author: Moylan, J.,

text:
    LORENZO SIMPSON v. STATE OF MARYLAND
    [No. 493,
    September Term, 1976.]

      Decided January 3, 1977.

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

      AlanJ. Bloom, Assigned Public Defender, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Bernard A. Baum, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Robert Scherr, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Lorenzo Simpson, was convicted by a Baltimore City jury, presided over by Judge Sol J. Friedman, of armed robbery. The single contention he raises upon this appeal is that the trial court erred in giving an instruction on the missing witness rule.

The facts were such that, barring an appropriate explanation as to why a witness was not called, the missing witness instruction would have been appropriate. The robbery victim, Joseph Frazier, Jr., testified that he, a prospective purchaser of marihuana, met the appellant immediately outside the home of a prospective seller of marihuana. Conversations ensued between Mr. Frazier and the appellant about the possibility of Mr. Frazier’s purchasing some cocaine. According to Mr. Frazier, the two made a trip to Mr. Frazier’s home where Mr. Frazier picked up $300. The appellant ultimately took the $300 from Mr. Frazier at knifepoint. Frazier immediately made a complaint to the police describing the appellant, the weapon, the robbery and the automobile. Within a relatively few minutes, the police spotted the automobile and stopped it. The appellant and two other persons were in the automobile. The appellant was arrested. The knife was recovered from the front seat of the automobile. Three hundred dollars was recovered from the person of the appellant.

The appellant took the stand and gave an entirely different explanation for the loss of money by Mr. Frazier. According to the appellant, Frazier was interested in purchasing heroin and sought information from the appellant to effectuate that purchase. The appellant introduced Frazier to a man by the name of George. According to the appellant, Mr. Frazier did give the appellant a $100 bill in order to purchase some liquor from a liquor store. The seller “George” then approached the car wherein the appellant and Mr. Frazier were sitting. “George” was in the company of another individual named Ricky Deese. Mr. Frazier received the ostensible narcotics from and delivered the money to this Ricky Deese. Frazier and the appellant drove off. Frazier tested the narcotics, realized that he had been tricked by being delivered a white powder which did not contain any narcotics and became very angry. An argument ensued between the appellant and Mr. Frazier and Mr. Frazier left the automobile.

The so-called “missing witness”' had to be either “George” or Ricky Deese. The question of who was being referred to as a “missing witness” was made very clear in the closing argument of the prosecutor:

“Now, the Judge is going to instruct you as to a law called the missing witness rule. Now, the missing witness rule says that the failure to call... Now, the Judge will instruct you and this is my argument as to what this rule is. The failure to call a material witness raises a presumption that the testimony of this person would be unfavorable. All right. Why do I mention this now? Because I have heard two names mentioned by the Defendant, this Ricky Deese and George. I asked him, ‘Who is Ricky Deese?’ He says, ‘Ricky Deese lives in my neighborhood,’ when I asked him where he lives. This is supposedly the man that was, Ricky Deese and a George were supposedly the two men that weré involved in the Defendant’s part of the story by giving Mr. Frazier heroin and so forth. Where is Ricky Deese today? Where is this George? If this is exactly what happened, why didn’t the Defendant bring him in to testify that this is what happened? Why? The missing witness rule. The missing witness rule says, as I stated, failure to call a material witness. I think he is material. I think both are material. There is question that the Defendant could have found them. He says, ‘He lives in my neighborhood, Ricky Deese,’ and he knows where George lives. That’s no reason. Why isn’t he here to so testify and help this man if that is what happened? Failure to call a material witness raises a presumption that their testimony would be unfavorable. The Judge will instruct you as to this.”

The appellant made known his objection to this discussion of the law even from the mouth of the assistant prosecutor. The court overruled him. The court in its own instructions said the following:

“Evidence has been presented in this trial which indicates that an available witness who had knowledge of the facts in issue in this case was not called to testify. You are instructed that if either the State or the Defendant failed to call such a witness a presumption arises that his testimony would have been unfavorable to the party who did not call him. It is up to you to decide which party should have naturally called the witness. This rule does not apply when the testimony of the uncalled witness is purely cumulative and the witness is not in a better position to know the facts than those witnesses who were called nor does the rule apply when the reasons for not calling the witness are reasonable and proper.”

At the close of the court’s advisory instructions, a bench conference was held. Appellant’s counsel made known his objection to the “missing witness” instruction. The court gave the following supplementary instruction:

“You will recall, Ladies and Gentlemen of the Jury, that I advised you as to the missing witness rule and I read to you the law as to a missing witness and I instructed you that when a witness is not called, a presumption arises that the testimony of that missing witness would be unfavorable to the party who did not call him. I want to make it perfectly clear to the Ladies and Gentlemen of the Jury that you have to decide whether or not the persons who were not called, if in fact there were persons who were not called, if their testimony would have been cumulative, just would have added to more which was told to you from the witness stand or if you would believe that that would have been material as far as that person who did not call the particular witness. And you would then have to apply the law based upon your good judgment of whether or not the fact that the witness was not called was reasonable and proper.”

Although the present case is factually distinguishable from Christensen v. State, 274 Md. 133, we believe that the broader principle undergirding the Christensen decision would govern this set of facts ás well as that set of facts. In setting forth the exceptional situations, whereunder the “missing witness” rule would have no applicability, Christensen, at 139-140, quoted with approval from 1 Wharton, Criminal Evidence (13th ed. C. Torcia 1972), § 148, p.251:

“No inference arises if the person not called as a witness by the defendant is a codefendant or an accomplice not presently on trial, or has already been convicted of the same offense as that for which the defendant is being prosecuted.”

In Christensen, the “missing witness” was an apparent accomplice of the defendant there. In this case, neither “George” nor Ricky Deese were codefendants or accomplices in the armed robbery for which the appellant was standing trial. The defense version of the case, however, implicated them most definitely in the equally serious felony of selling heroin. Under the circumstances, the philosophy which permeated and undergirded the court’s decision in Christensen would govern here as well. The court there reasoned, at 140:

“The reason behind the rule is not difficult to divine. Defense counsel have been known to believe that the military’s advice to its personnel that in the event of capture one should disclose only name, rank, and serial number has its merits in criminal cases in that what one does not say cannot be used against him. Accordingly, counsel for Christensen probably was correct in believing that, if Paine were summoned to the witness stand by Christensen, Paine’s counsel might well advise him to invoke his constitutional right against self-incrimination, notwithstanding the fact that his testimony might serve to corroborate that of Christensen and that if he testified Paine might claim that the incriminating testimony of the prosecutrix was untrue. Under the facts of this case, a defendant might well be damaged if an accomplice or codefendant were called to the stand and then did not testify, claiming his privilege against self-incrimination. In short, if the exception to the rule for a codefendant or an accomplice did not exist, the defendant would be faced with a Hobson’s choice incompatible with our concept that a defendant is innocent until proven guilty beyond all reasonable doubt and that the burden of proof never shifts from the State.”

Under the reasoning of Christensen, we hold that the “missing witness” instruction should not have been given in this case and that the instruction, in these circumstances, was reversible error.

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

      . Notwithstanding the supplementary instruction and lack of explicit additional objection thereto, we deem the point preserved for appellate review because it is clear that the appellant was objecting to the very giving of the “missing witness” instruction and not to the substance of that instruction.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    EASTGATE ASSOCIATES et al. v. LEONARD APPER et ux.
    [No. 495,
    September Term, 1976.]

      Decided January 3, 1977.

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

      JohnP. Corderman for appellants and cross-appellees.

      Darrow Glaser for appellees and cross-appellants.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal involves a new wrinkle in an old suit.

On January 13,1972, Leonard Apper and his wife, Beverly Apper, filed suit in the Circuit Court for Washington County asseverating that Leonard Apper sustained personal injury on or about February 11,1969 as a result of the negligence of Eastgate Associates and others. Beverly Apper claimed loss of consortium. Eastgate filed a third-party claim against Harold L. Jones, trading as Jones’ Wallpaper, Linoleum & Tile Service. Because a recitation of the facts of the negligence action is not necessary to a discussion of the issue here involved, we shall delete reference to them. A full recitation of the factual background of the negligence claim may be found in Apper v. Eastgate Associates, 28 Md. App. 581, 347 A. 2d 389 (1975), rev‘d on jurisdictional grounds, 276 Md. 698, 350 A. 2d 661 (1976).

On November 26,1974, the case was called to trial before a jury in the circuit court, and, at the conclusion of the Appers’ evidence, the trial judge granted a directed verdict in favor of Eastgate. The Appers noted an immediate appeal to this Court. We pointed out in Apper v. Eastgate Associates, 28 Md. App. at 585, 347 A. 2d at 392, that no judgment had been entered on the verdict, and, hence, there was nothing to appeal. In short, we observed that the appeal was premature. We then invoked Maryland Rule 1071 and discussed .. the facts and the applicable law in the light of the substantial merits of the case.. . We did so because we believed that we would thereby “save judicial time and unnecessary expense” and that “our action” would be “in the best interest of the administration of justice.” In our discussion, we determined that the granting of a directed verdict was unwarranted because the doctrine of res ipsa loquitur was applicable to the case. Speaking through then Chief Judge Orth (now an Associate Judge of the Court of Appeals), we concluded the opinion by saying:

“We have, as we indicated, discussed the facts and the applicable law in the light of the substantial merits of the case even though the appeal is premature. We noted that we would fashion a result to give due recognition to those substantial merits. Although we must dismiss the appeal, we remand the case with direction that judgment be entered in favor of appellees for costs. For a period of thirty days after the entry of judgment, the trial court has revisory power and control over it. Rule 625, § a. Upon a proper and timely motion, the trial judge should strike the judgment and order a new trial. We observe that the order entered by this Court and the opinion on which the order is passed shall be conclusive as to the points finally decided thereby.” Id. at 595, 347 A. 2d at 397-98 (footnote omitted).

