a rehearing, which was granted. The Commission affirmed its previous award. The employer and insurer appealed to the Baltimore City Court.

On appeal the case was submitted to Judge Basil A. Thomas on the record, a more detailed letter from one of the . orthopedists who had examined Mr. Sohn, and arguments of counsel. Judge Thomas entered an order affirming the order of the Commission. The employer and insurer took this appeal.

We have summarized the evidence before the Commission. The only additional evidence before the court was a letter. It contained these statements, possibly relevant:

“* * * the medical diagnosis is post-traumatic subacromial bursitis of the left shoulder with resultant adhesive capsulitis. In lay terms, this is an inflammation of the sac situated between the arm and shoulder blade. This sac ordinarily acts as a lubricant to allow the bones to glide over one another smoothly without grating against each other. There are many such sacs situated elsewhere in the body. From the injury, this sac became inflamed and tender. Motion of the arm irritated it and consequently the patient did not move the arm through its normal excursion and scar tissue built up in the soft tissue structures about the shoulder joint producing a stiff or frozen shoulder.
“* * * ^ iocation of the site of injury is a combination of the arm or portion thereof and trunk or portion thereof since the bursa sac is not part of either, but is actually in between both.
“* * * I feel that the percentage of disability reflects a percentage of the arm alone or portion thereof.
“* * * anatomical site of the lesion involved a combination of the arm and trunk, the disability, for all intents and purposes, reflected impairment only to the arm and the 10% permanent partial disability applies to this.”

Appellants raise only one issue. They argue that Mr. Sohn’s injury was to his arm, and that compensation for his disability may be awarded only according to the schedule of Specific Injuries listed in § 36 (3) of Code, Art. 101. They argue that the lower court (and the Commission) erred in holding that Mr. Sohn’s disability was compensable under § 36 (4), relating to Other Cases.

Subsection (3) of § 36 sets forth the basis for determining compensation payable for permanent partial disability resulting from loss or loss of use of various specific members, or parts of the body, mostly extremities, but including sight and hearing.

Subsection (4) provides, in part:

“In all other cases of disability other than those specifically enumerated disabilities set forth in subsection (3) of this section, which disability is partial in character, but permanent in quality, the Commission shall determine the portion or percentage by which the industrial use of the employee’s body was impaired as a result of the injury * *

Appellants rely heavily upon the opinion of this Court in Smith v. Pyles, 20 Md. App. 478, 316 A. 2d 326 (1974). In that case the claimant sustained a fracture of the upper part of the femur, or thigh bone. The surgeon who performed an operation for reduction of the fracture said in a report that the claimant had sustained a 15% permanent disability to his left leg. Another report rated the claimant as having a 40% partial permanent disability of the left hip. The Commission made an award under Other Cases. The Circuit Court for Baltimore County reversed, and remanded the case to the Commission to determine the disability, limited to the left leg.

We affirmed. There was a suggestion in the evidence that Smith complained of back pain. A medical witness said that whatever you have to the hip is going directly to the back, because of the imbalance. But the same witness said that if Smith's left leg were any shorter, it was not due to the fracture. The evidence did not establish that the back pain was attributable to the injury, rather than to arthritis or some other cause. We said, at 483:

“We recognize that an injury to the anatomical parts of the body set forth in the ‘specific injuries section’, Md. Ann. Code Art. 101, § 36 (3), could affect other parts of the body thus justifying an award under ‘Other Cases’, Md. Ann. Code Art. 101, § 36 (4) (a). This is not such a case.”

The disability of Mr. Sohn shown by the medical evidence is such a case. The focus of the injury was indeed a fracture of a part of the arm — the head of the humerus — the ball of the ball and socket combination which constitutes the shoulder joint. The medical evidence clearly supported a finding that the disability included a “frozen shoulder”, bursitis of the shoulder, with adhesive capsulitis. The sac between the arm and shoulder blade was inflamed. There was atrophy of the deltoid, a muscle in the shoulder, and loss of tone of the muscles of the shoulder joint and of the arm.

A decision of the Workmen’s Compensation Commission is prima facie correct. The burden is upon the party attacking it to persuade the trier of facts to the contrary. Dent v. Cahill, 18 Md. App. 117, 305 A. 2d 233 (1973). Judge Thomas, the trier of facts in the Baltimore City Court, was not persuaded. We are not persuaded that Judge Thomas erred.

Order affirmed.

Appellants to pay costs.


author: Liss, J.,

text:
    KEITH DARNELL SMITH a/k/a Leroy Brown v. STATE OF MARYLAND
    [No. 599,
    September Term, 1976.]

      Decided February 9, 1977.

