text:
    JAMES RICKY HERRING v. STATE OF MARYLAND
    [No. 1395,
    September Term, 1978.]

      Decided July 16, 1979.

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

      George Z. Petros, with whom were Fisher & Walcek on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Michael Gallavan, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, James Ricky Herring, was indicted by the grand jury for Prince George’s County for housebreaking under Maryland Code (1957,1976 Repl. Vol.) Art. 27, Section 30 (b); housebreaking under Art. 27, Section 31 A; two counts of larceny and two counts of receiving stolen goods.

Appellant moved to suppress evidence seized from him on the ground that an unconstitutional search and seizure had taken place. After taking testimony and hearing argument, the trial judge denied the motion to suppress. A court trial thereupon ensued during the course of which the State offered as Exhibits 1 and 2 the physical evidence seized from the appellant. Appellant objected to the admissibility of the evidence, the objection was overruled, and the exhibits were received in evidence. The trial court found the appellant guilty under the first count of the indictment and sentence was thereafter imposed. It is from this judgment that this appeal was filed.

The sole question raised by this appeal is whether the trial court erred in denying appellant’s motion to suppress and in overruling the appellant’s objection to the admission of the physical evidence seized by the State.

The facts in the case are relatively uncomplicated. On June 13, 1978, the appellant and another individual were walking down Saint Barnabas Road in Hillcrest Heights, Maryland. Detective Morrissette, who was investigating several unsolved breaking and enterings in the area, suspected the appellant and his companion were involved in the incidents. Morrissette, upon being notified that the appellant was present on Saint Barnabas Road, proceeded to intercept the appellant for questioning. The appellant was taken to the police station in Oxon Hill, Maryland and questioned in Detective Morrissette’s office. During the course of the questioning, the appellant removed a jacket (sweater) he was wearing and placed it on his chair. At the conclusion of the questioning, the appellant was allowed to leave. In the course of leaving, appellant forgot that his jacket was hanging on the chair. The jacket contained several pockets, one of which was closed by a zipper. After appellant’s departure, Detective Morrissette took possession of the jacket, which he knew belonged to the appellant, and felt the pockets. Upon becoming aware that the zipped pocket contained some unknown objects, he unzipped the pocket and found several items of women’s jewelry. Immediately upon seeing the jewelry, he suspected that it was contraband and locked the jewelry and jacket in his desk drawer. The detective maintained that his search of the jacket and the seizure of the jewelry was done for the purpose of protecting the property itself and the police from false claims.

The State contends that the search and seizure involved was for the purpose of á bona fide inventory of the contents of the jacket for the purposes suggested by the detective. It is conceded that at the time of the search, the State had no knowledge of the theft of the jewelry nor of its ownership. The following morning after the search of the jacket Detective Morrissette began an investigation of his files in an attempt to match the jewelry with a specific breaking and entry report. He was able to secure a match and proceeded to obtain an arrest warrant for the appellant.

It is acknowledged by the appellant that the State came into legal custody of the appellant’s jacket when he forgot it in the interrogation room at the police station. We are required, however, to make an independent examination of the record and to determine whether the appellant’s constitutional rights have been violated. Brookhart v. Janis, 384 U. S. 1, n. 4, 86 S. Ct. 1245, 16 L.Ed.2d 314 (1965); Waine v. State, 37 Md. App. 222, 377 A. 2d 509 (1977).

The parties agree, in view of the warrantless search of the jacket, that in order for the search to have been permissible it must have fallen within one of the recognized exceptions to the warrant requirement, and that failure to qualify under one of the exceptions would make the search per se unreasonable. Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); Waine v. State, supra.

The State urges that this search fell within the ambit of the inventory search exception as expressed by the Supreme Court in South Dakota v. Opperman, 428 U. S. 364, 96 S. Ct. 3092, 49 L.Ed.2d 1000 (1976), wherein the Court found that an inventory search of an automobile in police custody usually flows out of the necessity on the part of police to inventory the contents of an automobile in order to secure or protect the car and its contents. The Court’s rationale rested on the element of mobility of an automobile which warrants a privacy expectation significantly less than that relating to one’s office or home, and which demands less rigorous warrant requirements than would normally attach to a search and seizure situation. See Cardwell v. Lewis, 417 U. S. 583, 94 S. Ct. 2464, 41 L.Ed.2d 325 (1974); Camara v. Municipal Court, 367 U. S. 523, 18 L.Ed.2d 930, 87 S. Ct. 1727 (1967). The Court in Opperman, supra, in a majority opinion approved the inventory procedure when it stated:

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, 17 L.Ed.2d 730, 87 S. Ct. 788. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 31 L.Ed.2d 807, 92 S. Ct. 1501 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned. [49 L.Ed.2d at 1005.]

The Court also opined at 1007 that:

The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. In the first such case, Mr. Justice Black made plain the nature of the inquiry before us:
“But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment.” Cooper v. California, 386 U.S., at 61, 17 L.Ed.2d 730, 87 S.Ct. 788 (emphasis added). “[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures.’ The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” Coolidge v. New Hampshire, 403 U.S., at 509-510, 29 L.Ed.2d 564, 91 S.Ct. 2022 (concurring and dissenting) (emphasis added).

In Duncan and Smith v. State, 281 Md. 247, 259 (1977) the Court of Appeals held:

[P]olice may, without regard to probable cause, and, thus, absent a warrant, constitutionally enter an automobile and unlocked compartments therein, and inventory and seize articles found, provided the vehicle had been otherwise legally taken into police custody and the inventorying was pursuant to a standard police procedure.

In United States v. Chadwick, 433 U. S. 1, 97 S. Ct. 2476, 58 L.Ed.2d 538 (1977), the Supreme Court distinguished between automobiles and luggage when a search incident to arrest and the automobile exception to the warrant requirement are involved. In Chadwick, federal agents, acting without a search warrant and without the consent of the arrested persons, but with a probable cause belief that a footlocker they had lawfully seized from the open trunk of a parked automobile contained contraband, opened the footlocker over an hour after the arrests and discovered large amounts of marijuana. The Court found that once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest, but that there may be justifications for a warrantless search of luggage taken from a suspect at the time of his arrest where the officers have reason to believe that the luggage may contain some dangerous instrumentality. See Shingleton v. State, 39 Md. App. 527, 543, 387 A. 2d 1134 (1978).

Although we recognized in Waine v. State, supra, that Chadwick did not deal with inventory searches, we nevertheless saw “no reason why in an appropriate case an inventory search would not be as applicable to luggage as to automobiles, if the reasons for the station house inventory are as valid as the justifications for an automobile inventory.” 37 Md. App. at 232-33. In deciding that “the police may, under appropriate circumstances, establish a routine procedure for inventorying the contents of any container lawfully seized,” id. at 233, this Court tempered its decision in Waine by stating that the approval “of inventory searches does not provide a general license for the police to examine all the contents of the container”; that the inventory search must not be “inconsistent with protective custody”; and that to determine “[wjhether an inventory search was justified must depend on the facts of the individual search.” Id. at 234.

In the recent case of Cleckley v. State, 42 Md. App. 80, 399 A.2d 903 (1979), police officers, while conducting a routine traffic stop noticed a revolver on the floor of the passenger compartment of the intercepted vehicle. The occupants of the car were arrested and taken to police headquarters. The investigating officer took custody of the appellant’s vehicle and while driving to the station house noticed three ladies’ purses on the front seat, opened them and observed their contents. After further investigation, the officer determined that the purses were the fruits of robberies. He then inventoried the contents of the three purses which were subsequently admitted into evidence. We held that the contents of the purses should have been suppressed as the search of the pocketbooks “was not conducted pursuant to standard police procedure of securing and inventorying property under a community care-taking function,” and that “[s]ince this search was ‘investigative’ in nature and conducted for the purpose of discovering evidence of a crime, it exceeded the scope of a bona fide inventory search.” Id. at 85.

It is our responsibility, under the circumstances the present case, to determine whether the officer’s action in opening the zippered jacket pocket was a justified, reasonable search conducted for the protective purpose asserted.

The State acknowledges that inventory searches must be conducted in a non-investigative manner as part of a standard routine procedure and not conducted to discover evidence of crimes. See Boone v. State, 39 Md. App. 20, 30, 383 A. 2d 412, aff’d with modification, State v. Boone, 284 Md. 1, 393 A. 2d 1361 (1978).