Eastgate sought and obtained a writ of certiorari to the Court of Appeals. While recognizing that both the Court of Appeals and this Court had “... previously utilized Rules 871 and 1071 respectively in issuing a mandate on the merits of a case where there was no appealable order and hence no jurisdiction in the appellate court...”, the Court of Appeals decided that we were without jurisdiction to opine upon the merits of the case. 276 Md. at 703-04, 350 A. 2d at 664-65. Our dismissal of the Appers’ appeal was deemed to be correct, but our explication on the merits turned out to be a gratuitous utterance, devoid of substantive meaning. The case was remanded to us with explicit instructions that we vacate our mandate, which commanded the circuit court to conduct further proceedings in accordance therewith, and that we dismiss the appeal. On March 10, 1976, we complied fully with the mandate of the Court of Appeals. Seven days later, the trial judge entered judgment on the verdict of November 26,1974.

The Appers then moved, pursuant to Md. Rule 625 a, to “Set Aside Judgment.” Following a response thereto by Eastgate and argument of counsel, Judge Paul W. Ottinger, on April 7, 1976, granted the Appers’ motion, struck the judgment entered on March 17, 1976, and ordered a new trial. Eastgate appealed, posing the question, “Did the trial Court err in setting aside the judgment previously entered in favor of the Appellants and granting the Appellees a new trial under Md. Rule 625 ... [?]”

The Appers reply that Eastgate may not appeal from the striking of a judgment and the granting of a new trial pursuant to Md. Rule 625 a, inasmuch as such an order is interlocutory and not appealable. We agree, for the reasons stated infra, with the Appers that the matter is interlocutory and not appealable.

Md. Rule 625 a provides:

“For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.”

The motion to set aside the judgment entered on March 17, 1976 was granted on April 7, 1976 and, patently, is within the thirty-day period prescribed by the rule.

The Court of Appeals has held in a series of cases that when a motion to strike a judgment is made within the time prescribed by Md. Rule 625 a the granting of or refusal to grant the motion is within the sound discretion of the trial court. Gay Investment Co. v. Angster, 231 Md. 318, 321, 190 A. 2d 95, 96 (1963); Williams v. Snyder, 221 Md. 262, 267, 155 A. 2d 904, 907 (1959); Tiller v. Elfenbein, 205 Md. 14, 18, 106 A. 2d 42, 44 (1954); Corbin v. Jones, 199 Md. 527, 528-29, 86 A. 2d 911, 912 (1952); Norris v. Ahles, 115 Md. 62, 65, 80 A. 654, 655 (1911); Laubheimer v. Johnson, 98 Md. 685, 688, 57 A. 539, 540 (1904). See also J.C. Penney Co. v. Harker, 23 Md. App. 121, 128-30, 326 A. 2d 228, 233-34 (1974).

Judge Digges, writing for a unanimous Court with respect to Part III of Davidson v. Miller, 276 Md. 54, 85-86, 344 A. 2d 422, 440-41 (1975), said, “. . . [W]e hold that ordinarily in a civil proceeding the trial court possesses the power to reconsider and correct any of its rulings . . . until a final judgment becomes enrolled. McLaughlin v. Ogle, 53 Md. 610 (1880) (today, under Maryland Rule 625, a judgment becomes enrolled thirty days after its entry)----”

The General Rules of Practice and Procedure, the predecessor to the current Rules of Procedure, provided in Part Two, VI, Rule 1 as follows:

“For a period of thirty (30) days after the entry of any judgment, order or decree, final in its nature, or thereafter pursuant to motion filed within such period, the Court shall have the same revisory power and control over such judgment, order or decree as it had during the term at which it was entered under the practice heretofore existing. After the expiration of such period the Court shall have the same revisory power and control over such judgment, order or decree as it had after the expiration of the term at which it was entered under the practice heretofore existing.”

The rule was amended on July 12, 1965, effective September 1,1965, to what is now known as Md. Rule 625 a. As we see it, Md. Rule 625 a is for all practical purposes the same in essence and effect as its forerunner.

During the life span of General Rules of Practice and Procedure, Part Two, VI, Rule 1, the Court of Appeals had the occasion in Tiller v. Elfenbein, supra at 18, 106 A. 2d at 44, to comment upon the appealability vel non of a trial court’s striking of a judgment within the thirty-day period specified in the rule. The Court said, “Both before and after the adoption of this rule, we have held that the court’s action on a timely motion to strike, before a judgment is enrolled, is discretionary and not appealable.”

The net effect of granting a motion to strike a judgment and awarding a new trial is to restore the parties to their prior position as if no previous trial had been held. Tiller v. Elfenbein, supra; Snyder v. Cearfoss, 186 Md. 360, 367, 46 A. 2d 607, 610 (1946).

We think Tiller to be dispositive of the matter now before us. The striking of the judgment within the thirty-day period permitted by Md. Rule 625 a is an interlocutory order. It restored the parties to the same status they had before the case was tried. We repeat what was said for the Court of Appeals by Judge Jones in Laubheimer v. Johnson, supra at 688, 57 A. at 540, that:

“In making the motion to strike out the judgment . . . the appellees accompanied the same with reasons and grounds therefor which the Court, in the exercise of its discretion, must have deemed sufficient to justify its action. The facts of the case which have been recited show the appeal was taken from this exercise of discretion.”

Accordingly, we hold that the appeal in the instant case does not lie and must be dismissed as we are without jurisdiction to entertain it. Eastgate Associates v. Apper, 276 Md. 698, 350 A. 2d 661 (1976).

It follows that we do not consider the appellees’ cross-appeal on the merits.

Appeal dismissed.

Costs to be paid by appellants.

      . Also named as defendants were M. Elizabeth Ribar, C. Joseph Molinaro, William H. Deck, David W. Moore, M. Max Leder, and Quality Courts Motels, Inc., all collectively referred to herein as “Eastgate.”

      . Jones died while the litigation was pending, and his surviving widow, upon suggestion, was substituted in her capacity as personal representative as the third-party defendant.

      . Chief Judge Murphy concurred in Parts I and III of Davidson v. Miller but dissented with respect to Part II, which ruled unconstitutional the then automatic removal of civil cases.


author: Powers, J.,

text:
    DONALD W. ARMES et al. v. WILLIAM R. COOK et al.
    [No. 511,
    September Term, 1976.]

      Decided January 3, 1977.

      The cause was argued before Powers, Menchine and Moore, JJ.

      Frank Sacks for appellants.
    No appearance for appellees.
   Powers, J.,

delivered the opinion of the Court.

This case was initiated by the filing in the Superior Court of Baltimore City, on 17 September 1973, of a declaration claiming damages for personal injuries alleged to have been sustained in a motor vehicle collision in Fairfax County, Virginia. Plaintiffs were Donald W. Armes, joined by his wife, Mary Armes, and James N. Miller, all of Baltimore. Armes and Miller had been passengers in an automobile driven by William R. Cook, of Baltimore, who was named as one of the defendants. Other defendants were a truck driver, with an address in Colorado, and the corporate owner of the truck, with an address in Missouri.

Defendant Cook was served, and filed a general issue plea. On a preliminary motion, judgment was entered for the trucking company. The driver was never served. Although the case remained alive against Cook, no proceedings of record had been taken between 11 March 1974, and 24 December 1975, when the clerk of the court sent notification to the parties that as provided by Maryland Rule 530 an Order of Dismissal for Lack of Prosecution would be entered after 30 days, unless a motion were filed under section c. of Rule 530.

Through counsel, the plaintiffs invoked the discretion given to the court in Rule 530, § c., and filed, on 14 January 1976, a motion to suspend the operation of the Rule. On the same day Judge Shirley B. Jones signed an order which read:

“ORDERED that the operation of Rule 530 be and it is hereby suspended in the above captioned case for a period of 90 davs days from the date of this Order. If not tried within said 90 days, the case shall be dismissed. SBJ”

The part of the order which is underlined was handwritten by Judge Jones. Counsel filed with the clerk a request that the case be placed upon the Consolidated Jury Trial Docket.

The docket shows this entry, made 20 April 1976:

“Dismissed under Rule 530 of the Maryland Rules of Procedure for lack of prosecution. Judgment absolute in favor of the defendants for costs.”

On 26 April 1976 the plaintiffs filed a motion to “Overturn the Dismissal” and reinstate the case. The motion alleged that a trial date of 2 June 1976 had been set. The motion was heard before Judge Jones on 11 May. On 26 May 1976 she denied the motion. In a brief memorandum Judge Jones said:

“Plaintiffs’ counsel contends in the present motion that he was advised by the Assignment Office that the case would be assigned in numerical order for trial on June 2, 1976, and that the case would not be dismissed because it had been assigned for trial. If counsel relied on such advice, as he claims to have done, such reliance was misplaced. The terms of the suspension were made a part of the January 14th order pursuant to Rule 530 c., and were abundantly clear. There is no showing, and indeed no claim that a trial date within the prescribed time could not have been obtained pursuant to that order. The act of simply obtaining any trial date did not comply with the order.
“In the judgment of this court, Rule 625 is not intended under circumstances such as these to abrogate the intent of Rule 530. This intent has been abundantly enunciated by the appellate courts.”

The appeal before us brings up only the lower court’s denial of the motion to reinstate the case.

Presumably the motion, filed within thirty days after the entry of the judgment, invoked the discretionary revisory power and control over such judgment committed to the court by Maryland Rule 625, § a. The discretionary power to suspend or not to suspend the operation of Rule 530, discussed by the Court of Appeals in Stanford v. District Title Ins. Co., 260 Md. 550, 555, 273 A. 2d 190 (1971), had already been exercised by Judge Jones, favorably to the plaintiffs, upon what she termed “very minimal cause shown”.

. It appears that the Rules do not contemplate a second discretionary judicial look at a case after the entry of a judgment of dismissal for failure to comply with the terms of an earlier order suspending the operation of Rule 530, and granting the “brief reprieve” referred to in Stanford.