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

      Arnold M. Zerwitz, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, .for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and H. Robert

      Scherr, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal from a judgment rendered in a court trial by Judge Mary Arabian of the Criminal Court of Baltimore in which the appellant, Keith Darnell Smith, was convicted of larceny over $100 and sentenced to four years imprisonment.

Initially, a charging document was filed against the appellant in the District Court of Baltimore City alleging that he “Did steal and carry away three sport coats, goods and chattels, money and property of the Princess Shop, 3736 Eastern Avenue in Baltimore City on the 24th of August, 1974.” The appellant prayed a jury trial, and the case was transferred to the Supreme Bench of Baltimore City; however, when the case was called for trial, the appellant elected instead to have the matter tried by Judge Arabian without a jury.

During the course of the trial, following the introduction of evidence as to the value of the merchandise allegedly stolen, the State moved to amend the charging document by adding the words “felonious” and “value of over $100.” The court granted the motion over the appellant’s objection and found him guilty of the amended charge.

The sole question presented in this appeal is whether the trial court erred in permitting the amendments to the charging document. We find there was no error and shall affirm the judgment of the court below.

The facts are not in dispute. A clerk of the Princess Shop clothing store observed the appellant place some of the store’s merchandise in a bag and proceed toward the exit of the store. She alerted the store manager, and as he approached the appellant who at this point was near the front exit, the appellant's female companion yelled to him to run. The appellant took foot in hand, exited the store and ran down the street with the manager chasing after him. While running, the appellant discarded the shopping bag which the manager picked up from the ground and continued his pursuit. A police officer on cruising duty saw the chase, apprehended the appellant and arrested him. The recovered shopping bag contained three jackets with the store’s price tags still attached and indicating their value to be $38 each. It was at that point during the trial, when the value of the store’s merchandise was adduced, that the State’s Attorney moved to amend the original charge, and the trial court granted the amendments over the appellant’s objection.

Maryland Rule 714 a. provides:

“On Motion of the State’s Attorney, or on its own motion, the court may permit an indictment to be amended as to matter of form at any time before verdict. The court may permit an indictment to be amended as to matters of substance only with the consent of the defendant.”

The Court of Appeals made the distinction between matters of form and those of substance in Corbin v. State, 237 Md. 486, 489-90, 206 A. 2d 809, 811 (1965):

“As to what constitutes substance and what is merely formal in an indictment, it may be said that all facts which must be proved to make the act complained of a crime are matters of substance, and that all else — including the order of arrangement and precise words, unless they alone will convey the proper meaning — is formal.”

The appellant complains that the amendments of the charging document allowed by the trial court were of legal significance. He suggests that under the original charging document he could only have been found guilty of petit larceny which carries a maximum sentence of a $500 fine and/or imprisonment for not more than 18 months; whereas, under the amended charge he could be and was found guilty of larceny of goods over $100, which offense subjected him to a maximum penalty of not more than a $1,000 fine and/or imprisonment for not more than 15 years.

Of significance here then is whether the crime of which the appellant was convicted was “larceny” or “grand larceny.” At common law, larceny was divided into two classes: simple, i.e., not accompanied by any circumstance of aggravation; and compound, i.e., committed under circumstances of aggravation. Simple larceny was further divided by law into the classes of grand and petit determined by the value of the property, but both were still felonies with mitigated punishment provided for petit larceny. Maryland law follows this classification by value of property for punishment purposes, and has made larceny under $100 a misdemeanor. Melia and Shelhorse v. State, 5 Md. App. 354, 360 n.5, 247 A. 2d 554, 558 (1968); C. Moylan, The Historical Intertwining of Maryland’s Burglary and Larceny Law or the Singular Adventure of the Misunderstood Indictment Clerk, 4 U. Balt. L. Rev. 28, 34-38 (1974).

Thus, in Maryland our courts have said:

“[Ljarceny in this jurisdiction is a crime under the common law. Only the punishment authorized on conviction of it, more severe if the value of the goods stolen is $100 or upwards, and its classification as a felony in such case, are prescribed by statute. Simple common law larceny is the wrongful and fraudulent taking and removal of personal property from the possession of another against his will, with intent to deprive the person entitled, thereto of his ownership therein.” Farlow v. State, 9 Md. App. 515, 516-17, 265 A. 2d 578, 580 (1970) (citations omitted).

The original charging document set forth all the facts necessary to state the crime of larceny. The value of the property is not an element of the offense and was not required to be stated in the charging document.

In the early case of Davis v. State, 39 Md. 355, 373 (1874), the Court of Appeals said:

“If the circumstances which constituted the crime, or increased the punishment, were not set out in the indictment, the accused would not be informed of the offense with which he was charged, or of the penalty to which he was liable. These reasons do not apply to a statute, neither creating an offense nor enhancing its penalties, hut dividing a common law offense into degrees and diminishing the punishment. The essential elements of all felonies at common law, such as murder, arson and robbery, have been ascertained and defined by innumerable decisions . . . .” (emphasis supplied).