Detective Morrissette gave this testimony as the basis for his search of the jacket:

Q. When you saw the jacket, realized whose it was, what did you assume you were going to do with it?
MR. PETROS: Objection.
THE COURT: Overruled. I will let him answer it.
THE WITNESS: I was — since I requested Mr. Herring to accompany me to the Oxon Hill Station for interviewing on other break-ins, and he had since left his property behind in my custody, it was my responsibility for that property.
BY MR. GALLAVAN:
Q. And what were you going to do with that property?
A. I was going to check for any valuable contents.
Q. Why were you going to do that?
A. Because I am responsible for contents which are left in my custody.
Q. And at the time you decided to check for valuable contents what did you plan on doing with the jacket and any contents you found?
A. Depending on the value of the contents. If they were not valuable, for example, cigarettes or something along that line, I would just put them back in the coat and lock them up in my desk. Since I discovered it was jewelry, noticed it was of some considerable value, locked them in my desk.
Q. Now, when you saw the jacket and made the decision to look for valuables in it, did you intend at that time to retain the jacket?
A. Until I could give it back to the owner, yes, sir.
Q. Does the department have, any standards dealing with or relating to how to deal with property which is left in your custody at the station?
A. Yes, sir. There are numerous general orders as to abandoned property, property seized, contraband, property along that nature. We are held responsible for that property. No matter how it came into our custody, once it comes into our custody we are responsible for that property.
Q. And are you responsible for that property regardless of whether or not you are aware of what the contents of any particular objects were?
A. Yes, sir.
Q. Now, it was in checking to see if there were any contents of any value in the sweater when you said you discovered certain items of jewelry, is that correct?
A. Yes, sir.

The State admits that in spite of the detective’s contention that the search of the jacket was an inventory search, no inventory of any kind was ever reduced to writing. The State seeks to excuse this lapse on the basis of the following exchange between the State’s Attorney and the detective:

Q. And when you discovered the items of jewelry marked State’s Exhibit No. 2 what did you do?
A. I immediately noticed they were women’s jewelry, a watch, two necklaces. Knowing that Mr. Herring is not married, knowing his past juvenile record involving break-ins, larcenies, crimes along that line, I immediately and positively considered them to be contraband.

The State argues that the search and seizure were made in this case because the detective felt he was responsible for the contents which were left in his custody. It cites as authority for this position, Mickey v. Sears Roebuck, 196 Md. 326, 76 A. 2d 350 (1950). Our reading of that case discloses that it does not support the legal position of the State. In Mickey, the plaintiff recited in his declaration: that he had cashed a check for the purpose of meeting his payroll and had put the proceeds in a leather briefcase he was carrying; that he then drove his automobile to the appellee’s store to make a purchase; that while carrying his purchases from the loading platform to his automobile, he left the briefcase containing the money on the platform; that the briefcase was then taken in custody by one of the store’s employees and placed in the property room of the appellee. The next morning when the appellant appeared at the company’s property room he received his briefcase, but allegedly the cash was missing. The employee at the property room disclaimed all knowledge of the cash. In sustaining a demurrer to a declaration claiming damages against the company by the owner of the briefcase, the Court of Appeals stated the law to be as follows:

In the case of a gratuitous bailee, or bailee without reward, there is no contract and he is liable only for wrongful conduct. Schermer v. Neurath, 54 Md. 491, 496. The doctrine is derived from the civil law and many of the cases state that he is liable only for “gross negligence,” following Coggs v. Bernard, 2 Ld. Raym. 909, but in Maury v. Coyle, 34 Md. 235, a prayer was approved that defined the liability of an unpaid bailee as “that he is bound to observe such care in the custody of property committed to his keeping, as persons of ordinary prudence in his situation and business, usually bestow in the custody and keeping of like property belonging to themselves.” Schermer v. Neurath, supra. The appellee argues that in the instant case the placing of the briefcase in its property room demonstrates that ordinary care was exercised, there being no allegation that this was not a safe place. [196 Md. at 331.]

The act of the examination of the zippered pocket of the appellant’s jacket caused to be imposed a greater degree of care on the police than would have been required had the police handled the jacket as they would normally have processed a misplaced chattel.

In Williston, Contracts (Rev. Ed.) Sec. 1038A, in discussing “involuntary” bailees, it is said: “The general rule is that the bailment of a receptacle does not entail liability for inclosed articles other than those known to the bailee or ordinarily contained therein, though, of course, the bailee is under a duty of reasonable care to protect the receptacle in the condition in which it is received.” [citations omitted] [196 Md. at 332.]

We distinguish here between the reduced expectation of privacy that an individual may have in an automobile as compared with an article of his clothing. When the detective noticed the jacket he knew to whom it belonged and had every reason to expect that the owner would return for it shortly, as he did approximately one half-hour after being released from the police station.

In order to justify the policeman’s conduct in this case, we would be required to conclude from our own independent examination of the record that the detective acted in good faith in making the alleged inventory search, and not as a subterfuge to conduct a warrantless search for investigative purposes. Dixon v. State, 23 Md. App. 19, 327 A. 2d 516 (1974). In view of all the circumstances in this case, we cannot conclude that the officer did, in fact, act in good faith. It is to be noted that at the very inception of this encounter, the detective testified that he suspected the appellant of being involved in unsolved breaking and enterings in the neighborhood where he saw the appellant. He articulated no factual basis for that suspicion. His action in “picking up” the appellant and taking him in for questioning was admittedly without probable cause. At the conclusion of the questioning, it is obvious that the detective had no probable cause as he permitted the appellant to leave the station. When the officer found the jacket, he knew to whom it belonged but made no effort to reach its owner in order to call the mislaid chattel to the owner’s attention. The detective’s statement as to why he conducted the search into the zippered pocket does not ring true. He had, at most, an unsupported suspicion that the jewelry he found in the zippered pocket was contraband. The failure to list the jewelry or to even prepare an inventory sheet is hardly supportive of his statement regarding the purpose for which he searched the jacket. The admission by the officer that the next morning he went through the reports on file of breaking and enterings in the area to attempt to match the jewelry held by him with items stolen in the reported breaking and enterings clearly indicates that the entire transaction was part of an attempt by the officer to discover evidence of crimes.

We said in Dixon v. State, supra at 40, that “where the conduct of the police was inconsistent with its contention that the search was conducted for inventory purposes, the search was unlawful.” Compare Mackall v. State, 7 Md. App. 246, 251, 255 A. 2d 98 (1969) where the inventory of the contents of a suitcase in the trunk of an automobile was found to be a bona fide attempt to safeguard the owner’s property; and Kleinbart v. State, 2 Md. App. 183, 199, 234 A. 2d 288 (1967) where the search of a suitcase in the trunk of an automobile was found inconsistent with protective custody.

We conclude that the detective in this case was not conducting a search of the appellant’s jacket for the purposes of preparing an inventory to safeguard the appellant’s property, but was actively seeking evidence of the commission of a crime or crimes. Therefore, as this was a warrantless search not authorized under any of the recognized exceptions to the requirement that a warrant be obtained to search and seize property of an individual, it amounted to an unreasonable search. Walker v. State, 12 Md. App. 684, 280 A. 2d 260 (1971).

Judgment reversed, remanded for new trial, costs to be paid by Prince George's County.


source: Caselaw Access Project

author: MacDaniel, J.,

license: Public Domain

text:
    FRANK WILLIAM PETRLIK v. HEVILA BETTIE PETRLIK et al.
    [No. 1397,
    September Term, 1978.]

      Decided July 16, 1979.

      The cause was argued before Moore, Lowe and MacDaniel, JJ.
    Submitted on brief by Brian E. Frosh for appellant.

      Charles H. Acker, III, for appellees.
   MacDaniel, J.,

delivered the opinion of the Court.

This dispute is between Frank William Petrlik, the appellant, and his mother, Hevila Bettie Petrlik, and her other son, Joseph Petrlik, who are the appellees. The controversy concerns a single family residence and lot in Silver Spring, Maryland.

Originally, Hevila and her husband, Frank Joseph Petrlik, Jr., owned the property as tenants by the entireties. In 1972, after the couple separated, one of the sons, Frank William Petrlik, the appellant, purchased the father’s interest in the property. To do so, he obtained a $17,000 mortgage on the entire property. The Deed of Trust note was also signed by his mother. Hevila and the appellant became joint tenants. Sometime thereafter, Frank moved into the house. Hevila made no payments on the mortgage.

Eventually, problems arose between Hevila and her son Frank. In April 1974, Hevila moved out. Thereafter, Hevila conveyed her one-half interest to herself for life, with the remainder to her son Robert in fee simple. Hevila and Robert then filed a Bill of Complaint, in the Circuit Court for Montgomery County, against Frank, seeking a sale in lieu of partition of the property and requesting that the obligation of the outstanding Deed of Trust be charged solely against Frank’s share of the proceeds. The case came to trial on September 7,1978. The lower court entered a decree ordering a sale in lieu of partition and ordering that the mortgage be charged against Frank’s share of the proceeds only.