In Pappalardo v. Lloyd, 266 Md. 512, 295 A. 2d 221 (1972), a notice of contemplated dismissal under Rule 530 had been sent; the plaintiffs had moved the court to suspend the operation of the Rule; the lower court had entered an order suspending the operation of Rule 530, but had also ordered that the Rule would be enforced unless the cause were set for trial by a specified date; the date had passed, and the case had not been set for trial; and the court had ordered the case dismissed for want of prosecution. The plaintiffs had moved to reinstate the case, and their motion had been denied. The Court of Appeals said, at 514-15:

“This case was ripe for dismissal and the notice required by the Rule was given April 26, 1971. The Order which suspended the operation of the Rule set forth that the suspension was conditioned upon a specific act to be performed by plaintiffs’ counsel. When they failed to comply within the time allowed, the case was in effect dismissed upon the expiration of the time fixed in the Order. The formal Order of Dismissal entered by the court on January 7, 1972 required no further notice and simply reduced to writing what was an accomplished fact.”

If we apply Pappalardo as we read it, the dismissal of the case now before us became an accomplished fact by the operation of the self-executing provisions of Rule 530, and there was no further room for the exercise of discretion. If, on the other hand, a motion to reinstate a case after entry of a judgment of dismissal under Rule 530 requires the court to take another discretionary look at it, Judge Jones did so. Her memorandum makes it clear that she found no good cause to support the motion to reinstate the case. We hold that her denial of the motion was not an abuse of discretion.

Order affirmed.

Appellants to pay costs.
      Note: Certiorari granted, Court of Appeals of Maryland, June 16, 1977.


text:
    STATE OF MARYLAND v. ALBERT LOUIS STANLEY
    [No. 921,
    September Term, 1976.]

      Decided January 3, 1977.

    The cause was argued before Gilbert, C. J., and Morton and Melvin, JJ.

      Bruce C. Spizler, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the memorandum in behalf of appellant.

      James A. Gede for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

At the conclusion of a two-day non-jury murder trial in the Circuit Court for Baltimore County, the trial judge said:

“There is no question in my mind that under the evidence that is now in front of me, that the State has not made out a case, not even a prima facie case. Therefore, the charges are dismissed against the Defendant.” (Emphasis supplied.)

Ordinarily, those words would have terminated the case of State of Maryland v. Albert Louis Stanley, but this matter the State views as being of a different species. Not content to accept Judge William. R. Buchanan’s judgment, the State noted an appeal to this Court from “the Dismissal of [the] Indictment.”

When the record reached us, we requested the State and Stanley to submit memoranda as to the appealability vel non by the State, and we simultaneously scheduled oral argument on the question.

The State grounds its appeal on the basis of Lohss v. State, 272 Md. 113, 321 A. 2d 534 (1974), rev’g, 19 Md. App. 489, 313 A. 2d 87 (1973). In that case, Lohss and one Sprenkle were indicted for violating the controlled dangerous substance laws of Maryland. The crux of the State’s case before the trial court was eroded beyond repair by the trial judge’s suppression of certain inculpatory evidence. Lohss then filed a motion to dismiss the indictment. The prosecutor had “no objection” thereto, and the hearing judge dismissed the indictment as to Lohss. The State then moved to dismiss as to Sprenkle, who interposed no objection, so that the indictment was also dismissed as to him. The State then appealed. The Court of Appeals perceived the appeal as a vehicle to obtain review of the trial judge’s rulings on the motion to suppress. Pointing out that there was no objection in the trial court to the dismissal of the indictment, the Court invoked Md. Rule 885 and ordered us to dismiss the State’s appeal.

In the case sub judice, the Assistant State’s Attorney commented after Judge Buchanan’s “dismissal” of the charges, “The State would make an objection; for the record, the State objects.” That objection, the State reasons, raised the issue in the trial court and preserved the matter for appellate review. If what was involved here was a dismissal of the indictment, the State might well be correct; but, as we see it, that is not the issue.

Md. Cts. & Jud. Proc. Code Ann. § 12-302 (c) (1) provides:

“(c) In a criminal case, the State may appeal:
(1) From a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information; presentment, or inquisition....”

A review of the record in the instant case discloses that Stanley, through his counsel, moved during the trial to suppress certain “... crucial evidence presented by the prosecuting attorney....” After the trial judge frustrated the State’s efforts to introduce the challenged evidence by suppressing it, the Assistant State’s Attorney said, “That would be the State’s case because of your rulings....” The defense counsel promptly made a motion for judgment of acquittal. Stating that during a recess he had an opportunity “to again look at the law concerning . . . [his] rulings” on the evidence, the judge declared:

“I am reasserting exactly what I held before — that it is the fruit of the poisonous tree under . .. [Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975)], that the evidence was illegally obtained, and the mention of the van in the statement the Defendant gave the police, and therefore, since it arose out of that, and the original statements were ... without Miranda, [] that being illegal, ... the subsequent consent to search is illegal under Everhardt [sic] v. State.
You asked [sic] for a motion, Mr. Gede?”

Counsel responded in the affirmative, and the judge then made the remarks concerning the dismissal of the charges, as quoted at the outset of this opinion.

We think it perfectly clear that Judge Buchanan granted the motion for judgment of acquittal and did not, as the State strongly suggests, dismiss the indictment. While the judge could have more artfully articulated his granting of the motion, we believe common sense dictates that he, nevertheless, did grant it. “That seems to us to be the common sense of the matter; and common sense often makes good law.” Peak v. United States, 353 U. S. 43, 46, 77 S. Ct. 613, 615, 1 L.Ed.2d 631, 635 (1957).

A misused word may cause one to pause, but it will not defeat the true intention when that intention may be gleaned from a review of the total circumstances. Every lawyer who has at some time in his or her career represented clients in police station courts, particularly under the now defunct trial magistrate system, will immediately recognize that the trial judge, in the case now before us, employed a “stationhouse” synonym for “not guilty” when he uttered, “the charges are dismissed.”

It has been the established common law of this State, even before Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969), made the double jeopardy prohibition of the Fifth Amendment applicable to the several states through the Fourteenth Amendment, that a person may not be twice placed in jeopardy for the same offense. See, e.g., Blondes v. State, 273 Md. 435, 442-43, 330 A. 2d 169, 173 (1975); Neal v. State, 272 Md. 323, 327, 322 A. 2d 887, 889 (1974); Cornish v. State, 272 Md. 312, 316 n. 2, 322 A. 2d 880, 883 n. 2 (1974); State v. Barger, 242 Md. 616, 619, 220 A. 2d 304, 306 (1966); State v. Adams, 196 Md. 341, 344, 76 A. 2d 575, 576 (1950); State v. Shields, 49 Md. 301, 303 (1878). In Shields, the Court observed:

“It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury. 2 Hale’s P. C. 310; 2 Hawk’s P. C. Book 2, ch. 47, sec. 12; 3 Whart. Cr. Law, sec. 3221; 1 Bishop’s Cr. Law, secs. 992, 993. This cardinal rule has been clearly and definitely settled in England, and has never been modified by legislation there, nor in any other State in this Union, nor indeed, so far as we are aware, in any other country where trial by jury under the common law prevails.” 49 Md. at 303.

Notwithstanding Shields, in State v. Mariana, 174 Md. 85, 197 A. 620 (1938), over the State’s objection, a motion to suppress evidence was granted prior to trial. In the trial, the State was unable to prove its case, as it lacked evidence, so the defendant was acquitted. On appeal by the State, the Court reversed and awarded a new trial. The question of double jeopardy does not appear to have been raised or considered.

The Court was confronted by Mariana in two subsequent cases, State v. Rosen, 181 Md. 167, 28 A. 2d 829 (1942), and State v. Adams, supra. Rosen was distinguished on the basis that in Mariana there was no statute permitting pre-trial suppression of evidence. The question of double jeopardy was seemingly ignored. Adams, however, addressed the issue. The Court said:

“The Attorney General also relies on State v. Mariana, 174 Md. 85, 197 A. 620, in which this court reversed a judgment of acquittal for error in granting before trial (and before enactment of Chapter 749 of the Acts of 1939, Code, Art. 27, sec. 306), a motion to suppress evidence. There was no motion to dismiss the appeal, and the right to appeal was not mentioned in the opinion. What was done in the Mariana case cannot operate to overrule sub silentio what was decided in the long line of prior cases; still less can it stand against subsequent decisions. The instant case is indistinguishable from ... Rosen ... or from prior cases. Nor would it, now or ever, have been reviewable on writ of error.” 196 Md. at 350; 76 A. 2d at 579.

Adams thus stripped Mariana of any cloak of value as a precedent, and Blondes, supra, has deracinated Mariana’s dubious holding.

Here, Stanley is “.. . forced to defend an appeal taken by the State.” The appeal, however, is not allowed by law. Consequently, we, in the exercise of our power conferred by Md. Rules 1035 a 2 and b 1, dismiss the appeal.

We express neither approval nor disapproval of the rulings in the case at bar relative to the suppression of the evidence. We narrow our holding to the fact that the State may not, by the use of semantics, successfully disguise an obvious not guilty verdict as a dismissal of an indictment so as to enable the State to appeal.

Appeal dismissed.

Costs to be paid by Baltimore County.

      . 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

      . But see Palko v. Connecticut, 302 U. S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), decided 59 years after Shields, involving a statute which permitted the State to appeal. In Palko, the Supreme Court was of the opinion that the Fifth Amendment prohibition against double jeopardy was not applicable to the States. Benton v. Maryland, supra, expressly overruled Palko.

      . Mariana is discussed in a case note, 4 Md. L. Rev. 303 (1940).

      . In a case note on Rosen, supra, in 7 Md. L. Rev. 364, 367 (1943), the author thereof opines that “Mariana ..., while not endangering the rights of defendants in criminal cases, still leave[s] the law in a state of sufficient doubt that the defendant in some future case may again be forced to defend an appeal taken by the State.”