This Court had before it an analogous situation involving a charge of receiving stolen goods in Jackson v. State, 10 Md. App. 337, 270 A. 2d 322 (1970), cert. denied, 260 Md. 721 (1970). We said at page 348, 270 A. 2d at 327-28:

“The value of the goods is not an element necessary to constitute the offense; it did not have to be alleged nor proved as alleged any more than it is necessary to allege in the indictment the name of the thief or the person from whom the property is received. Of course, the State must prove the value of the goods received to establish the punishment authorized and the classification of the offense.” (citations omitted).

It seems clear to us that the appellant was charged originally with common law larceny, and the question of whether this was petit or grand larceny became a matter of proof at the trial. The amendments allowed by the trial court were, in effect, surplusage; and the proof adduced at the trial could have been received without the necessity of any amendment. The appellant’s contention that the addition of the word “felonious” over his objection was error is not supported by the Maryland Rules. Rule 712 b. provides:

“The word ‘unlawfully’ shall cover both a felony and a misdemeanor and it shall not be necessary to use the word ‘feloniously’ in charging an offense.”

When in a charging document the facts as originally alleged constitute a crime, the addition by amendment of the word “unlawfully” has been held not to be a change of substance. Woods v. State, 14 Md. App. 627, 288 A. 2d 215 (1972), cert. denied, 266 Md. 745 (1972). It follows then that the addition of the word “felonious” is likewise a change in form only, and was properly allowed by the trial court without the appellant’s consent.

Lastly, the appellant urges that had he known the value of the store’s merchandise to be over $100 he might have prepared a different defense or adopted a different strategy. This complaint fails to impress us; the facts were available to him by discovery. Beyond that, if he was surprised by the amendments and unprepared to proceed with his defense, he could have requested a postponement of this portion of the trial. The granting of such a request in a nonjury trial would not have caused any serious delay in the disposition of the case. See Gyant v. State, 21 Md. App. 674, 321 A. 2d 815 (1974), cert. denied, 272 Md. 742 (1974).

Judgment affirmed.

Costs to be paid by appellant.


text:
    ALLEGHENY MUTUAL CASUALTY COMPANY v. STATE OF MARYLAND
    [No. 601,
    September Term, 1976.]

      Decided February 9, 1977.

    The cause was argued before Gilbert, C. J., and Menchine and Lowe, JJ.

      William T. Wood, with whom were Wood & Longest on the brief, for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Laurence Beck, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The abrupt cessation of the policy of benign neglect in enforcing bail forfeitures, wittingly or unwittingly allowed by the State’s Attorney’s Office of Montgomery County, by failure to follow through on bail forfeitures, has jolted the bondsmen. This appeal arises from a combination of the State’s Attorney’s insistence upon payment of the forfeitures and the circuit court’s declination to recommend to the Governor a remission of the forfeitures either in “whole or some part thereof.” See Md. Ann. Code art. 41, § 50.

The case subjudice actually involves twelve (12) different bail bond forfeitures arising from a dozen criminal cases called to trial before the Circuit Court for Montgomery County. In each case, the accused, who had been released oh bail pending trial, failed to appear at the time and place designated, and the trial judge ordered the forfeiture of the bail.

Apparently as a result of an inquiry by Judge David Cahoon as to the status of the bail forfeiture situation, it was determined that there were a number of cases wherein Allegheny Mutual Casualty Company (Allegheny) was the surety for the bail, but, despite the forfeiture, no monies had been paid over to the Clerk of the Court.

Allegheny filed, in each case, identical petitions to strike the forfeiture, alleging in part that it was not notified that its bail had been forfeited. Most of the petitions also averred that the defendant had, at some subsequent time, been tried, the purpose of the bail was thus satisfied, and neither the State nor the County had incurred any “costs or expenses . . . as a result of the defendant’s failure to appear” at the time originally set for trial.

All cases were consolidated and were heard by Judge Richard B. Latham who rejected all petitions, save one.

In this Court, Allegheny posits trine reasons why it believes the forfeitures should be reversed, namely:

“I. The trial court erred in refusing to grant a Surety’s Petition to have certain bail forfeitures stricken when the Surety was afforded no notice that the bond forfeitures nisi's had been entered by the Court.
II. The trial court erred in refusing to grant a Surety’s Petitions to have certain bail forfeitures stricken when there were no actual expenses incurred for the defendant’s arrest, apprehension, or surrender in the cases.
III. Justice will be served by remanding each of the consolidated cases for a further hearing to determine the reasons for the non-appearance of the defendants below.”