In its oral opinion, the lower court said, in part:

“Now, there seems to be some misunderstanding about how that was to work because it’s the wife’s testimony, the Plaintiff’s testimony, that she was going to have the son buy the entire interest of the husband and make all the payments on a mortgage to Perpetual to finance that purchase.
The son on the other hand said that he' and his mother were to divide the father’s interest and split the payments.
But the fact remains that when the conveyance was made to him on December 27, 1972, the entire interest of the husband was conveyed to the son, Frank William Petrlik, and there was really no consideration of any kind conveyed to the Plaintiff wife, and under those circumstances, Frank William Petrlik and Hevila Bettie Petrlik became joint tenants.
But she really gained no more than she already had, and the Court holds that this was a residence property which is not subject to partition. The Court, therefore, orders a sale in lieu of partition as between the joint tenants even though at a later time the Plaintiff convey away a contingent remainder, that the remainder is clearly contingent, does not affect her power as a joint tenant to sell and convey this property at any time during her natural life — which she is seeking to do, has a right to do, under Real Property, Section 14-107.
The Court holds that the mortgage that was recorded by Perpetual, or the deed of trust, recorded at 43,626, dated December 27, 1972, is solely the obligation of the son, Frank William Petrlik, because it was for the purpose of securing his half in the property.”

I

On appeal, the appellant argues, first, that the lower court erred, as a matter of law, in ordering a sale of the property in lieu of partition. He contends that a life tenant and remainderman may not join together to demand partition or sale under § 14-107 of the Real Property Article of the Annotated Code of Maryland, which provides, in part:

(a) Decree of partition. — A circuit court may decree a partition of any property, either legal or equitable, on the bill or petition of any joint tenant, tenant in common, parcener, or concurrent owner, whether claiming by descent or purchase. If it appears that the property cannot be divided without loss or injury to the parties interested, the court may decree its sale and divide the money resulting from the sale among the parties according to their respective rights.” (Emphasis added.)

The appellant cites Tolson v. Bryant, 130 Md. 338 (1917), in support of his argument. In that case, the issue was whether a plaintiff who is an absolute owner of an undivided interest in property is entitled under the Maryland Real Property Article to a sale in lieu of partition when the other undivided half interest is owned by one for life with the remainder to others. The Tolson Court granted the plaintiff the requested relief. The Court said at 344, in part:

“If a tenant in common, concurrent owner, or other person embraced by the terms of Section 137 of Article 16 could, by creating a life estate in his interest with a remainder to another or others, defeat the right to partition, it might in some cases result in tying up the interest of co-owners for many years. It may sometimes happen that a co-owner does great injustice to others by insisting upon a partition or sale, but it is a well established right, and if he complies with the requirements of the statute the Court has no power to prevent it.”

In the present case, the appellant argues that the plaintiffs, being the holders of a life estate and a remainder, are not a “joint tenant, tenant in common, parcener, or concurrent owner,” as required by § 14-107, supra, and that, therefore, the court below did not have jurisdiction to order a sale in lieu of partition. He contends that the Tolson case is consistent with his position that the person bringing an action under § 14-107, must have a fee simple interest in land. We disagree.

Although, as the appellant correctly states, there are no cases in Maryland directly on point, we feel that Bosley v. Burk, 154 Md. 27 (1927), is determinative of the outcome of this case. In Bosley, the fee simple owner of an undivided one-third interest in property filed a bill for partition against the remainderman in fee simple of the other two-thirds’ interest. The complainant also owned the life estate in the two-thirds’ interest. The Court stated at 33-34:

“We see no logical reason why the fact that the appellant owns the life estate in the remaining undivided two thirds, instead of some third party, should create a legal distinction between [this case and the Tolson case]. It is true that the life tenant was made a party defendant, together with the remaindermen, in the Tolson case, they owning consecutive interests which together created ownership concurrent with Tolson, and that in this case the complainant, who in addition to owning the fee simple interest in one undivided third is also the life tenant in the other two undivided thirds, is not made a party defendant; but he comes into a court of equity as complainant, asking for the relief prayed for in the bill, and it is a well recognized principle, under such circumstances, that he is in court for all purposes of the case, whether he be named complainant or defendant, and that his interest as life tenant in the two undivided thirds will be adjudicated in the same manner as if he had been made a party defendant. In our opinion the appellant is entitled to have partition as prayed ----” (Emphasis added.)

Like the Court in Bosley, we see no reason, in the present ease, why a life tenant and a remainderman who may be made defendants in an action for a sale in lieu of partition may not change positions and be plaintiffs in such an action. Hevila Petrlik, the life tenant, and Robert Petrlik, the remainderman, together hold the same property interest as the appellant, who has a fee simple interest. Together, then, the appellees have a property interest which is “concurrent” with that of the appellant, as that term is employed in § 14-107, supra. Therefore, we hold that the appellees were proper parties to bring a bill or petition for sale in lieu of partition and that the circuit court properly accepted jurisdiction in the present case.

The appellant also raises the argument that Hevila Petrlik vacated the property in question and is, in effect, using the sale in lieu of partition proceeding as a substitute for an ejectment proceeding. Assuming without deciding that this is a proper legal issue in a partition proceeding, there is no evidence whatsoever in the record to support this contention, and the argument is, therefore, without merit.

II

The appellant argues, next, that there was insufficient evidence to support the trial court’s finding that the outstanding obligation of the Deed of Trust was solely that of the appellant. We disagree. A careful reading of the Record Extract shows Hevila Petrlik owned her interest in the property free and clear of any mortgages at the time of the transfer to her and the appellant. In addition, there was evidence that the appellant approached Hevila Petrlik to buy his father’s interest and that the appellant was making the payments on the Deed of Trust. Hevila Petrlik testified that she knew, and that the appellant knew, that he was to make the payments and that it was his sole obligation. Other evidence showed, inferentially, that this was the understanding between the parties. Therefore, we hold that there was sufficient evidence for the trial court to find that the agreement between the parties was that the appellant alone was to pay the obligation of the Deed of Trust. Because the judge was not clearly erroneous in this finding, we will affirm his decision. Maryland Rule 1086.

Judgment affirmed.

Costs to be paid by appellant.

      . For purposes of this opinion, we assume that the present ownership of the property, i.e., Hevila owns a one-half interest for life, with the remainder of that one-half interest to Robert and Frank owns the other one-half interest in fee simple, to be correct, as no issue was raised below as to this ownership,


author: Gilbert, C. J.,

text:
    MARY ELIZABETH GINN et al. v. JOHN A. FARLEY et al.
    [No. 1407,
    September Term, 1978.]

      Decided July 16, 1979.

      The cause was argued before Gilbert, C. J., and Morton, J., and Samuel W. Barrick, Associate Judge of the Sixth Judicial Circuit, specially assigned.
    John H. Engel for one of the appellants pro se.

      T. Bruce Hanley, with whom were Ridgely & Hanley on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

If, as Alexander Pope wrote, “a little learning is a dangerous thing,” then a little learning in law is particularly perilous.

This appeal, from an affirmance by the Circuit Court for Baltimore County of a zoning board decision, reaches us in an unusual posture. One of the appellants, Mary Elizabeth Ginn, is admittedly not an attorney, nor is she an aggrieved party. Yet, she authored the appellants’ brief and appears on the record as one of the appellants.

We shall deal first with Ms. Ginn as a party appellant.

The Court of Appeals, in Bryniarski v. Montgomery County, 247 Md. 137, 230 A. 2d 289 (1967), articulated a binomial test which must be met before a person may appeal, in a chartered county, from an administrative zoning board decision to the circuit court. The party appealing must have been a party before thp administrative body and must be aggrieved by the decision. See also Slusher v. Hanson Road Joint Venture, 25 Md. App. 356, 333 A. 2d 631 (1975), cert. denied, 275 Md. 755 (1975); Largo Civic Association v. Prince George’s County, 21 Md. App. 76, 318 A. 2d 834 (1974).