      . See swpra note 4.


author: Moore, J.,

text:
    CLARENCE L. ROBERTSON et al. v. SHELL OIL COMPANY et al.
    [No. 294,
    September Term, 1976.]

      Decided January 4, 1977.

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

      Clarence M. Thomas, with whom were Savage, Jones, Tingle & Schwartzman, P.A. and Francis B. Burch, Attorney General, J. Howard Holzer and Charles R. Goldsborough, Jr., Assistant Attorneys General, on the brief, for appellants.

      John F. Wiley for appellee Shell Oil Company. James D. Peacock, with whom were Pamela P. Wassmann and Semmes, Bowen & Semmes on the brief, for other appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Clarence L. Robertson, a school bus driver employed by Baltimore County, was injured in a fall after stepping onto an excavated area of a Shell service station owned by appellee, Carroll N. Griffin. Mr. Robertson, his wife and his Workmen’s Compensation carrier thereafter filed suit in the Circuit Court for Baltimore County against Mr. Griffin, Shell Oil Company and a third defendant, Petroleum Services, Incorporated, a general contractor employed for the installation of a new tank and pump for unleaded gasoline. Petroleum Services filed a motion for summary judgment on the basis of Mr. Robertson’s deposition and a color photograph showing the excavated area adjacent to the pump island where he sustained his injury.

The court below (Turnbull, J.) ruled that Mr. Robertson was contributorily negligent as a matter of law, and from an Order granting summary judgment in favor of all appellees, this appeal has been taken. We conclude that the court erred in its finding and we therefore reverse and remand.

I

Returning from his daily afternoon run, the appellant drove his school bus into the Holabird Shell service station, located at Holabird and Vesper Avenues in Baltimore County, at approximately 4:00 p.m., on October 29,1970. The appellant, who lived one block from the station, was a regular customer, stopping for gas every 2 to 3 days.

On this particular day, sunny and clear, Mr. Robertson drove his vehicle alongside one of the two service islands, 2 or 3 feet from the island’s curb. According to his deposition, he took one stride from the bottom step of the bus directly onto the service island. In doing so, he stepped across an unpaved area, approximately 14 inches in width, where the appellee, Petroleum Services, Inc., had run a pipe underground from a newly-installed storage tank (located on the other side of the service station) to a new pump for unleaded gasoline. The surface over the storage tank had been repaved. The trench for the pipeline — which was nearly 18 feet long — had been filled with dirt, gravel and stones, but had not yet been paved. The photograph, attached to appellees’ motion for summary judgment, showed that the filled area was slightly lower than the surrounding concrete pavement. In his deposition, Mr. Robertson testified that he did not notice the unpaved strip either when he drove into the station or when he alighted from the bus.

Appellant remained outside the bus for about five minutes. At one point, he stepped off the pump island and walked towards the front of the bus as the station attendant checked the oil. At no time, according to appellant, did he ever see the unpaved surface. After giving the attendant his credit card, he attempted to proceed back into the bus from the service island. He took one step toward the vehicle, placing his right foot on the unpaved area; he lost his balance and fell forward, sustaining a serious injury to his right leg. He deposed: “Either it gave away with me [sic] or the side of it crumbled when I stepped there and it caused me to pitch forward or stagger.”

Concerning appellant’s opportunity to perceive the exposed area, the following colloquy appears in his deposition:

“Q Before you stepped off of the island, did you observe where you were placing your right foot?
A No, I didn’t notice anything.
Q Did you look?
A Well, I imagine I did.
Q Do you recall what you saw?
A If I had seen anything I certainly wouldn’t have stepped in it.”

Finding the area to be an “open and obvious condition which presented danger to anyone who trod upon it” and which the appellant himself considered dangerous, according to his statement, the court held — without passing on the issue of primary negligence — that the appellant was barred from recovery because he was contributorily negligent as a matter of law. The court stated, in part:

“It seems to me, gentlemen, that where there is an open and obvious condition, which a plaintiff knows or should know is likely to he a dangerous condition, and the plaintiff walks into such condition, either without looking or having looked, nonetheless, stepping into that condition, that under the authorities, it is contributory negligence as a matter of law. The best that the plaintiff testified to in his deposition with regard to looking was, ‘I imagine I looked.’ That certainly cannot be taken as affirmative evidence of looking. If, however, it were taken as affirmative evidence thát the plaintiff did, in fact, look before he stepped, then he would be guilty of contributory negligence in stepping into a condition which he himself, by inference at least, considered to be a dangerous condition.” (Emphasis added.)

II

As a general proposition, questions of primary and contributory negligence are for the jury. It is equally well recognized that the facts of a given case may establish that a defendant has been guilty of negligence or a plaintiff has been guilty of contributory negligence, as a matter of law. Southern Maryland Electric, Inc. v. Blanchard, 239 Md. 481, 485, 212 A. 2d 301, 304 (1965). The vehicle for taking either issue from the jury can be a motion for summary judgment pursuant to Maryland Rule 610, although the Court of Appeals has stated, “[u]sually it is neither advisable nor practicable to enter a summary judgment in a tort action.” Driver v. Potomac Electric Power Co., 247 Md. 75, 79, 230 A. 2d 321, 324 (1967).

Where a summary judgment on the issue of contributory negligence is pursued, the law pertaining to the consideration and disposition of such a motion is well settled. The purpose, of course, is not to try the case on the merits. As Judge Smith observed in Rooney v. Statewide Plumbing, Inc., 265 Md. 559, 563, 290 A. 2d 496, 498-99 (1972):

“The purpose is not to try the case on its merits, but to determine whether any real dispute exists as to any material fact. If the pleadings, depositions, admissions, and affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, then summary judgment should be granted. If there is a genuine dispute as to any material fact, then, it should not be granted. In reviemng such a motion we must be concerned primarily with deciding whether or not a factual issue exists. Therefore, all inferences should be resolved against the party making the motion. However, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact.” (Emphasis added.)

The motion for summary judgment in the case sub judice was based upon the claim that the “filled-in area” where appellant fell was in plain sight and would have been seen by the plaintiff had he been exercising ordinary care for his own safety; and upon his testimony, as set forth in the transcript of his pretrial deposition, that he either “failed to look where he was stepping or looked and did not see what he must have seen had he been exercising ordinary care and caution for his own safety.”

In his ruling from the bench at the conclusion of oral argument on the motion, the trial court observed: “The plaintiff himself testified that if he had seen it, he would not have stepped into it. It follows from that, inevitably, that the plaintiff himself considered this condition to be one which presented danger to anyone who might step on to it so that we have an open and obvious condition which presented danger to anyone who trod upon it.” The difficulty we experience with the above pronouncement lies, we think, in the court’s apparent departure from the requirement that all inferences must be resolved against the party making the motion. It is not, in our judgment, a proper inference from appellant’s testimony that there was an existent condition which appellant considered dangerous. We think it more appropriate, and in accordance with the rule, to interpret appellant’s statement, “If I had seen anything I certainly wouldn’t have stepped in it,” not as conceding the existence of a condition which presented danger at the time — but only as an expression of hindsight, after the fact of his serious injury. Simply put, we think there was an open and obvious condition, but whether it “presented danger to anyone who trod upon it” represents a genuine issue of fact having a substantial bearing upon the issue of contributory negligence (and, of course, primary negligence), and that this issue should have been left for determination by a jury. The Maryland cases, and the limited facts before the court in this case on the motion for summary judgment, compel this conclusion.

Before the doctrine of contributory negligence can be successfully invoked, the moving party has the burden of demonstrating that the injured person failed to use due care to avoid dangers which he actually knows exist from past experience or knowledge of which may be imputed to him because the dangers are so obvious that any ordinarily prudent and cautious person would see and avoid them. Menish v. Polinger Co., 277 Md. 553, 559, 356 A. 2d 233, 237 (1976); Honolulu, Ltd. v. Cain, 244 Md. 590, 599, 224 A. 2d 433, 438 (1966); Texas Co. v. Washington B. & A. Railroad Co., 147 Md. 167, 173, 127 A. 752, 755 (1925). To warrant withdrawal of a case from the jury on the grounds of contributory negligence, “the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Reiser v. Abramson, 264 Md. 372, 378, 286 A. 2d 91, 93 (1972).

We need not belabor the point that there was present in this case an open and obvious condition. We recognize that appellant stated in his pretrial deposition that he never saw the excavated area. Whether he had actual knowledge or not is immaterial. The 14-inch wide, filled-in area was in plain view and was certainly within appellant’s sight during the five minute interval that he spent on the pump island while his school bus was being serviced. He was therefore chargeable with knowledge of its existence. Mershon v. Gino’s, Inc., 261 Md. 350, 357, 276 A. 2d 191, 193 (1971); Southern Maryland Electric, Inc. v. Blanchard, supra, 239 Md. at 487, 212 A. 2d at 304; Sutton v. Mayor of Baltimore, 214 Md. 581, 585, 136 A. 2d 383, 384 (1957); Fulton Building Co. v. Stichel, 135 Md. 542, 549, 109 A. 434 (1920).

This is by no means, however, determinative of the issues involved in this appeal. Of critical importance are the nature of the open and obvious condition and whether, in the light of the attendant circumstances, appellant exercised reasonable care for his own safety. The excavated area abutting the island, where appellant placed his right foot before attempting to re-enter the bus, was not an icy surface, Eyler v. Adolph Beauty System, 238 Md. 227, 208 A. 2d 609 (1965); nor a watery surface, Sugar v. Traub, 233 Md. 320, 196 A. 2d 869 (1964); nor an uncovered opening, Rooney v. Statewide Plumbing, Inc., supra. This case involves a 14-inch wide excavated area awaiting cement. (The record on this appeal does not disclose the period of time the condition existed.) The photograph annexed to the motion for summary judgment shows that the excavated or exposed area immediately adjacent to the gasoline pumps was almost on the same level as the surrounding paved portion, with stones and crushed rock at the surface. We find strikingly appropriate, and compelling, the language of the Court of Appeals in Ensor v. Ortman, 243 Md. 81, 92, 220 A. 2d 82, 88 (1966), “whether a reasonably prudent person, under similar circumstances, would have ‘stepped slowly’ or somehow tested the [area], before entry . . ., were matters properly left for the jury’s determination.”