I.

Allegheny is of the opinion that in order for there to be a valid forfeiture the surety must be placed on notice of the entry of the forfeiture. It seemingly likens the forfeiture to a civil adversary proceeding which would require notice to the opponent. Allegheny reasons that once they are placed on notice then Md. Ann. Code art. 27, § 6I6V2 (d) is triggered and the surety is allowed ninety (90) “days from the date of' failure to appear to produce the defendant in court before requiring any forfeiture of bail or collateral.”

Allegheny’s argument ignores the conditions of the very bonds that it posted to assure a defendant’s appearance before the court at the scheduled time. A bond provides substantially that the defendant and the surety are jointly and severally bound to pay the State a sum of money if the defendant fails to “well and truly make his appearance before” the court and to answer to the charges. The bond is not conditioned upon notice to the surety. If the defendant fails to appear, the surety has by statute ninety (90) days in which to produce him. Of course, the court may for good cause shown set aside in whole or part a forfeiture, but the burden of demonstrating the good cause is upon the surety. Md. Rule 777 g.

This Court, in Irwin v. State, 17 Md. App. 518, 302 A. 2d 688 (1973), stated that the purpose of forfeiture is not to punish the surety or to enrich the coffers of the State but rather to assure that the defendant will be found and brought to trial. In short, forfeiture is an incentive to the surety to see that his principal is present at trial. Irwin has no application to the instant case. Patently, if Allegheny did not know, as it says, of the forfeiture, it certainly did not have incentive to act to produce the defendant. That the defendants in the twelve cases involved in this appeal were ultimately located and tried was not because of any act on the part of Allegheny. Indeed, Allegheny seems to have been content to post the bonds and then forget the whole thing. It was only when called to make good the bonds that they awakened to what had occurred.

We think it the duty of the surety, be it corporate or individual, to follow the case on the docket and to keep itself abreast of the proceedings. We know of no rule of court or statute that requires the surety to be placed on notice by the court or clerk before the ninety-day grace period begins to run. As we see it, the surety has ninety (90) days from the time the bail is forfeited to produce the defendant. That ninety (90) days commences when the case is called, the defendant fails to appear, and the court announces the forfeiture. Of course, the court, even at the expiration of the ninety (90) days, may, in accordance with Md. Rule 777 g, ease the burden on the surety if justice requires. Whether justice does so require is a matter addressed to the sole discretion of the trial judge and will not be disturbed on appeal unless there is an abuse of that discretion.

II.

At the hearing on the forfeitures, Allegheny informed Judge Latham that, “Part of our stipulation would be that the Chief Deputy of the Sheriffs Department . .. would testify that he has reviewed ... all of the information in these [file] jackets with information in the Sheriff’s Office and there have been no costs incurred by the Sheriff or Montgomery County or anyone else in connection with the taking... of these Defendants.”

The judge was of the view that the Chief Deputy was unable to make such a statement with any degree of certainty. Judge Latham reasoned that the Deputy could say what the records of the Sheriffs office reflected, but he would be in no position to opine “costs the State of Maryland . . . [incurred in] the clerical salaries and judges’ salaries and salaries of people required to do additional work because .. . [a defendant] chose not to show up . .. [for trial].... I think it is unrealistic to suggest that the State of Maryland doesn’t incur costs and expenses as a result of a defendantf’s] not showing up for trial.”

At the time of the hearing, Md. Ann. Code art. 27, § G1('V2 (d) (1) read:

“Any court exercising criminal jurisdiction shall strike out a forfeiture of bail or collateral where the defendant can show reasonable grounds for his nonappearance. However the court shall allow a surety 90 days from the date of failure to appear to produce the defendant in court before requiring any forfeiture of bail or collateral.”

Although the statute was changed by 1976 Md. Laws ch. 913, effective July 1,1976, inasmuch as the instant case was heard and decided on May 5, 1976, the statutory change is not applicable hereto.

We observe that the record is completely devoid of a showing as to “reasonable grounds for ... [the] nonappearance” of the defendants who have been admitted to bail. One of the reasons, as we have said, for the striking of forfeitures is to encourage sureties to seek the prompt apprehension of bail jumpers. When, however, as here, the surety is not even aware of the nonappearance of a defendant because- of the surety’s neglect in following cases in which it posted bail, the prompt apprehension theory has no application.

Our review of the record discloses that the surety’s casual air of indifference led to its losses. We are unable to state that Judge Latham abused his discretion in declining, under the circumstances of this case, to strike the forfeitures.

III.