There is usually no difficulty in ascertaining whether a person was a party before the zoning authority inasmuch as the record generally reveals that fact. Ms. Ginn appeared before the County Board of Appeals where she testified, “I am not an aggrieved party. I am just here representing the neighborhood, and this property is within the neighborhood complex.” Later, in response to a question by the Board's chairman, Ms. Ginn replied, “I am not aggrieved, not in the sense that the Court allows aggrievement.” Thus, the record makes unmistakable that Ms. Ginn satisfied the first prong of Bryniarski, appearance, but, at the same time, failed to meet the second prong, aggrievement. By her own admission she was not an aggrieved party within the meaning of the law; she possessed no right to appeal to the circuit court. Bryniarski v. Montgomery County, supra; Jahnigen v. Staley, 245 Md. 180, 135, 225 A. 2d 277, 280 (1967); Alvey v. Hedin, 243 Md. 334, 339, 221 A. 2d 62, 64 (1966); DuBay v. Crane, 240 Md. 180, 185, 213 A. 2d 487, 489-90 (1965); Slusher v. Hanson Road Joint Venture, supra; Largo Civic Association v. Prince George’s County, supra.

The matter of Ms. Ginn’s standing in the circuit court appears from the record to have been raised but not decided. In the trial court Ms. Ginn felt that she had standing, largely, we infer, because she was the designated spokesperson for the other appellants whose standing was not disputed. Moreover, Ms. Ginn was of the view that Md. Ann. Code art. 10, § 1 permitted her to represent the other appellants because she was not “performing the functions of an attorney for pay or reward either directly or indirectly.”

Although Judge DeWaters did not address the issue of Ms. Ginn’s standing, we have no hesitancy in holding that Ms. Ginn was not an “aggrieved party” within the meaning of Maryland law: she was not properly before the circuit court; and she should not have been heard. It follows from what we have said that the appeal, with respect to Ms. Ginn, should have been dismissed by the circuit court. We now sua sponte dismiss it on the basis of lack of standing on the part of Ms. Ginn to maintain the appeal.

Prior to oral argument, the Clerk of this Court, at the Court’s direction, notified Ms. Ginn that it would not allow her to appear and argue on behalf of the other appellants. While she disagreed with the Court’s position, she, nevertheless, did not argue the case. One of the other appellants, John H. Engel, argued pro se.

The difficulty facing us is that the other appellants are aggrieved parties and did properly note an appeal, but the brief filed on their behalf is not by counsel or by any of them pro se. Rather, it has been filed by Ms. Ginn as “Appellant and Spokesman for the Appellants.” As we see it, Ms. Ginn’s protestations to the contrary, what she did in this case constitutes the practice of law in violation of Md. Annotated Code art. 10.

This Court, in Lukas v. Bar Association of Montgomery County, 35 Md. App. 442, 371 A. 2d 669, cert. denied, 280 Md. 733 (1977), referred to Public Service Commission v. Hahn Transportation, Inc., 253 Md. 571, 253 A. 2d 845 (1969) and said “what constitutes the practice of law is for the courts to determine.” 35 Md. App. at 447. We further stated, “The power to regulate and define what constitutes the practice of law is vested solely in the judicial branch of government and not the executive nor the legislative.” 35 Md. App. at 447. It is hard to conceive that one would prepare the necessary appeal notice from the County Board, prepare a ten (10) page memorandum of law, complete with statutory and case citations, argue the case before the circuit court, note an appeal to this Court, prepare the necessary brief and record extract, complete with citations to prior decisions, and at the same time assert that they are not practicing law. Obviously, Ms. Ginn is of the erroneous belief that because she has not and will not receive “pay or reward either directly or indirectly” she is outside the ambit of the prohibition against lay persons practicing law. If the lack of payment or reward is the determining factor, then she could, based on her reasoning, perform brain surgery without compensation and successfully contend that she was not practicing medicine. As we see it, Ms. Ginn has transgressed the line between spokesperson and advocate, confidant and counsel, aider and attorney. Her appeal is dismissed.

We shall treat all other appellants, except Mr. Engel, as having submitted on the brief. Engel, as we have said, appeared and argued the case in his own behalf.

The record discloses that following the appellees’ purchase of a property located at the northwest corner of Alleghany and Central Avenues in Towson, Baltimore County, Maryland, the County Council reclassified the area to that of a higher density, namely, DR. 16. An office use is permitted in such a zone by Special Exception. The appellees petitioned the Zoning Commissioner for Baltimore County for a “Special Exception and Area Variance” to permit office use. The area variance was requested because the structure located on the property violated the existing front and side yard setback requirements. The Zoning Commissioner granted the petition, subject to certain conditions. An appeal was taken to the County Board of Appeals.

At that hearing, a registered professional engineer testified that in his opinion the requested use would not be detrimental to the health, safety, or general welfare of the locality involved. The engineer foresaw no difficulty with traffic congestion nor overcrowding. Indeed, he believed that the granting of the sought-after use would lessen the burden that then existed. He founded his opinion on the fact that the property would be changed from three apartments to an officé with one apartment. The witness did not perceive any violation of the letter or spirit of Baltimore County Zoning Regulations § 307.

An architect testified that in his opinion the office use would not offend the public safety, health, and general welfare, nor would it cause traffic congestion or create fire hazards. Similar testimony was produced by other witnesses called in behalf of the appellees.

The gist of the appellants’ testimony was that they did not want to see any variance or exception granted. They felt that if the exception were to be granted it would be the beginning of a change in the whole block, and that traffic congestion would develop. The Board granted the appellees’ petition subject to five (5) restrictions. The circuit court affirmed.

In this Court the appellants argue:

“I. The Board ... rendered its opinion without the legally required showing of proof of practical difficulty or unreasonable hardship by the Appellees.
II. The Board ... rendered its opinion without regard to the spirit and intent of the zoning regulations for Baltimore County.
III. The Board ... committed major procedural error by permitting the appellees to introduce new evidence after the appellees had closed their case and after the appellants had closed their case.
IV. The Circuit Court committed error in holding that the evidence presented before the Board... was sufficient for them [the members of the Board] to rule in favor of a special exception.”

We read the appellants first and second issues to be but one and that is that the evidence before the Board was insufficient to sustain its findings. There is no need to enter into a prolonged discourse in which we summarize the evidence. The testimony of the professional engineer was sufficient for the Board to rule as it did. All that is required by courts in reviewing a Board’s determination is that the Board’s decision be based on fairly debatable evidence. Gowl v. Atlantic Richfield Co., 27 Md. App. 410, 341 A. 2d 832 (1975). The testimony of the engineer, by itself, was sufficient to trigger the “fairly debatable” standard. It is not the function of the courts to retry or second guess the Board. When there is fairly debatable evidence the courts must refrain from substituting their judgment for that of the Board. Commissioner, Baltimore City Police Department v. Cason, 34 Md. App. 487, 368 A. 2d 1067 (1977); Gowl v. Atlantic Richfield Co., supra; Von Lusch v. Board of County Commissioners of Queen Anne’s County, 24 Md. App. 383, 330 A. 2d 738 (1975).

We agree with Judge DeWaters that the evidence was sufficient to entitle the Board to grant a variance and exception.

After the parties had seemingly closed their presentations of evidence, Mr. Coady was recalled by the appellees for “redirect examination.” An objection to his testimony was sustained. Nevertheless, he continued to answer without further objection the questions put to him by his counsel and was cross-examined by Ms. Ginn. The latter was recalled by-the protestants and her testimony was received. Appellants complain that the Board erred in receiving evidence from Coady after the testimony had been closed.

A zoning board, along with other administrative agencies, is generally not bound by the technical rules of evidence although it must observe fundamental fairness in dealing with the parties who appear before it. Fairchild Hiller Corp. v. Supervisor of Assessments, 267 Md. 519, 298 A. 2d 148 (1973); Dal Maso v. Board of County Commissioners of Prince George’s County, 238 Md. 333, 209 A. 2d 62 (1964); Md. Annotated Code art. 41, § 252. The appellants, in the instant case, objected to two of the questions asked Mr. Coady. They did so on the basis of the evidence’s having been closed. Both times they objected their objections were sustained. What appellants did not do was to continue to object to the subsequent questions. Thus, the answers to those questions were admitted into evidence and, inferentially, considered by the Board. The initiative in excluding answers to improper questions rests upon the shoulders of the opposing party. If the opponent fails to object, he will not later be heard to-complain that the evidence should not have been admitted. Baltimore & Ohio R.R. v. Black, 107 Md. 642, 658, 69 A. 439 (1908); 1 Wigmore on Evidence § 18 (3d ed. 1940). The failure to object to the questions as propounded constitutes a waiver. State Roads Commission v. Bare, 220 Md. 91, 151 A. 2d 154 (1959). See also Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975). Inasmuch as there were no objections to the questions that the appellants now find objectionable, the objections were waived and the Board did not err in considering the answers to those questions. The Board, in an apparent attempt to be fair, allowed the appellants to reopen appellants’ case and offer additional testimony. Even if the matter of waiver were not present, we would, under the circumstances, be hard pressed to hold that the Board denied appellants fundamental fairness.