In 'Ensor, the court reversed a judgment n.o.v. which had set aside a jury verdict in favor of the plaintiff-appellant who sustained injuries when she fell through the floor of the back porch of a rented dwelling. She was aware of a defective condition in the floorboards and had reported to the landlord the need for repairs. The landlord had assented but delayed. Reversing, the Court of Appeals held it did not follow that because she knew of the defective condition and nonetheless used the porch, she was contributorily negligent as a matter of law. There was sufficient evidence from which the jury could properly have found that her use of the porch, known by her to be defective, was not unreasonable under all the circumstances:

“They could properly have found that she knew that the porch was defective but did not know, nor would a person of reasonable prudence know, under the circumstances then existing, that the boards were likely to give way when she walked on them in pursuance of her normal household duties. 243 Md. at 89-90, 220 A. 2d at 87.

The court in Ensor recognized the absence of testimony by the injured party with respect to precautions taken for her own safety. This absence of such testimony was held “by no means dispositive” because, in establishing the affirmative defense of contributory negligence, the defendant must not only prove that a reasonably prudent plaintiff would have taken certain precautions, he must also prove that the failure to take the suggested precautions was the proximate cause of the injury. Distinguishing cases relied upon by the appellee where dangers were patent, the court held, “But the evidence here does not show that what the plaintiff would have seen,, if she had looked, would have reasonably warned her of the impending danger.” 243 Md. at 91, 220 A. 2d at 88. The court also held that appellant’s failure to look where she was going, as conceded by her, could not be said to have caused her injury as a matter of law.

Ensor is, we think, illuminating with respect to the issues involved in the instant case. Here, on the basis of this pretrial summary judgment record, we do not know the precise manner in which appellant sustained his injuries. Conceivably, he stepped on a stone and lost his balance. Hypothetically also, a laqk of compaction and the weight of his body caused his heel to sink, thus placing him off balance. Had he looked and observed a stone, he might have avoided it. However, it is unlikely that by looking he could have discovered a soft area. But these, in our judgment, present jury questions and, at the very least, underscore the absence of an adequate factual record upon which a finding of contributory negligence, as a matter of law, could be predicated.

Under the circumstances and conditions that are revealed by the record, we also find persuasive the decision of the Court of Appeals in Mayor of Baltimore v. Grossfeld, 173 Md. 197, 195 A. 554 (1937). There, the defendant challenged a jury’s verdict for the plaintiff, who had slipped on a defective portion of a sidewalk when she caught her heel on a soft spot. It was contended that the plaintiff was contributorily negligent as a matter of law. The facts revealed that plaintiff had used the sidewalk daily for about a year and that the defective condition, consisting of rough and uneven cement and scattered gravel, had existed for some time. On the day of the accident, the plaintiff’s heel “came down on a spot which unexpectedly proved to be a soft spot, and thereby the heel sank into a sort of a hole, the ankle turned, and the plaintiff fell forward and injured her right knee and leg.” 173 Md. at 199, 195 A. at 555. The court, in affirming the jury verdict, charged the plaintiff with knowledge of the surface condition of the sidewalk but held that a jury question existed as to whether,

“. . . the cause of the accident was not the observable rough, uneven, surface, and the gravel and sand upon it, but the latent soft state of a spot or filled hole in the walk into which the heel of the plaintiff’s shoe unexpectedly sank, without any lack of reasonable care and caution on the part of the plaintiff in not discovering nor anticipating the danger there existing.” (Emphasis added.) 173 Md. at 201, 195 A. at 557.

In similarly affirming a jury verdict in favor of the plaintiff, the Court of Appeals in Hutzler Brothers Co. v. Taylor, 247 Md. 228, 230 A. 2d 663 (1967), a case in which the plaintiff tripped on a depression in a step, stated, “The nature of the condition was such that one might have walked across it dozens of times either without noticing it at all or, if noticing it, without suspecting its harmful potential. . . .” (Emphasis added.) 247 Md. at 239, 230 A. 2d at 670.

There is no exact test for determining, with respect to the question of contributory negligence, whether a dangerous condition is so obvious that a person of ordinary prudence could see it and appreciate its danger and thus avoid it. The facts of the individual case are controlling. Miller v. Howard, 206 Md. 148, 110 A. 2d 683 (1935). A significant factor to be considered is the ability of a reasonable and ordinarily prudent person to anticipate danger. Sanders v. Williams, 209 Md. 149, 152, 120 A. 2d 397, 398 (1956). In Menish v. Polinger Co., supra, the Court of Appeals, by Judge O’Donnell, in discussing the importance of the element of foreseeability, stated:

“Thus, in the application of the doctrine of contributory negligence, a critical element is whether or not the plaintiff, chargeable with notice of what a reasonably and ordinarily prudent person would have foreseen, and chargeable with foreseeing what common experience tells may, in all likelihood, occur, took proper precautions for his own safety.” (Citations omitted.) 277 Md. at 562, 356 A. 2d at 238.

In the instant appeal, although the appellant is to be charged with knowledge of the existence of the unpaved area when he fell, we are unable to find that his conduct in stepping there was a “prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds,” that the appellant was guilty of contributory negligence. We hold that a jury question existed as to whether the appellant exercised the care of a reasonable and prudent person, under the circumstances, and that the motions for summary judgment were improperly granted. In so holding, we make no ruling concerning the issue of primary negligence.

Judgment reversed; case remanded for trial; costs to be paid by appellees.

      . At the time of the hearing on the motion in open court, Shell Oil Company and Mr. Griffin joined in the motion by oral application.

      . A copy of the photograph is appended to this opinion.

      . In the cited cases, the plaintiffs were held contributorily negligent as a matter of law. There are eases, of course, where despite the presence of an open and obvious danger, the plaintiff is held not contributorily negligent, as a matter of law, because of the existence of circumstances which presented a jury question. See, e. g., Snider v. Senneville, 267 Md. 552, 298 A. 2d 175 (1973) (where the appellant tripped over a tool box which had temporarily been placed by the appellee in appellant’s living room); Hutzler Bros. Co. v. Taylor, 247 Md. 228, 230 A. 2d 663 (1967) (where the appellee fell in a depression in. the macadam surface of a parking lot stairway); Denbow v. C. & P. Telephone Co., 199 Md. 609, 87 A. 2d 584 (1952) (where the ■appellant’s attention was distracted and he stepped in an unprotected manhole while crossing a narrow public alley.)


author: Menchine, J.,

text:
    HOWARD COUNTY, MARYLAND et al. v. HOWARD RESEARCH AND DEVELOPMENT CORPORATION et al.
    [No. 345,
    September Term, 1976.)

      Decided January 4, 1977.

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

      Richard Strom, with whom was Richard J. Wilkinson on the brief, for appellants.

      Roger D. Redden and Russell T. Baker, Jr., with whom were Piper & Marburg on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

On August 14, 1975, The Howard Research and Development Corporation and others caused to be recorded among the land records of Howard County a document entitled “Agreement Confirming, Modifying, Amending, Supplementing, Consolidating and Further Modifying Deeds of Trust.” A recordation tax in the amount of $191,400.00 was paid at the time of recording.

In order to resolve a dispute concerning the proper amount due as a recordation tax under the provisions of Maryland Code Article 81, § 277, the grantors, joined by another (collectively to be referred to herein as H.R.D.) filed an amended bill of complaint against the Clerk of the Circuit Court for Howard County (Clerk).

The amended bill, filed in the Circuit Court for Howard County, sought a declaratory decree determining that the sum paid at the time of recordation — $191,400.00 — was the correct recordation tax due and payable. By stipulation, Howard County, Maryland was permitted to intervene as a party defendant (County).

The chancellor passed a decree declaring, among other things:

“That the sum of $191,400.00 which was paid by the Petitioners on August 14, 1975 to the Clerk of the Circuit Court of Howard County, as being the amount of recordation tax due on the aforesaid instrument recorded among the Land Records of Howard County in Liber C.M.P. No. 732, folio 506 is the legally correct amount of tax due under the provisions of Section 277, Article 81 of the Annotated Code of Maryland and no additional tax is due or owing with respect to the recordation of said instrument.”

County and Clerk have appealed, contending that the recordation tax should have been calculated on the total indebtedness secured by the subject instrument ($125,162,689.00), requiring a tax payment of $546,272.00.

H.R.D. contends that, by reason of the provisions of subsections (h) and (k) of § 277, the recordation tax properly was to be calculated only upon the increased amount of indebtedness secured by the subject instrument ($43,500,000.00), requiring a tax payment of $191,400.00, the sum paid upon recording the document.

The Document

H.R.D. on August 14, 1975, had executed a deed of trust conveying certain lands in Howard County to Maryland National Bank, Trustee, in trust as security for the equal and proportionate benefit and security of the holders of certain notes issued by H.R.D.

The deed of trust secured an indebtedness totaling $125,162,689.00. $81,602,689.00 of that sum previously had been secured by five previously recorded deeds of trust executed by H.R.D. The subject deed of trust also secured, for the first time, an additional indebtedness of $43,500,000.00, that previously had been the subject of unsecured notes of H.R.D.

The Agreement in substance:

(a) confirmed and preserved the liens of each of the five deeds of trust and the loans secured thereby in order to preserve the priorities of those liens with respect to other creditors;

(b) modified each of those five deeds of trust in order to secure the new notes that were issued in exchange for the notes secured by the respective deeds of trust;

(c) amended the terms of each of the five deeds of trust in order to reflect the extended maturity dates, the decreased interest rates, and the other terms and conditions under which the loans would be repaid;

(d) supplemented each of the five deeds of trust in order to add land to each deed of trust so that each' deed of trust would be secured by all of the undeveloped land owned by H.R.D. and its subsidiaries;

(e) consolidated the five deeds of trust, as so confirmed, modified, amended, and supplemented, into one instrument;

(f) modified that one consolidated instrument so that it also secured the $43,500,000.00 of previously unsecured indebtedness;

(g) restated the terms of the five deeds of trust, as confirmed, modified, amended, supplemented, consolidated, and further modified; and

(h) retained as trustee the sole successor trustee under all of the prior deeds of trust.