Allegheny now would have us reverse and remand in order for it to show “reasonable grounds” for the nonappearance of the defendants when their respective cases were called for trial. Why it did not do so at the hearing eludes us. In any event, we perceive no reason for Allegheny’s being allowed a second bite of the apple. It had an opportunity to present its case fully to Judge Latham. That it did not do so does not move us to remand the case and now permit Allegheny to endeavor to show, if they can, “reasonable grounds” for nonappearance.

Judgments affirmed.

Costs to be paid by appellant.

      . Md. Ann. Code art. 27, § 6I6V2 (d) (1) now reads:
      “Any court exercising criminal jurisdiction shall strike out a forfeiture of bail or collateral where the defendant can show reasonable grounds for his nonappearance. However the court shall allow a surety 90 days from the date of failure to appear to produce the defendant in court before requiring the payment of any forfeiture of bail or collateral. The court shall strike out a forfeiture of bail or collateral deducting only the actual expense incurred for the defendant's arrest, apprehension, or surrender if the defendant is produced in court and if the arrest, apprehension, or surrender occurs more than 90 days after the defendant’s failure to appear,”

      The changes made by 1976 Md. Law ch. 918 appear in italics.


author: Lowe, J.,

text:
    MOSES DAVID HOES v. STATE OF MARYLAND
    [No. 609,
    September Term, 1976.]

      Decided February 9, 1977.

      The cause was argued before Gilbert, C. J., and Menchine and Lowe, JJ.

      John G. Gill, Jr., Assigned Public Defender, with whom was Chris Marder on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and De Lawrence Beard, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The primary question to be answered here is whether the shooting of a “common law” wife by a one-armed man twice within five years could constitute a “plan or scheme” to maim her.

Appellant, who is handicapped by the loss of one arm, pled guilty to one count of assault and battery and was convicted by a jury of the Circuit Court for Montgomery County of assault with intent to maim, carrying a weapon openly with the intent to injure and resisting arrest. The evidence showed that, after having overimbibed alcoholic beverages, appellant went home and engaged in a dispute with Julia Braxton, with whom he had lived for 23 years, and with whom he was living at the time of trial. Although appellant admitted having a discussion with her immediately before the shooting incident (because she would not permit him to accompany her shopping as a result of his inebriated condition) he denied that the discussion amounted to an argument. He also admitted that he had “throwed up the [shot] gun”, and that “the gun went off”, but denied that he had intended to shoot her. His recollection was hazy:

“I remember something about I throwed up the gun, you know, you know what I mean, the gun went off, but I wasn’t going to shoot her, though."

But he did.

The police came and apprehended him, but only after a fracas during which he was choked and struck on the head with a flashlight and a pistol was his arrest satisfactorily consummated. The difficulty with containing appellant’s resistance was attributed partly to his size, but mostly to the officer’s inability to determine how to handcuff a one-armed man. The resistance subsided under the duress described and the dilemma of how to restrain him dissipated.

Appellant denied neither the shooting nor the resistance. His defense was that he did not “intend” to commit the crimes charged.

In order to overcome this defense anticipatorily and to help meet its burden as to the specific intent crimes with which appellant was charged, the State sought to elicit from Julia Braxton that appellant had shot her twice in the side four or five years before. This evidence was admitted by the court over the vigorous objection of appellant, as evidence of a “plan and scheme, prior conduct of the same character.” Appellant perspicuously argued below and on appeal that the evidence should have been excluded because the jury might be misled into a conviction because of the offense upon which appellant was not indicted or then on trial, or that he would be prejudiced by confrontation with an offense for which he was not prepared to defend. These were among the reasons for the general rule of exclusion, expressed by the Court of Appeals in Curry v. State, 117 Md. 587, 593:

“ ‘Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it, and by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done.’ ”

The State, on the other hand, counters that the evidence was admissible, if not upon the ground given by the court, then upon either of two exceptions to the exclusionary rule, intent or absence of mistake or accident:

“The evidence of the other crime, involving as it did identical parties and circumstances {i.e. shooting), was relevant here to show intent and absence of mistake or accident. It clearly bolstered the State’s contention that because he had done it before, when the Appellant picked up the shotgun, loaded it and fired it at Ms. Braxton, he intended to hit her and did not do so mistakenly or accidentally.”