We have said the Board had before it sufficient evidence to support its findings. It follows then that the circuit court did not err in affirming the Board.

Appeal as to Mary Elizabeth Ginn dismissed.

Judgment affirmed.

Costs to be paid by appellants.

      . In his “Essay on Criticism.” Part II 1. 15.

      . George Bernard Shaw (1856-1950) expressed it: “Beware of false knowledge; it is more dangerous than ignorance.”

      . See Largo Civic Asan, v, Prince George's Co., 21 Md. App. at 81, wherein we suggested that in order to simplify the issue of whether an individual was a proper party, a “sign-in-sheet” or list of the names of those in attendance be made by the agency and included as part of the record,

      . An “aggrieved party” is one whose property right or specific interest is affected bv a zoning or rezoning decision m a way that is different from that suffered by the public generally. Jahnigen v. Staley, 245 Md. 130, 135, 225 A. 2d 277, 280 (1967); Alvey v. Hedin, 248 Md. 334, 339, 221 A. 2d 62, 64 (1966); DuBay v. Crane, 240 Md. 180, 185, 213 A. 2d 487, 489-90 (1965).

      . Baltimore County Charter, § 604 provides that an “aggrieved” person may appeal to the “circuit court of [»c] Baltimore County, which shall have power to affirm the decision of the board, or, if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing...

      . Md. Ann. Code art. 10, § 1 provides as follows:
      “A person, except as provided in '§ 14A of Article 27 of the Annotated Code, may not practice the profession or perform the services of an attorney-at-law within this State without being admitted to the bar as hereinafter directed; and any person who shall give legal advice, represent any person in the trial of any case at law or in equity ... for pay or reward shall be deemed an attorney-at-law for purposes of this article.”

      . The Attorney General, any organized bar association of this State, or bar counsel may maintain an action to enjoin the unauthorized practice of law. Md. Ann. Code art. 10, §§ 26A (a) and (b). See also Lukas v. Bar Ass’n, 35 Md. App. 442, 371 A. 2d 669, cert. denied, 280 Md. 733 (1977).

      . It might be argued that we should dismiss the appeal as to all appellants because the brief was written in their behalf by Ms. Ginn. We know of no rule of law or procedure that requires such action, nor shall we impose it even if it does exist.

      . John A. Parley, Jr., Esq. and John T. Coady, Esq.

      . Baltimore County Zoning Regulations § 807 provides:
      “The Zoning Commissioner of Baltimore County and the County Board of Appeals, upon appeal, shall have and they are hereby given the power to grant variances from height and area regulations, from offstreet parking regulations and from sign regulations, only in cases where strict compliance with the Zoning Regulations for Baltimore County would result in practical difficulty or unreasonable hardship. No increase in residential density beyond that otherwise allowable by the Zoning Regulations shall be permitted as a result of any such grant of a variance from height or area regulations. Furthermore, any such variance shall be Eranted only if in strict harmony with the spirit and intent of said eight, area, offstreet parking, or sign regulations, and only in such manner as to grant relief without substantial injury to public health, safety, and general welfare. They shall have no power to grant any other variances. Before granting any variance, the Zoning Commissioner shall require public notice to be given and shall hold a public hearing upon any application for a variance in the same manner as in the case of a petition for reclassification. Any order by the Zoning Commissioner or the County Board of Appeals granting a variance shall contain a finding of fact setting forth and specifying the reason or reasons for making such variance.”

      . The five (5) restrictions embodied in the Board’s order are:
      “(1) That no parking area shall extend beyond the building line of the front of the main structure of the subject property (excluding the porch);
      (2) That access to the parking area shall be from the alley to the rear of the subject property; that there shall be no vehicular ingress and/or egress to the subject property from Allegheny Avenue;
      (3) That there shall be no enlargement of the existing front porch (facing Allegheny Avenue), and any enclosure of said porch shall be limited to one (1) story in height;
      (4) The approval of the site plan by the Office of Planning and Zoning;
      (5) Subject to full compliance with the Baltimore County Executive Order of December 1, 1974 implementing a storm water management program, as required by the provisions of the Interim Development Control Act.”


author: Moylan, J.,

text:
    LAWRENCE SAMUEL GRAY a/k/a Lawrance Samuel Gray a/k/a Launce Samuel Gray v. STATE OF MARYLAND
    [No. 1410,
    September Term, 1978.]

      Decided July 16, 1979.

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

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Michael P. Whalen, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Despite the urgings of the appellant, Lawrence Samuel Gray, to the contrary, the common law is still alive and well in Maryland. More particularly, that portion of the common law which we today hold still prospers upon these shores is the common law misdemeanor of criminal attempt.

A word, first, as to it. The notion that an attempt to commit a crime — any crime, felony or misdemeanor, statutory or common law, preexisting or of later origin — is itself a crime came relatively late into Anglo-American jurisprudence. It had its origins in the Court of Star Chamber, during Tudor and early Stuart times. Its crystallization into its present form, however, is generally traced to the case of Rex v. Scofield, Cald. 397, in 1784. The court held in Rex v. Scofield, “The intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality.” The doctrine was locked into its modern mold by 1801 with the case of Rex v. Higgins, 2 East 5. Relying on Scofield, the court in Higgins confirmed a conviction, saying, “All offenses of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable.” In the wake of Scofield and Higgins, it was clear that an attempt to commit any felony or misdemeanor, of common law origin or created by statute, was itself a misdemeanor.

The crime of criminal attempt consisted of 1) a specific intent to do a criminal act and 2) some act in furtherance of that intent going beyond mere preparation. LaFave and Scott, supra, p. 423; Perkins, Criminal Law (2nd Ed. 1969), p. 552.

It is, furthermore, clear that the common law misdemeanor of criminal attempt, notwithstanding its post-Revolutionary final crystallization, has always been recognized as part of the common law of Maryland. Hochheimer, Crimes and Criminal Procedure (2nd Ed. 1904), p. 297-298; Franczkowski v. State, 239 Md. 126, 127, 210 A. 2d 504 (1965); Wiley v. State, 237 Md. 560, 563-564, 207 A. 2d 478 (1965); Lightfoot v. State, 278 Md. 231, 360 A. 2d 426 (1976); Lightfoot v. State, 25 Md. App. 148, 334 A. 2d 152 (1975); Fisher v. State, 1 Md. App. 505, 231 A. 2d 720 (1967).

We turn now to the appellant’s central thesis. He was convicted by a Prince George’s County jury, presided over by Judge Albert T. Blackwell, of attempted second degree rape and false imprisonment. He received a ten-year sentence for the attempt and a concurrent five-year sentence for the false imprisonment. He now argues that there is no such crime as attempted second degree rape.

The thrust of the appellant’s argument is that the General Assembly by Chapter 573 of the Acts of 1976 preempted the “Sexual Offenses” field when it repealed a number of preexisting statutes dealing with rape and related offenses and enacted in their stead the present Sections 461-465 of Article 27. The appellant relies heavily upon the editorial comment from “Rape and Other Sexual Offenses Law Reform in Maryland, 1976-1977,” 7 U. of Balto. L. Rev. 150, 152 (1977):

“During the 1976 and 1977 legislative sessions, the Maryland Legislature enacted significant and comprehensive legislation which codified Maryland law on rape and other sexual offenses.”

We cannot agree with the appellant’s position. We note initially that the Legislature gave no indication that it intended the new subtitle to repeal or replace the common law misdemeanor of criminal attempt with respect to the substantive offenses it was then enacting. Indeed, the operative sections — § 462 (First degree rape); § 463 (Second degree rape); § 464 (First degree sexual offense); § 464A (Second degree sexual offense); § 464B (Third degree sexual offense) and § 464C (Fourth degree sexual offense) — embrace only consummated conduct and not attempts to commit the same.

Additional evidence of the fact that the Legislature did not intend to preempt the entire field of criminal sexual activity was the non-repealer of § 553 (Sodomy) and § 554 (Unnatural or perverted sexual practices).

Even confined to non-consensual sexual activity, the appellant’s argument as to total preemption of the field must fail. The Legislature, in enacting the new “Sexual Offenses” subtitle did not repeal § 12 dealing with assault with intent to rape.

For inchoate, not fully-consummated crime, society has long had available in its arsenal both the statutory offense of “assault with intent to ...” and the common law offense of criminal attempt. Although these two offenses have a significant overlap, they are nonetheless distinct and each addresses certain pockets of inchoate criminal activity not covered by the other.