The document contained, inter alia, the following specific provisions:

“[The parties] confirm the lien, legal operation and effect of the Existing Deeds of Trust and the respective grants, conveyances, and assignments made therein by the Grantors to the Trustee, as trustee, its successors as trustee and assigns, under each such Deed of Trust,... so that the Existing Deeds of Trust, as so confirmed, modified, amended, supplemented, consolidated and further modified, shall constitute one first deed of trust (the ‘Deed of Trust’) that grants, conveys, and assigns the Trust Estate in trust to the Trustee, as trustee, its successors as trustee and assigns, for the equal and proportionate benefit and security of the holders from time to time of all the Notes, subject to the priorities set forth in clauses ‘Third’ and ‘Fourth’ of section 4.11 hereof; so that the terms of the Deed of Trust and of this Agreement shall be binding upon and inure to the benefit of the respective parties hereto, their successors and assigns and all holders from time to time of any of the Notes; so that neither this Agreement nor anything contained herein shall be construed as a substitution or novation of the Grantors indebtedness to the Purchasers or of the Existing Deeds of Trust, which shall remain in full force and effect, as confirmed, modified, amended, supplemented, consolidated and further modified, as heretofore provided, .. ..” (Emphasis added.)

The Statute

The pertinent parts of Article 81, § 277 read as follows:

“(a) Written instruments. — A tax is hereby imposed upon every instrument of writing conveying title to real or personal property, or creating liens or encumbrances upon real or personal property, offered for record and recorded in this State with the clerks of the circuit courts of the respective counties, or the clerk of the Superior Court of Baltimore City, .... The term ‘instruments of writing shall include deeds, mortgages, chattel mortgages, bills of sale, leases, deeds of trust, contracts and agreements.....
“(h) Supplemental instruments securing debt. — No tax shall be required for the recordation of any instrument securing a debt that merely confirms, corrects, modifies or supplements an instrument previously recorded, or conveys or pledges property in addition to, or in substitution for the property originally conveyed or pledged, if such supplemental instrument does not increase thé amount of the debt secured by the instrument previously recorded.
“(k) When total amount of debt to be secured has not been incurred. — If the total amount of the debt which may become secured by any instrument securing a debt shall not have been incurred at the time such instrument is offered for record, the tax shall be computed solely in the principal amount of the debt then incurred and secured by such instrument. Before any additional debt is incurred which is to be secured by an instrument previously recorded, the debtor shall file with the clerks of the courts with which such instrument has been recorded a duly verified statement showing the amount of such additional debt and shall pay the tax with respect thereto upon, but only upon, the amount of such additional debt so secured which has been incurred after May 31, 1937, and with respect to which such tax shall not theretofore have been paid, less the principal amount of any debt then outstanding and secured by such instrument which is to be paid or refunded out of the proceeds of such additional debt.”

The Decision

We find Hammond v. Phila. Elec. Pwr. Co., 192 Md. 179, 63 A. 2d 759 (1949), to be dispositive of the subject dispute. In Hammond, the Power Company in 1946 issued what it called a supplemental indenture authorizing the issuance of $30,000,000.00 worth of 25/s% bonds to redeem outstanding 5V2% bonds in the same amount that had been issued in conjunction with a mortgage that had been executed in 1926. The Court of Appeals, after discussion of decisions in other jurisdictions that had turned upon the issue whether the particular document was a “new” or a “supplemental” instrument, said at 189-90 [764]:

“The debt, therefore, is the important factor. In the case before us the debt is the same, at least to the extent of the unpaid bonds outstanding under the mortgage of February 1, 1926. The creditors are not the same, but the trustee representing them is. The old mortgage is not extinguished, and its lien is preserved. The words at the end of Sec. 220 (sub-section (k)), in our opinion, contemplate an exemption from the tax for any debt by an original mortgage which is to be refunded. ... we cannot see how the appellees can be compelled to pay the recordation tax in the face of our statutory provision. Refunding cannot be accomplished through the same instrument which creates the original debt without some additional agreement, and to suppose that the legislature intended to exempt only such refunding as can be done through the original mortgage alone is to convict it of enacting an absurdity. If the refunding is accomplished without the need of the original mortgage, then the new instrument is not supplemental, but original, and the tax must be paid. But if the lien of the old instrument is retained, only the evidence of the same debt is changed, if the new instrument cannot operate without the retention of the old, then we think the last is supplemental to the first within the meaning of our statute, and is exempted from the tax.”

In the subject case, the indebtedness secured by the document in question included $81,662,689.00 in unpaid obligations outstanding under the prior deeds of trust. The creditors are the same. The trustee representing the creditors is the same. The full force and effect of all of the prior deeds of trust remain after the terms of the agreement take effect. The liens of those prior deeds of trust are preserved.

We are persuaded that the subject document effected a refunding of the original deeds of trust but with retention of the liens of those prior instruments. In such a case, when the modifying document includes a previously unsecured obligation, the recordation tax properly will be calculated only upon that previously untaxed obligation and may not be levied upon the sums so refunded.

Otherwise stated, the recordation tax in the subject case may be levied only upon “the amount of such additional debt [created by the instrument] and [the taxpayer] shall pay the tax with respect thereto upon, but only upon, the amount of such additional debt so secured.” Article 81, § 277 (k), supra.

We perceive no error.

Decree affirmed.

Costs to be paid by Howard County.

      . The parties executing the document were: The Howard Research and Development Corporation, Columbia Industrial Development Corporation, 95-32 Corporation, 95-216 Corporation, Premble, Inc., Columbia Mall, Inc., Oakland Ridge Industrial Development Corporation, and The Columbia Development Corporation, as Grantors, and Maryland National Bank, as Trustee.

      . Pioneer National Title Insurance Company, a corporation that had issued a mortgagee’s title insurance policy insuring the validity of the document.

      . The decree also included an order permanently enjoining the Clerk of Court from removing or attempting to remove the document from the land records of Howard County. No appeal was taken from that part of the decree.

      . The five deeds of trust and the balances of outstanding indebtedness thereon at the time of execution of the subject deed of trust were as follows:
      1. 1965 New Town Deed of Trust $ 37,500,000.00
      2. Corridor Deed of Trust 32,162,689.00
      3. 1974 New Town Deed of Trust 5,000,000.00
      4. January, 1975 New Town Deed of Trust 4,000,000.00
      5. June, 1975 New Town Deed of Trust 3,000,000.00
      Total indebtedness outstanding under the five-deeds of trust at time of execution of subject $ 81,662,689.00 trust.

        N.B. A recordation tax was paid upon the principal obligations of the several prior deeds of trust at the time of their recording.


author: Liss, J.,

text:
    IRIS OCTAVA TERRELL v. STATE OF MARYLAND
    [No. 359,
    September Term, 1976.]

      Decided January 4, 1977.

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

      Harriette Cohen, 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, Arthur A. Marshall, Jr., State’s Attorney for Pri,nee George’s County, and William B. Spellbring, Jr., Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Iris Octava Terrell, the appellant herein, was indicted with Earl Hargrove, Ernest Bright and James Williams as a participant in a conspiracy which resulted in the murder of her husband, Willie Clyde Terrell. The first three counts of the indictment charged only the three men with murder, carrying a handgun and the use of a handgun in a crime of violence. The fourth count charged the appellant and the other three defendants with conspiring to murder Willie Clyde Terrell, and the fifth and sixth counts charged her with being an accessory before and after the fact to the murder of her husband who had died after receiving eleven gunshot wounds to various parts of his body. After some extended legal maneuvering the three men were called to trial. Bright and Williams withdrew the not guilty pleas previously filed by them and entered pleas of guilty to second degree murder; Hargrove withdrew his not guilty . plea and entered a plea of guilty to first degree murder. The pleas were accepted; and after pre-sentence reports were obtained and evaluated by the trial court, sentences were imposed. After the imposition of the sentences the State entered nolle prosequis as to each of these defendants in the remaining counts of the indictment charging them with conspiracy to murder and the weapons charges.

The appellant was thereafter called to trial before a jury (Mathias, R. B., Judge, presiding) in the Circuit Court for Prince George’s County. During the course of the trial Bright and Hargrove, appellant’s alleged co-conspirators, testified as to conversations implicating her in a conspiracy to kill her husband. In addition, a witness, Morrisey, testified as to an alleged offer by the accused to pay him a certain sum of money if he would assist in killing her husband. The jury convicted the appellant of conspiracy to murder and of being an accessory before the fact. Sentence was imposed as to each conviction, and it is from these judgments that this appeal was filed.

The appellant offers four grounds upon which she rests her contention that the convictions against her should be reversed. The first contention is that the trial court erred in failing to rule on appellant’s motion to dismiss the indictment against her until after the conclusion of the trial. The appellant filed her motion to dismiss five days prior to trial. A hearing on the motion was held after the selection of a jury, but before the jury was sworn. At the conclusion of the hearing the trial judge announced that he was reserving his ruling on the motion. Our reading of the record makes it clear that the court intended to deny the motion, and that the purpose of the reservation of the ruling was to prevent an immediate appeal from the court’s decision thereby aborting the trial. That this was the purpose of the legal shadowboxing is evidenced by the fact that counsel objected to the court’s reservation of its ruling and moved the court for an immediate ruling on its objection. The trial judge responding, feint for feint, reserved ruling on that motion as well. The appellant renewed her motion to dismiss at the conclusion of the State’s case and again at the conclusion of all the evidence. In denying the motions, the trial court indicated that it had earlier denied the same contentions stating, “The [c]ourt previously had ruled on that in the motion to dismiss, and the motion requiring the [c]ourt to rule on the motion to dismiss, two motions.” It was not, however, until after the trial was concluded and sentence had been imposed that the trial judge caused the denial of the motions to be recorded in the docket entries. The appellant contends that this belated final ruling was tantamount to no ruling at all. We disagree.