Ross v. State, 276 Md. 664, is the most recent case to set forth the rule for excluding prior criminal acts:

“The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. Harrison v. State, 276 Md. 122, 345 A. 2d 830 (1975), MacEwen v. State, 194 Md. 492, 500, 71 A. 2d 464 (1950); Young v. State, 152 Md. 89, 91, 136 A. 46 (1927); Weinstein v. State, 146 Md. 80, 88, 125 A. 889 (1924); Wethington v. State, 3 Md. App. 237, 240, 238 A. 2d 581 (1968); Gorski v. State, 1 Md. App. 200, 202, 228 A. 2d 835 (1967). This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ C. McCormick, Evidence § 190 (2d ed. 1972).” Id. at 669,

and its exceptions;

“There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164, 150 A. 278 (1930); Cothron v. State, 138 Md. 101, 110, 113 A. 620 (1921); Chandler v. State, 23 Md. App. 645, 650, 329 A. 2d 430, cert. denied, 274 Md. 726 (1974); Wethington v. State, Gorski v. State, both supra. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, Berger v. State, 179 Md. 410, 20 A. 2d 146 (1941); and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. C. McCormick, Evidence § 190, supra.” Id. at 669-670.

But the admissibility of such evidence, even when offered as being within an exception, is looked upon askance, as highly suspect because of its potential for prejudicial influence upon the jury:

“ . . . the introduction of evidence which shows other offenses by the accused should be subjected to rigid scrutiny by the courts because of the great potential for danger which characterizes it. Berger v. State, Young v. State, Weinstein v. State, Gorski v. State, all supra; see Wethington v. State, supra. As we said in Berger:
. . To come within the exception to the rule that evidence of previous offenses is irrelevant, there must appear between the previous offense and that with which the defendant is charged some real connection other than the allegation that the offenses have sprung from the same disposition. The exception does not go to the extent of sanctioning the admission of evidence of the ‘propensity’ of the accused to commit crimes similar to that for which he has been indicted. . . .’ 179 Md. at 414 (emphasis added).’ ”

Id. at 671.

The purpose of this “rigid scrutiny” of evidence offered under an exception, even when there is some “real connection”, is to determine whether the proffer of a past crime or crimes is sufficiently necessary to the State’s case that the need would outweigh the prejudicial potential to the accused. We recognized this balancing process in Mollar v. State, 25 Md. App. 291, 294, quoting McCormick, Evidence § 190 at 453 (2nd ed.):

“ ‘[S]ome of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.’ ”

Although phrased negatively, the same sort of test was applied by the Court of Appeals in Young v. State, 152 Md. 89, 91-92:

“But whatever may be the object, ‘proof of a distinct substantive crime is never admissible unless there is some logical connection bet ween the two, from which it can be said one tends to establish the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burden a trial with multiplied issues, that tend to confuse and mislead the jury. * * * From the nature and prejudicial character of such evidence, it is obvious it should not be received unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner. It will be found that the courts have always professed to put the admission of the testimony on the ground that there was some logical connection between the crime proposed to be proved other than the tendency to commit one crime as manifested by the tendency to commit the other.’ 8 R. C. L., sec. 200, p. 206. See also 1 Wigmore on Evidence, sec. 304.” (emphasis added).

In other words, we must decide if evidence of the prior shooting was relevant to the crimes charged, and if so, whether its potential prejudice outweighs its relevance.

The cases dealing with admissibility of prior criminal acts are narrowly decided. Indeed, the results often appear contradictory, for the basis upon which such evidence is found relevant is seldom clearly articulated. In two cases involving prosecution of doctors for illegal abortions, for instance, the Court of Appeals held that evidence of prior conduct of like nature should have been excluded in one case but was admissible in the other.

In Meno v. State, 117 Md. 435,440 the evidence was held to be inadmissible, although its erroneous admission in the case was harmless:

“The State attempted to prove by the witness Ludi, that the accused had told him that he had performed operations on or treated other girls as showing a familiarity on the part of the traverser with what could be done to rid a woman of a child. This evidence was admitted over the objection of counsel, and this ruling of the Court was made the subject of the 8th exception. This evidence was inadmissible and should have been excluded.”

In Wilson v. State, 181 Md. 1, 3, by contrast, such evidence was held clearly admissible:

“Dr. Wilson complains because Mrs. Stanley testified that she saw him in November, 1940, and when she saw him again on July 31, 1941, she said to him: ¶ guess you know what I am here for.’ He contends that this testimony prejudiced the jury against him, because they could infer from it that he caused an abortion in November, 1940. It is a general rule that when a person is placed on trial for an offense, he should not be prejudiced by the introduction of evidence of other independent acts of wrongdoing. But while guilt cannot generally be established by proving that the defendant has committed other crimes, nevertheless it is firmly established that evidence of declarations and acts may be admitted to show intent, or a common scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. Young v. State, 152 Md. 89, 136 A. 46; Meno v. State, 117 Md. 435, 440, 83 A. 759. The abortion statute in Maryland does not apply where a physician superintends a case of abortion occurring spontaneously as the result of an accident, constitutional debility, or any other natural cause. So, in an abortion case, where guilty intent is an essential element of the crime charged, the State can prove a relevant fact which tends to show the defendant guilty of the crime charged, notwithstanding that it may also show him guilty of a similar distinct offense. People v. Popescue, 345 Ill. 142, 188 N. E. 739, 77 A. L. R. 1199, 1209. Such evidence is admitted not because it is proof of another crime, but because of its relevancy to the charge in issue. For a person cannot, by multiplying his crimes, diminish the volume of competent testimony against him. State v. Adams, 20 Kan. 311, 319; State v. Sullivan, 139 Ore. 640, 652, 11 P. 2d 1054, 1058.” (emphasis added).