Before turning specifically to the impact of the newly articulated statutory offense upon the inchoate crime of attempting to commit the new statutory offense, an additional preliminary word is in order about the spirit with which we approach the possible erosion of our common law. That spirit can best be understood when we remember that the common law of England is constitutionally guaranteed to the citizens of Maryland — that in enacting our very charter of liberty we provided “That the Inhabitants of Maryland are entitled to the Common Law of England....” The protection of our citizens against inchoate crime is part of that original entitlement, embedded in our very charter of statehood, and we do not lightly — by mere implication — dissolve so venerable a guarantee.

This attitude was early expressed by Hooper v. Baltimore, 12 Md. 464, 475 (1859):

“In Dwarris on Statutes, 695, it is said, ‘As a rule of exposition, statutes are to be construed in reference to the principles of the common law. For it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced.’ ” (Emphasis in original) See also Keech v. Baltimore & Washington R. Co., 17 Md. 32, 45 (1861); Harrison v. State, 22 Md. 468, 488 (1864); Greenwood v. Greenwood, 28 Md. 370, 386 (1868); Heiskell v. Baltimore, 65 Md. 125, 151, 4 A. 116 (1886).

In Lutz v. State, 167 Md. 12, 172 A. 354 (1934), the appellant claimed that the newly enacted (1920) statute proscribing “Prostitution, Lewdness and Assignation” superseded and thereby repealed the common law offenses of maintaining a bawdy house and maintaining a disorderly house. In holding otherwise, the Court of Appeals said at 167 Md. 15:

“In 25 R. C. L. 1054, it is said that: ‘It has been said that statutes are not presumed to make any alterations in the common law further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law. The rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language. In order to hold that a statute has abrogated common law rights existing at the date of its enactment, it must clearly appear that they are repugnant to the act, or the part thereof invoked, that their survival would in effect deprive it of its efficacy and render its provisions nugatory.’
Where however, a statute and the common law are in conflict, the common law yields to the statute to the extent of the inconsistency {Sutherland on Stat. Const, sec. 294; 12 C.J. 186), and a statute which deals with an entire subject matter is generally construed as abrogating the common law as to that subject.”

See also Gleaton v. State, 235 Md. 271, 277, 201 A. 2d 353 (1964); State v. Gibson, 4 Md. App. 236, 247, 242 A. 2d 575 (1968); Watkins and Kingwood v. State, 42 Md. App. 349, 400 A. 2d 464 (1979).

The Maryland attitude is consistent with that of our sister legatees of the common law tradition. The general rule in this regard is discussed in 3 Sutherland Statutory Construction 41 (Sands ed. 1974):

“... The rule has been declared by the United States Supreme Court, as follows: ‘No statute is to be construed as altering the common law, further than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.’ ”

The statutory crime now in issue is § 463 (Second degree rape):

“(a) What Constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the consent of the other person; or
(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or
(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.”

Putting aside for a moment the mechanism spelled out in subsection (1) or the status of the victims spelled out in subsections (2) and (3), the operative verbal phrase is “engages in vaginal intercourse.” It is obvious that one might specifically intend vaginal intercourse and might take some step beyond mere preparation in execution of that intent (the two necessary elements for the common law misdemeanor of criminal attempt) and yet might fail to consummate the intended act. Since § 463 does not proscribe the attempted perpetration of the crime, it clearly does not preempt the field in that regard. The appellant goes further and urges that any such attempt would, in any event, fall under the umbrella of § 12, proscribing assault with intent to rape.

Once again, it does not take a great flight of imagination to spell out physical acts, beyond mere preparation, in furtherance of an attempted rape which do not necessarily constitute assault.

The hypothetical, below N.7, straight from the “Perils of Pauline,” disposes, in passing, of the appellant’s back-up position that whatever would be an attempted second degree rape would be, ipso facto, a violation of § 464C (a) (1) which provides:

“(a) What constitutes. — A person is guilty of a sexual offense in the fourth degree if the person engages:
(1) In sexual contact with another person against the will and without the consent of the other person.”

Once again, it is obvious that there could be many acts, beyond mere preparation, taken in furtherance of an attempted crime which do not involve literal “contact,” the sine qua non of a fourth degree sexual offense. That § 464C (a) (1) was not intended to be simply the non-consummated version of second degree rape is obvious, looking in either direction. Even where the attempted second degree rape involves sexual contact, it is clear that sexual contact accompanied by a specific intent to rape is a graver offense than sexual contact absent such intent, with its minimal penalty provision of “not more than one year.” Looking in the other direction, it is equally clear that every unauthorized caress is not, ipso facto, attempted rape. § 464C (a) (1) simply does not preempt the field of attempted rape.

The appellant objects additionally to the use of his testimony at a suppression hearing, as a prior inconsistent statement, to impeach the credibility of later testimony to the contrary. There is nothing in Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968), that precludes the use of testimony at a suppression hearing for such a purpose. Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Haas, 420 U. S. 720, 95 S. Ct. 1215, 43 L.Ed.2d 570 (1975).

The appellant also contends that the conviction for false imprisonment should have been merged into the conviction for attempted rape in the second degree. The sentences were concurrent and the point was not preserved for appellate review. Maryland Rule 1085.

The appellant finally contends that his confession was involuntary because it was induced by promises to take him back to work. We have reviewed the transcript thoroughly in this regard and the point is frivolous.

Judgments affirmed; costs to be paid by appellant.

      . See generally Sayre, Criminal Attempts, 41 Harv. L. Rev. 821 (1928), and Hall, General Principles of Criminal Law, 558-74 (2nd Ed. 1960).

      . LaFave and Scott, Criminal Law (1972), p. 424.

      . It cannot be claimed that the Legislature overlooked these sections for the same Chapter 573 of the Acts of 1976 which restructured the rape and rape-related offenses also made several minor stylistic changes to § 553 and § 554.

      . Again, a definitional change and a change in the maximum sentence was made by Chapter 290 of the Acts of 1977, indicating inter alia, that the Legislature was well aware that § 12 was still viable. See also Christensen v. State, 33 Md. App. 635, 365 A. 2d 562 (1976).

      . For an analysis of the similarities and the differences, see the excellent discussion by Chief Judge Gilbert in Christensen v. State, supra.

      . Article 5, Maryland Declaration of Rights.

      . Picture a resourceful bounder bent upon vaginal intercourse 1) by force or threat of force or 2) with a female under 14 years of age or 3) with a mental defective or mentally incapacitated female. Picture him, further, preparing soft music, candlelight ana wine at some isolated place of assignation; luring his intended inamorata to the spot by a wide variety of ruses; sending a taxicab to bring her to the trysting place; pouring “knockout” drops into the cup;’ and then seeing the best laid plans of mice and men go awry only at the last available moment, when the fire bell rings just as the would-be victim takes the chalice to her lips. There has been a criminal attempt, and yet there has been no assault. Q.E.D.

      . Were the appellant to prevail in this regard, junior proms en masse would have to adjourn from the Belvedere Hotel to the House of Correction.


author: Melvin, J.,

text:
    ALFORD ROBUS CAREY, JR. v. STATE OF MARYLAND
    [No. 728,
    September Term, 1978.]

      Decided September 6, 1979.

      The cause was argued before Moore, Melvin and MacDaniel, JJ.

      George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, T. Joseph Touhey, District Public Defender, and Louis P. Willemin, Assistant Public Defender, on the brief, for appellant.

      Sally B. Gold, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Deborah E. Jennings, Assistant Attorney General, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The appellant, Alford Robus Carey, Jr., was found guilty of five counts of bribery (Md. Code Ann., Art. 27, § 23) and one count of extortion (Art. 27, § 562). His four day trial on these charges took place in December 1977, in the Circuit Court for Anne Arundel County before Judge E. Mackall Childs, presiding without a jury. After the completion of the trial on December 22, 1977, the judge took the case under advisement and on January 9, 1978, read and filed in open court a written 27% page “Memorandum of Opinion” that reviewed in detail the voluminous evidence and set forth the verdicts and reasons therefor. Appellant was sentenced on February 27, 1978.

In this appeal, the appellant does not contest the sufficiency of the evidence either as to his criminal agency or the corpus delicti of the crimes for which he was convicted. He presents five questions for our consideration.

“1. Did the trial judge deny Appellant due process of law in failing to disqualify himself?
2. Did the trial court err in failing to dismiss the indictment as violative of a prior plea bargaining agreement?
3. Did the trial judge err in admitting testimony under the co-conspirator’s exception?
4. Did the trial judge err in refusing to strike unsupported opinion testimony?
5. Did the trial court err in convicting Appellant of bribery and extortion for the same act?”