This Court has recognized the dangers of piecemeal appellate review and has held that ruling on a motion to dismiss, in the exercise of the trial court’s discretion, may be deferred for determination until the trial of the general issue, and that no appeal will lie except in those cases where the trial court denies an absolute constitutional right.

Maryland Rule 725 d expressly provides that a motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. We have held that no appeal lies from the exercise of the trial court’s judgment in deferring a ruling on pretrial motions until the trial on the merits. Taylor v. State, 22 Md. App. 370, 323 A. 2d 648 (1974); see also Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974); Pearlman v. State, 226 Md. 67, 172 A. 2d 395 (1961); Harris v. State, 6 Md. App. 7, 249 A. 2d 723 (1969), cert. denied, 255 Md. 741 (1969); Greathouse v. State, 5 Md. App. 675, 249 A. 2d 207 (1969).

In Gordon v. State, 14 Md. App. 245, 286 A. 2d 833 (1972), we had before us a similar set of facts. In that case the trial court, according to the docket entries, entered its verdict of guilty and then ruled on the defendant’s motion to dismiss. We said at page 249:

“[H]e points out, the motion was not determined at the trial of the general issue as the Rule provides, but after the trial on the general issue. This, he argues, was not in accordance with the Rule and he claims the proper sanction for the violation is a reversal of the judgment. We do not see it that way. Assuming that the docket entries record the proceedings in the order of their occurrence, there was no ruling on the motion until after the verdict and the ‘trial’ had ended. The lower court was wrong in not announcing its determination of the motion during the trial of the general issue. However, Rule 725 provides no sanction for its violation.” (Footnote omitted).

We distinguish Gordon, supra, from Brice v. State, 254 Md. 655, 255 A. 2d 28 (1969), and Saunders v. State, 8 Md. App. 143, 258 A. 2d 776 (1969), where it was held that in the absence of waiver the failure to rule on a pretrial motion was error requiring reversal.

We find no prejudice from the late ruling in this case and therefore no merit to appellant’s contention.

As her second assignment of error the appellant contends that the trial court should have granted appellant’s motion to dismiss the conspiracy indictment against her because the entry of nolle prosequis on the conspiracy charges against all of her alleged co-conspirators mandated the dismissal of the conspiracy charge against her. It is, of course, true that the crime of conspiracy cannot be committed by one person alone. The gravamen of the crime is the unlawful agreement between two or more persons. This does not mean, however, that more than one conspirator must be convicted or prosecuted. Hurwitz v. State, 200 Md. 578, 92 A. 2d 575 (1952). It is only essential to show that at least two persons had a meeting of the minds — a unity of design and purpose — to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means. Wilson v. State, 8 Md. App. 653, 262 A. 2d 91 (1970).

In Regle v. State, 9 Md. App. 346, 264 A. 2d 119 (1970), we said at page 351:

“[ I]t is the well settled general rule that one defendant in a prosecution for conspiracy cannot be convicted where all of his alleged co-conspirators, be they one or more, have been acquitted or discharged under circumstances that amount to an acquittal. Hocheimer on Criminal Law (Second Edition) Section 290; Clark and Marshall, Section 9.07; Wharton’s, Section 91; Perkins, p. 533. The validity of the general rule has been consistently recognized by the Court of Appeals. See State v. Buchanan, 5 H & J 317; Bloomer v. State, [48 Md. 251]; Hurwitz v. State, 200 Md. 578.”

The issue then is whether, under the existing factual situation, all of the appellant’s co-conspirators have been either acquitted or, in the alternative, discharged under circumstances which amount to an acquittal. The appellant urges that the acceptance of the guilty pleas to murder and the subsequent entry of nolle prosequis as to all of the remaining counts of the indictment charging the conspiracy as to all the co-conspirators, except the appellant, precluded her prosecution for the alleged conspiracy.

The Court of Appeals in Blondes v. State, 273 Md. 435, 443; 330 A. 2d 169, 173 (1975), in reversing this Court stated the common law principle to be “that the entry of a nolle prosequi, vnthout the defendant’s consent, and after jeopardy has attached, operates as an acquittal and precludes further prosecution for the same offense.” (Citations omitted; emphasis supplied). The Court continued “where a nolle prosequi is entered before jeopardy attaches, the State is only precluded from prosecuting the defendant further under that indictment, but the defendant may be proceeded against for the same offense by another indictment or information.” (Citations omitted).

In Regle v. State, supra, at pages 352-353, we stated the law to be as follows:

“[ W]hile the cases are generally divided on the question whether the entry of a nolle prosequi as to one of two alleged conspirators compels an acquittal of the remaining conspirator, the better reasoned view would appear to support the proposition that it does not, at least where the nolle prosequi was not entered without the co-conspirator’s consent after the trial had begun (which then would have amounted to an acquittal and precluded reindictment).”

From the record before us we are unable to determine whether, in fact, jeopardy had attached to the co-conspirators at the time that the indictment was called at trial. It does disclose that all of the charges against all of the defendants were included in a single indictment of six counts. We have no information as to what occurred when the case was called as to the co-conspirators only, nor as to the circumstances surrounding the offer and acceptance of the guilty pleas and the subsequent entry of the nolle prosequis. We have only the bare docket entries which are not sufficient for a determination of this issue.

We held in Van Meter v. State, 30 Md. App. 406, 352 A. 2d 850 (1976), that Maryland Rule 1026 a 2 places the burden upon the appellant to provide a transcript of the testimony to be considered by the court. Where, as in Van Meter, testimony as to one of the appellant’s contentions of error was not provided, the appellant was precluded from arguing that ground as a basis for reversal. As we shall reverse on other grounds we make no ruling on this contention.

The appellant next asserts that the trial court erred in unduly restricting her testimony on direct examination. It is well settled in Maryland that the testimony of one conspirator is admissible against a co-conspirator without the necessity of establishing through an independent source the existence of the conspiracy. Mason v. State, 18 Md. App. 130, 305 A. 2d 492 (1973); Irvin v. State, 23 Md. App. 457, 328 A. 2d 329 (1974). The declarations of one conspirator are admissible against a co-conspirator when forming part of the conversation between them, and the acts of one are admissible against the other when done in the latter’s presence and on the occasion of the alleged offense. 3 Underhill Criminal Evidence Sec. 861 (5th ed. 1957); Mason, supra; Irvin, supra; Haina and Strawbridge v. State, 30 Md. App. 295, 352 A. 2d 874 (1976). The legal foundation for these rules is found in the cases that hold that a conspirator is, in effect, the agent of each of the other co-conspirators during the life of the conspiracy. As such, any statement made or act done by him in furtherance of the general plan and during the life of the conspiracy is admissible against his associates and such declarations may be testified to by third parties as an exception to the hearsay rule. 1 Underhill Criminal Evidence Sec. 179 (5th ed. 1956); Commonwealth v. Girardot, 107 Pa. Super. 274, 163 A. 362 (1932). The appellant specifically complains of the trial court’s refusal to permit her to testify concerning a number of conversations had with witnesses called to testify in the State’s case. One of these witnesses was Nelson Morrisey. He testified that the appellant and Earl Hargrove, one of the alleged co-conspirators, came to his home and engaged in a conversation in the course of which she wanted to know “would I kill her husband or get someone to do it.” Hargrove, also called by the State, testified he had several conversations with the accused about killing her husband and that he took her to see Morrisey. He denied any recollection of what transpired on their visit to Morrisey’s home. The appellant, who testified in her own behalf, denied asking anyone to kill her husband. She admitted she accompanied Hargrove to Morrisey’s home on one occasion, but stated she remained in the car and could not hear the conversation between Morrisey and Hargrove some twenty-five (25) feet away from her. She later left the car and heard Morrisey and Hargrove talking. She was asked what the conversation was between them and the State’s objection to the question was sustained. On another occasion she went to Morrisey’s poolroom where Hargrove and Morrisey spoke out of her presence. She was asked what Hargrove told her about his conversation with Morrisey and the State’s objection was sustained. The appellant was then questioned concerning her conversation with Hargrove as follows:

“Now, what did Earl Hargrove tell you he was going to see Morrisey for?
MR. SPELLBRING: Objection.
THE COURT: Sustain the objection.
BY MR. DE PAUL:
Q All right.
Mrs. Terrell, whose idea was it to go over to see Morrisey?
A Earl’s.
Q And what did Earl say you were going over there for?
MR. SPELLBRING: Objection.
THE COURT: Sustain the objection.
BY MR. DE PAUL:
Q Mrs. Terrell, during that part of the summer, did you ever ask Earl Hargrove to kill your husband?
A No, I never.
Q Was there any talk about him killing your husband?
A No. Earl just said that —
MR. SPELLBRING: Objection to anything he said.
THE COURT: Court sustains the objection.
BY MR. DE PAUL:
Q Mrs. Hargrove [sic], did you discuss the killing of your husband with any of the people at your house the night before he was killed?
A No, I didn’t. The only thing that was said in my house when they came in —
MR. SPELLBRING: Objection to anything that was said.
THE COURT: The Court will sustain the objection as to what anyone else said.
BY MR. DE PAUL:
Q Well, now, without telling us what it was that was said, who said something that you were about to tell me about?
A Earl said something. Earl said —
Q Who was present when Earl said something?
A I was present, Derrick was present, Renee was present, and James Williams.
Q You were present. You could hear Earl?
A Yes, I heard him.
Q What did he say?
MR. SPELLBRING: Objection.
THE COURT: Sustain the objection.”