We find a “logical connection”, as discussed by Young v. State, supra, and Wilson v. State, supra, present in this case. As appellant strenuously contends in his brief (for other purposes), at least two of the crimes with which appellant was charged are “specific intent” crimes, i.e., crimes requiring a specified intention in addition to the intentional doing of the actus reus itself. These two crimes were assault with intent to murder and assault with intent to maim. It was necessary that the State prove: (1) an assault on Julia Braxton (2) made by the appellant (3) with the intent to murder or maim her. The relevance of the prior conduct rests upon two things: the similarity of the method of assault and the fact that it was upon the same victim. That he had shot her before in like manner is inferentially relevant to his intent to do so this time, especially in light of his admission that he had discharged the firearm. As the State pointed out, the fact that appellant had shot M’s. Braxton a few years earlier makes it less likely that shooting her this time was an accident or mistake. Had the prior assault been directed toward another victim, it would have had little or no relevance in evaluating his intent towards M’s. Braxton. Indeed, such an inference of intent to do that which was done would be greater the more often it had occurred, in like manner and to the same person. The similarity of nature and victim creates the relevant interrelationship.

The case of Jones v. State, 182 Md. 653, provides persuasive precedent that the evidence at issue here is relevant. Jones, charged with murder in the first degree, objected to the introduction of evidence that he had assaulted the deceased on two prior occasions, and that one of the assaults had resulted in a conviction for assault with intent to murder. Rejecting his complaints, the Court said:

“These other crimes of the accused, having been committed on the same person, are so closely connected to the offense charged as to be evidence as to the intent and motive of the accused in this case. We therefore believe that the trial court was correct in admitting this evidence, the weight of it to be determined by the jury.” Id. at 657.

Nor are we overly concerned in this case with the remoteness of the prior shooting time when we consider the purpose for which the evidence is admissible. That issue is subsumed in our search for relevance. As pointed out by I Wharton’s Criminal Evidence § 260, p. 622, it is:

“the nature of the prior crime and the crime charged and the logical interrelationship of such crimes are the controlling factors in determining whether a particular lapse of time is sufficiently substantial to make the prior crime too remote.”

Having thus determined that the evidence of the prior incident is relevant to prove an essential element of the incident for which appellant was charged, we must decide if the potential for prejudice outweighs its need. See Mollar, supra. As indicated, the prejudice with which we are concerned is not that which simply enhances the State's case or harms appellant’s defense. All evidence of an inculpatory nature is “prejudicial” in that sense. Here, we are concerned with the likelihood that evidence of a prior offense will persuade the jury that appellant is a “bad man”, and because of his prior evil conduct or criminal act, the probability is greater that he committed the crime charged. In other words, the jury will be predisposed to convict his “reputation” upon the proverbial inability of a leopard to change his spots theory, rather than determining guilt or innocence upon the evidence directly related to the specific crime charged. It is the court’s responsibility to offset or avoid as well as it can, the inherent human tendency to substitute a predisposition of guilt for the constitutional presumption of innocence when an accused’s reputation as a “bad man” becomes known. It is for this reason that we were admonished in Ross that such evidence should be subjected to rigid scrutiny.

The factors of importance militating toward admissibility in this case and diminishing the possibility of conviction for the wrong reasons are four:

1. The pertinent crimes charged were specific intent crimes. The issue of specific intent was central to both the State’s case and appellant’s defense, and there was clearly a need to present all relevant evidence of intent to the jury. See McCormick, supra, § 190 at 453. The only other evidence of intent available to the State was whatever intent can be inferred from the current shooting itself. Moreover, if appellant had in the past threatened M’s. Braxton’s life or threatened to maim her, such verbal conduct would have been both relevant and admissible to show his intentions when he carried out his threats at a later date. We are unable to see why it is more prejudicial to show intent by consummated conduct from which he could inferentially have attempted such acts, than it would have been to introduce as yet unconsummated verbal threats that he would do so at a later time.