Our answer to each of the questions is “No.” The judgments of conviction will therefore be affirmed.

I

Due Process

Appellant argues that because Judge Childs did not accede to his request to disqualify himself, he was denied due process. He argues that prior to the trial on the merits the judge “exhibited prejudice toward both appellant and his counsel” and that the judge harbored “a preconceived determination of Appellant’s guilt” that deprived him “of a fair opportunity to present the issues and denied him the fair tribunal required by Due Process.”

We note at the outset that with respect to the trial itself the appellant refers us to no comment, no ruling or any other evidence that would reflect the judge’s alleged predetermination of appellant’s guilt or that appellant was “denied a fair opportunity to present the issues.” We also note that appellant was afforded the opportunity to remove the case to another jurisdiction for trial and that although he had initially prayed a jury trial he subsequently — after the judge refused to disqualify himself — elected a court trial and did not take advantage of the judge’s offer to remove the case. We are not told by appellant why, if he was so concerned about the judge’s alleged bias, he did not elect one or both of these alternatives that were available to him.

Where a defendant in a criminal case alleges prejudice or bias as a ground for the judge to recuse himself, it is the defendant’s burden to show that the judge by his words or actions has demonstrated a hostile feeling or spirit of ill will against him or his counsel of such a character as might prevent the judge from giving him a fair trial. See 46 Am. Jur. 2d, Judges, § 220 (1969). The burden borne by the defendant in this regard is a substantial one. This is so because of the “assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence.” State v. Babb, 258 Md. 547, 550, 267 A.2d 190 (1970). See, also, State v. Hutchinson, 260 Md. 227, 271 A.2d 641 (1970). The appellant has failed to meet that burden in the case before us.

In ruling on the motion to disqualify himself, Judge Childs said:

“This court has no disposition whatsoever as to Mr. Carey. I’ve never seen him before and couldn’t care less to whether he prevails or fails to do so in this particular case.... I take a completely dispassionate view of the outcome of Mr. Carey’s problems.... I think the testimony will stand on its own feet one way or the other; and frankly again I would reiterate that whether Mr. Carey is found guilty or innocent is no concern of mine. I expect to call it as I see it; and as of this point I see no reason whatsoever for disqualification.” (Emphasis added).

Our review of the record, including Judge Childs’s detailed memorandum opinion at the close of the case, convinces us that the judge did exactly what he said he would do, i.e., “call it as I see it.” We are not persuaded that he did otherwise, as alleged by the appellant, merely because he had found the appellant’s co-defendant guilty in a prior non-jury trial. Participation in prior legal proceedings involving related parties or issues is simply not grounds for a judge to recuse himself. United States v. Partin, 552 F.2d 621 (5th Cir. 1977); Laws and Dorman v. State, 7 Md. App. 84, 253 A.2d 780 (1969). Nor are we persuaded otherwise by the fact that the judge acceded to the State’s suggestion to grant a defendant in another case a new trial and accept a plea of nolo contendere whereby that defendant received a suspended sentence for obstruction of justice (rather than perjury) so he would be available to testify for the State in the on-going investigation of the public school construction program. Appellant argues that this action by the judge “actively assisted the State in its prosecution of him”.(We note, however,, that the would-be witness did not testify at appellant’s trial on the merits. We also note that the action of the. judge in granting the defendant a new trial in the other case took place on June 1, 1977, weeks after the appellant’s originally scheduled trial date and after the State had made numerous attempts to bring the case to trial for which it was presumably fully prepared before June 1, 1977. It seems highly unlikely, therefore, that the judge’s action did in fact assist the State in its case against the appellant. Moreover, even assuming the judge thought that his action would be helpful in ferreting out the truth, this is not to be equated with disqualifying bias or prejudice likely to prevent a fair trial. See, United States v. Liddy, 166 U.S. App. D. C. 95, 509 F.2d 428 (1974), cert. denied, 420 U.S. 911 (1975); United States v. McCord, 166 U.S. App. D. C. 1, 509 F.2d 334 (1974), cert. denied, 421 U.S. 930 (1975); United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976); compare, In Re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955).

Appellant argues further that the trial judge’s determination “to hold his ruling on appellant’s pretrial motion to dismiss sub curia in order to thwart any interlocutory appeal and move the case immediately to trial” is another indication of the judge’s bias or prejudice. We see no merit whatsoever to this argument. As a belated additional ground for the motion to dismiss the charges against him, appellant claimed that his trial was barred on double jeopardy grounds. When the judge decided to hold the matter sub curia until after trial on the merits, appellant appealed to this Court. It is true, of course, that denial of a motion to dismiss on double jeopardy grounds is immediately appealable, Neal v. State, 272 Md. 323, 322 A.2d 887 (1974), and that failure to rule on a motion bottomed on those grounds before trial constitutes error, Claybrooks v. State, 36 Md. App. 295, 374 A.2d 365 (1977). As it turned out in this case, however, trial on the merits did not take place until after the double jeopardy claim had been rejected by this Court. See Carey v. State, 37 Md. App. 689, 379 A.2d 178 (1977), cert. denied December 5, 1977. In any event, Judge Childs’s initial determination to hold the matter sub curia until after trial, does not, in our opinion, form the basis for his disqualification. “... [N]o deduction of bias and prejudice may be made from adverse rulings by a judge, whether they are right or wrong.” 46 Am. Jur. 2d, Judges, § 221 (1969).

Finally, on the issue of disqualification, appellant argues that Judge Childs “exhibited hostility toward appellant’s counsel during the course of the proceedings”. Here, we are referred only to the fact that nearly four months before the trial of this case the judge had recused himself in an unrelated civil matter in which appellant’s counsel represented one of the parties. The judge explained on the record his reasons for the recusement. While we agree that the record of pre-trial proceedings in this case does reflect a certain amount of mutual antipathy between the judge and defense counsel, we cannot say that so far as the judge was concerned there has been any showing of that degree of personal bias or prejudice toward defense counsel that would indicate the likelihood that the appellant would not receive a fair and impartial trial. “A judge may, with or without cause, cordially dislike and even distrust an attorney and yet be capable of doing exact justice towards his client.” Shakin v. Board of Medical Examiners, 254 Cal. App. 2d 102, 62 Cal. Rptr. 274, 287, 23 A.L.R. 3d 1398, 1415 (1967), app. dism’dand cert. denied, 390 U.S. 410 (1968).

In sum, we conclude that none of the arguments advanced by the appellant, either alone or in combination, form the basis for holding that Judge Childs’s failure to disqualify himself denied the appellant due process of law.

II

The Prior Plea Bargaining Agreement

The appellant was indicted in the present case on August 30,1976. On November 15,1976, he filed a motion to dismiss the indictment alleging the violation of a plea bargaining agreement in a prior case in which he had pled guilty to forgery and false pretenses. The charges in the prior case arose out of appellant’s activities as Executive Director of the Interagency Committee on School Construction. They were unrelated to the charges in the present case. See Carey v. State, 37 Md. App. at 694. The appellant allegedly prepared and approved a false invoice in the amount of $22,105.19 dated November 1, 1978 for work that had not been performed by a sub-contractor. Through various machinations he received the proceeds and used them to pay his personal debts. On January 9, 1976, after protracted negotiations, he entered a guilty plea to the prior charges pursuant to a plea bargaining agreement. The following language of the written agreement referring to the possibility of future prosecutions was ultimately agreed upon:

“In closing, it is appropriate to place upon the record the precise limits of the State of Maryland’s agreement not to seek further indictments against Defendant Carey. This agreement extends only to the specific matters discussed in this exposition and to any other crimes based upon evidence already in the possession of and fully developed by the State of Maryland as of this date. To the extent then that such additional criminal acts of Defendant Carey might be developed in the continuation of this investigation the State has given no assurances to him and expressly reserves the right to seek indictments and to prosecute for such acts.” (Emphasis added.)

Appellant contends that the State’s action in bringing the bribery and extortion charges after having entered into the plea bargain was a breach of the agreement and that the trial court erred in not granting his motion to dismiss the present indictment because of that breach. As we understand appellant’s argument, it is that because the State was investigating bribery and extortion charges in connection with the school construction program at the time of the plea bargain, the State is barred by the agreement from bringing the present indictment.