It is significant that the final conversation took place in the appellant’s home the night before her husband was killed, and that Hargrove, Bright and Williams, her alleged co-conspirators, were present when the conversation took place. While there may be some justification under the hearsay rule to have excluded the appellant’s testimony as to what Hargrove told her about his conversation with Morrisey, there is no justification for the refusal to permit her to testify concerning her conversation with her alleged co-conspirator in the presence of the remaining co-conspirators. We shall reverse.

Judge Gilbert of this Court in Irvin v. State, supra, quoting 3 Underhill Criminal Evidence Sec. 861 (5th ed. 1957) stated:

“. . . [Bjefore the declarations of one conspirator are admissible against a co-conspirator the existence of the conspiracy and the connection of the coconspirator therewith must be established. This is true where the declarations of the conspirator are sought to be introduced through a third person; such third person cannot testify against the coconspirator until the latter’s connection with the conspiracy is proved by evidence aliunde. But the proposition is not true when the witness is a conspirator who seeks to testify about declarations made to him by his coconspirator. In such case the witness may testify and the testimony will be received against the coconspirator. The analogy here is to the law of agency: the testimony of a third person as to what an alleged agent told him will not be received against the principal unless the agency is first established, but the agent himself may always testify to relevant statements made to him by the principal.
Further, the declarations of one conspirator are admissible against a coconspirator when forming part of a conversation between them, and the acts of one are admissible against the other when done in the latter’s presence and on the occasion of the alleged offense.” (Footnotes omitted).

The use of the analogy of the law of agency in conspiracy cases has been criticized by a number of the legal pundits, but has been primarily justified by its supporters on the ground that the original declarant is the principal who gave his agent instructions. The agent then is permitted to testify as to statements made to him by the principal. In this case, however, the trial judge refused to permit the principal (the appellant) to testify concerning her conversations with the agent (co-conspirator Hargrove). This seems to us manifestly unfair. While the co-conspirators’ exception to the hearsay rule arose because of the great probative need for a relaxation in the law of evidence arising out of the difficulty of proving the crime of conspiracy, the use of such testimony must be kept within the limits of fairness to the defendant. To prevent the defendant from giving her version of the conversations she had with her alleged co-conspirators, particularly when they have already testified for the State as to their version, was clearly prejudicial to her right to a fair trial. The relaxation of the rules of evidence so avidly pursued by the State in these prosecutions for conspiracy cannot be permitted to become a one-way street.

We cannot accept the State’s contention that the failure of the appellant to make a proffer as to the contents of the declaration as required by Maryland Rule 522 should preclude us from considering this ground. We are here concerned with an issue of fundamental fairness and our perusal of the record convinces us that the alleged conversations sought to be made a part of the appellant’s testimony were relevant and material to the question of whether a conspiracy existed. We said in Santoni v. State, 5 Md. App. 609, 621, 249 A. 2d 200, 206 (1969), that “as the answer sought to be elicited from [the witness] by the appellant was so obvious and apparent from the question itself [and so very vital to appellant’s defense], we do not think that a proffer of the substance of the expected answer was necessary, Baldwin v. State, 226 Md. 409, 414...".

We find no merit in the final contention made by the appellant that the trial court erred in permitting testimony concerning the obtaining of arrest warrants for the appellant’s co-conspirators or the refusal of the court to grant a mistrial because of such testimony. The testimony, we are convinced, did not influence the jury to convict the appellant because a co-defendant had been convicted in another proceeding. The granting of a mistrial is vested in the sound discretion of the trial court, and its decision will not be disturbed on appeal absent a showing of abuse of that discretion. Baker, Whitfield and Wilson v. State, 15 Md. App. 73, 289 A. 2d 348 (1972).

Judgments reversed; new trial granted.

Costs to he paid by Prince George’s County.

      . Blondes v. State, 19 Md. App. 714, 314 A. 2d 746 (1974).

      . Now Chief Judge of this Court.

      . See, Levie, Hearsay and Conspiracy: A Reexamination of the Co-Conspirator’s Exception to the Hearsay Rule, 52 Mich. L. Rev. 1159 (1954).


text:
    LOUIS ROSADO v. STATE OF MARYLAND
    [No. 406,
    September Term, 1976.]

      Decided January 4, 1977.

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

      John J. Garrity, Assigned Public Defender, with whom was Norman N. Yankelbw, Public Defender for Baltimore City, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Joseph

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

delivered the opinion of the Court.

In a court trial in the Criminal Court of Baltimore (Hargrove, J., presiding), the appellant, Louis Rosado, was convicted of assault with intent to murder and the use of a handgun in a crime of violence. Sentences were imposed, and it is from these judgments that this appeal was filed.

Sylvester Ferguson, the alleged victim, testified that on April 29, 1975, he was walking down a street in Baltimore City with a friend when the appellant ran out of an alley and shot him twice. He indicated that a few days earlier he had had a discussion with the appellant in which he protested the relationship between the appellant and the victim’s wife. He denied having a weapon at the time of the altercation. The hospital records, admitted over objection, indicated that Ferguson had been shot twice in the abdomen — one bullet lodging on the right side and the other on the left side.

The appellant took the stand and testified that Ferguson had ordered him to stay away from his wife. On the day of the altercation he was en route to his grandmother’s house when Ferguson ran out from behind a car and began shooting at him. He ran at Ferguson who dropped his gun and ran. Rosado picked up the gun and chased Ferguson, firing two shots at him during the pursuit. He stated he did not know whether Ferguson was hit by the shots which he fired.

The case was then submitted to the trial court which ruled that the appellant’s version of the incident was incredible to the court, and that the physical facts demonstrated by the hospital records were inconsistent with the appellant’s testimony. The court further ruled that the appellant’s own testimony negated the theory of self-defense. On the basis of these conclusions the Court found the appellant guilty and imposed sentence.

The appellant has raised four issues to be considered by this Court. Initially, he contends that the trial court abused its discretion in unduly limiting the scope of cross-examination of the prosecuting witness as to his attempt to have the charges against the appellant withdrawn. We agree that this was an abuse of the trial court’s discretion and shall reverse.

The transcript reflects the following colloquy between the trial court and counsel.

“Q. Since this has happened, have you personally gone to the Eastern Police Station and indicated to anybody there —
MR. FLEISCHMANN: Objection.
MR. LEVINSON: I haven’t finished my question.
THE COURT: I can anticipate it. It is an improper question. That is not his function.
MR. LEVINSON: Well, if Your Honor please, I think it might not be his function with respect to a charge brought by the State, but I think it can bring out the demeanor of the witness with respect to the crime that we are talking about. It goes to credibility also.
THE COURT: Well, how can it go to credibility?
MR. LEVINSON: Well, if the man — if you are anticipating the question that I wanted to ask him that he wanted to drop the charges in this matter immediately after it happened —
THE COURT: It is not relevant.
MR. LEVINSON: I take exception.
THE COURT: It is not relevant. It is not his function to drop the charges. That’s the State’s function solely.”

It is, of course, a well-settled legal principle that the extent of cross-examination is vested in the sound discretion of the trial court. Williams v. State, 15 Md. App. 320, 290 A. 2d 542 (1972); Jenkins v. State, 14 Md. App. 1, 285 A. 2d 667 (1971); Long v. State, 7 Md. App. 256, 254 A. 2d 707 (1969). Where, however, the limitations imposed by the court on cross-examination are such as plainly to inhibit the ability of the accused to obtain a fair trial, the general rule is manifestly inapplicable. Shupe v. State, 238 Md. 307, 208 A. 2d 590 (1965). We said in Mulligan v. State, 18 Md. App. 588, 596, 308 A. 2d 418, 423 (1973):

“That a witness may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge or the like, is a fundamental concept in our system of jurisprudence. Kantor v. Ash, 215 Md. 285; Bryant v. State, 4 Md. App. 572. And cross-examination to impeach, diminish, or impair the credit of a witness is not confined to matters brought out on direct examination; it may include collateral matters not embraced in the direct examination to test credibility and veracity, it being proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. 3 Wharton’s Criminal Evidence, Sections 870, 871; 58 Am. Jur. Witnesses Section 625. Of course, the right to cross-examine effectively necessarily includes the right to place the testimony of a witness in its proper setting to fairly enable the jury to judge its credibility. Smith v. Illinois, 390 U. S. 129; Alford v. United States, 282 U. S. 687; Plank v. Summers, 205 Md. 598.”

The right of cross-examination here explicated is the same whether the trial be before a jury or before the court without the intervention of a jury.

The conflicting evidence offered by the victim and the accused was crucial in determining the degree of guilt, if any, of the accused. If the accused’s version of the incident was believed, the trial court could have found that the incident was provoked by the victim. The court also could have found that the unjustified attack on the accused by the victim was a circumstance of substantial mitigation sufficient to reduce to manslaughter a killing which otherwise would have been murder. If such mitigation existed, the accused might not have been guilty of assault with intent to murder, even though he could be found guilty of common law assault. Finnegan v. State, 33 Md. App. 251, 364 A. 2d 124 (1976).

The accused’s version of how he came into possession of the handgun, if believed, would have raised some question, at least of his guilt or innocence of the handgun violation.

This was a one-on-one confrontation both on the street and in the courtroom. The appellant was entitled to pursue on cross-examination the question of whether or not the victim had attempted to withdraw the charge against the appellant. He may not have done so, or in the alternative, he might have done so; and if he did, there are innumerable reasons or explanations for his conduct. The appellant was entitled to have this information before the trier of the facts as a test of the victim’s credibility and veracity. The trial court’s refusal to-permit the exploration of these facts and circumstances was an abuse of its discretion.

We have considered the other grounds urged by the appellant, and as to the second and third of these grounds we find no merit in the appellant’s contentions. The fourth contention that the appellant did not waive his right to a jury trial is moot since the appellant may exercise his choice in the new trial mandated by this opinion.

Judgments reversed; remanded for new trial.

Costs to be paid by Mayor & City Council of Baltimore.