2. It is significant in our balancing process to note that appellant conceded having held and having discharged the gun. Neither the corpus delicti nor appellant’s participation as the causative factor are in dispute. Indeed, on cross-examination, appellant admitted his guilt at least to the extent of an assault and battery on M’s. Braxton. Had either appellant’s criminal agency or the corpus delicti of the crime been in doubt, potential prejudice would have been greater and may well have offset the State’s need to show intent by prior conduct.

3. No objection was raised here or below to the quality of evidence that the prior shooting occurred or that appellant was the perpetrator. The victim herself testified to the previous shooting. Had the evidence on either point been less convincing, the prejudicial potential may have been increased and its relevance diminished. See McCormick, supra, § 190 at 453.

4. Finally, it is at least noteworthy that the State did not flaunt the prior act by repetitious inquiry and it did not argue it extensively. Beyond the initial single response there was no further mention of the prior shooting by anyone except the trial judge, and then only reluctantly upon appellant’s insistence for a limiting instruction. Even there appellant can point to no prejudice, for the judge carefully narrowed the jury’s consideration so as to avoid “directing the attention of the jury from the [issue] before it . . .” Curry, supra, 117 Md. at 593.

Nor do we find prejudicial error because the judge admitted the testimony for the wrong’reason, i.e., to show the exception of showing a “plan or scheme” rather than the proper exception of showing “intent”. The wrongfully assigned exception would not have been before the jury but for the express request of appellant:

“MR. GILL: If it please the Court, first of all, I would request the Court to give a limiting instruction on the evidence of the prior crime that Mr. Beard introduced through Julia Braxton. The limiting instruction would be they cannot consider that as evidence that he is guilty on this occasion or because he is a generally bad man, but only for the specific purpose for which Your Honor admitted it, which I think you said was common scheme or plan.
THE COURT: Yes.
MR. GILL: So for that limited purpose. I still object. I don’t want to withdraw my objection to that evidence, but I think we need an ameliorating instruction.
THE COURT: I will do it if you want it. I did not do it, but if you want it I will be glad to do it.”

Appellant received precisely that which he requested. The mistaken reason for admitting the evidence was harmless beyond a reasonable doubt, see Dorsey v. State, 276 Md. 638, 646-659, and in the absence of an exception to the instruction assigning the wrong reason, there was no error. Md. Rule 756 g.

Appellant next questions:

“Whether the court, by giving an incorrect and misleading definition of specific intent, and then refusing to give a corrective instruction requested by counsel, committed reversible error, given that specific intent was an element in Counts 2, 5, and 8?”

We think not. Appellant’s complaint is that the court declined to give his numbered instructions (which are not in the record), apparently taken by him from Maryland Criminal Jury Instructions and Commentary, 1975 Ed. Although the judge’s instructions are not a model to emulate in preference to the text models, we think that when read as a whole, they conveyed the message to the jury that specific intent was required for the specific intent crimes of which appellant was convicted, i.e., assault with intent to maim and carrying a weapon openly with intent to injure. The instructions fairly covered all of the issues requested. See Gordon v. State, 14 Md. App. 245, 259.

We are further convinced that the court properly refused to grant a specific intent instruction for resisting arrest. If there is no right to resist a lawful arrest, Jordan v. State, 17 Md. App. 201, 206-209, it follows that an accused’s intent while resisting is not a necessary element for the State to prove.

The last issue raised by appellant was the sufficiency of the evidence to convict him of assault with intent to maim. We have held that the pointing of a gun toward another human and discharging it in random fashion is sufficient to support inferences of intent to do grievous bodily harm. Mahoney v. State, 13 Md. App. 105, 110. That he specifically intended that bodily harm to have been directed at the victim may be inferred from the prior shooting of her in like manner. The evidence was sufficient to show that appellant did just that.

Judgments affirmed.

Costs to be paid by appellant.

      . The relationship must have been an enduring one. M’s, Braxton returned to the extramarital bed after both instances and bore appellant 3 children, ages 10 to 21, during the 23 years of their cohabitation.

        . It_is noteworthy that in Wilson the indication or evidence of a prior crime, if committed, was upon the same person who was the victim of the crime for which the accused was being tried.

      . While the Court in Ross, supra, listed intent and absence of mistake as separate exceptions, they clearly often overlap, as here.

      . We recognize that the evidence of the prior shooting was elicited long before appellant took the stand and denied intent, and that it was used as direct evidence rather than rebuttal. While it is conceivable that this facet may increase the prejudicial effect of evidence of other offenses in a proper case, such is not the situation here. Moreover, in Polisher v. State, 11 Md. App. 555, 585, we pointed out that the State is not required to establish prima facie every element of the crime charged before it may introduce evidence of prior offenses, for it is sometimes that very evidence which helps to prove some elements of the crime currently at issue.