As we see it, the only issues presented by the agreement are: 1) Does the present indictment cover “specific matters” set forth in the “exposition” at the prior trial?, and 2) Is the present indictment based upon evidence that was in the State’s possession and “fully developed” on January 9,1976, the date of the guilty plea? The appellant does not argue the first issue. He argues, however, that the second issue should be answered in the affirmative. The answer depends upon the factual evidence. Both Judge Evans and Judge Childs, after extended hearings, determined the answer adversely to the appellant. Our review of the record leaves us unconvinced that these rulings were erroneous, much less clearly erroneous. We shall therefore not disturb them. Maryland Rule 1086.

Ill

The Co-Conspirator Exception

At trial one of the State’s principal witnesses was George W. Hargest who testified, over appellant’s objection, as to what another person (John O. Bishop) had told Hargest concerning the bribery scheme involving the appellant. This testimony was admitted on the basis of the “co-conspirator exception to the hearsay rule”. On appeal, appellant does not contest the validity of the general rule that statements made by one co-conspirator (Bishop) in furtherance of the conspiracy are admissible against another co-conspirator (the appellant). Nor does the appellant argue that there was no conspiracy shown. Nor does he question the applicability of the hearsay exception even though, as in this case, the defendant was not formally charged with conspiracy. What is argued here is that there is an exception to the general rule under which Hargest’s hearsay testimony would otherwise be admissible. The appellant asserts on appeal that because the statute of limitations had run on the crime of conspiracy the hearsay testimony was inadmissible. Citing United States v. Klosterman, 248 F.2d 191, 195 (3rd Cir. 1957) for the proposition that “evidence of conspiracy may not be introduced against a defendant who has been acquitted of the conspiracy charge”, appellant asserts that because of the statute of limitations he “is in the same position as if he had been tried and acquitted of conspiracy” and therefore the hearsay testimony offered by Hargest should have been excluded.

The difficulty with this contention is that it was not made at the trial below. Although appellant did object to the hearsay testimony of Hargest, his counsel’s stated ground for the objection was simply “inadequate foundation”. Despite the trial judge’s specific reference to the co-conspirator exception as the reason for admitting the testimony and the State’s specific reference to the statute of limitations, appellant never once suggested to the trial judge that the general rule was inapplicable because of the passage of time. The trial judge, therefore, had no opportunity to rule on the issue now being raised in this appeal. Under the circumstances, the issue is not properly before us for review and is deemed to have been waived as a ground for the objection. See Md. Rules 761, 522 d, and 1085. See, also, von Lusch v. State, 279 Md. 255, 263, 368 A.2d 468 (1977).

rv

Denial of Motion to Strike Accountant’s Testimony

Irving Machiz, a Certified Public Accountant, whose qualifications were not questioned by the appellant, testified that for the period in question he analyzed all of appellant’s known sources of income, correlated the income to his bank deposit records, and determined that there were approximately $16,500 in “unexplained currency deposits by Mr. Carey”. From documentary evidence before the court, he determined that these “unexplained deposits” corresponded both in time and approximate amount to the sums Hargest said he paid the appellant in furtherance of the bribery scheme. In cross examination, appellant’s counsel challenged the accuracy of the $16,500 figure by attempting to show, in a general way, that the $16,500 could have represented sums deposited by the appellant that he received from legitimate sources of which Machiz was unaware. Machiz admitted this possibility, but said he had labelled the $16,500 as “unexplained currency deposits” only after considering all evidence that was available to him — “primarily” the documentary exhibits that were already in the case. He conceded that his analysis was based “in part” upon evidence that was not before the court. He explained, however, that he used this other evidence in an attempt to identify or explain the source of all bank deposits made by appellant during the period in question. For example, he said he had “read transcripts of interviews of Mr. Carey by the State’s Attorney and the State Police in this connection” and “also used information that Mr. Carey submitted when he applied for a loan in connection with the background, the possibility of having cash, so we could give him credit if we found evidence of it”. He had earlier testified that, “All loans were credited.”

At the conclusion of the State’s case, appellant moved to strike all of Machiz’s testimony on the ground, reiterated on appeal, that his “opinion” was “based upon documents and testimony that is not in evidence”. Judge Childs denied the motion, saying “as far as I’m concerned he was basing his conclusion on documentary evidence that he had.” We find no error in that ruling.

Actually, Machiz was not called upon to state and did not state an opinion that the $16,500 was bribe money. To the contrary, he testified that based on an accounting analysis of a variety of exhibits in evidence he was unable to explain the source of the $16,500 that appellant had deposited in his bank accounts during the period in question. He further testified, again from exhibits in evidence, that these sums ($16,500) appeared in appellant’s bank accounts during the same period of time that Hargest had previously testified he had been paying bribes to the appellant in comparable amounts.

As we see it, the only effect of appellant’s cross examination of Machiz was to raise the mere possibility that the $16,500, otherwise unexplained by the exhibits in evidence (and otherwise unexplained by any evidence offered by the appellant), could have had a known non-culpable source. This is purely a matter of the weight of the evidence and, in our judgment, is not a basis for excluding Machiz’s testimony in its entirety. This is not a case calling for the invocation of the general rule that an expert’s opinion should not be admitted unless predicated upon facts in evidence or proffered to be proved. Compare Noble v. Director, 32 Md. App. 192, 359 A.2d 253 (1976).

V

Bribery and Extortion Convictions

Count Five of the indictment charged that on or about January 16, 1973, the appellant, in violation of Maryland Code, Article 27, Section 23, “did unlawfully and corruptly demand a bribe, fee, reward and testimonial, to wit: Seven Thousand Five Hundred Dollars ($7,500.00), the precise amount being unknown to the Grand Jurors, but said amount representing all or part of certain ‘sales commission’ checks to be drawn by Globe Industries, Inc.,... payable to George W. Hargest, for the purpose of influencing [the appellant] in the performance of his official duties..(Emphasis added.)

Count Thirteen of the indictment charged that appellant, in violation of Maryland Code, Article 27, Section 562, on or about January 16, 1973, “feloniously and corruptly did threaten Vernon Morton, in his capacity as Vice President and agent of Globe Industries, Inc. ... to foreclose, prevent, and bar any contracts by the said Globe Industries, Inc., with the Public School Construction Program of the State of Maryland, thereby threatening to do injury to the property of said Globe Industries, Inc., with the view... to extort and gain from the said Globe Industries, Inc., certain money, to wit:... $7,500.00....” (Emphasis added.)

The trial court found appellant guilty of both counts. On appeal, appellant contends that his convictions of both counts “cannot stand” because “the offenses of Bribery and Extortion are mutually exclusive” and because “the finding of voluntary payment implicit in the conviction of Bribery is inconsistent with the finding of duress inherent in the conviction of extortion”. Although this issue was not raised or decided below we shall, nevertheless, consider it here as it does not appear that precisely the same sentence was imposed for each of the two counts involved. See Slye v. State, 42 Md. App. 520, 401 A.2d 195 (1979); Brooks v. State, 38 Md. App. 550, 552, 381 A.2d 718 (1978); aff'd. 284 Md. 416, 397 A.2d 596 (1979); Rose v. State, 37 Md. App. 388, 377 A.2d 588, cert. denied, 281 Md. 743 (1977).

We do not agree that the crimes charged in Count Five and Count Thirteen are “mutually exclusive” or, as implied by appellant, that convictions of both counts result in inconsistent judgments. The “bribery” charged in Count Five consisted of the “demand by a public official for money for the purpose of influencing [that official] in the performance of his official duties”. This conduct is proscribed by Article 27, Section 23 of the Maryland Code. The “extortion” charged in Count Thirteen consisted of the threat “to do injury to the property of ... Globe Industries, Inc.”, unless money was paid to the appellant. This conduct is proscribed by Article 27, Section 592.

As stated in Newton v. State, 280 Md. 260, 267, 373 A.2d 262 (1977), quoting from Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421 (1911), “ '[a] single transaction may be an offense against two statutes if each statute requires proof of a fact which the other does not’ Here, each offense has at least one distinct element not present in the other. Count Five requires proof that the criminal actor be an officer or employee of the State or of a political subdivision; Count Thirteen has no such requirement. Count Thirteen requires proof of a threat; Count Five does not. Count Thirteen requires proof that the threat be for the purpose of obtaining “money, goods or chattels or any other valuable thing” and does not require proof, as does Count Five, that the money sought is “for the purpose of influencing [a public official] in the performance of his official duties”.

The two offenses charged are not the same and we see no inconsistency in a finding of guilt as to each, even though the proscribed conduct arose from the same transaction. The fact that a public official may demand money to influence the performance of his official duties, and thus be guilty of bribery, does not mean that he may not also be guilty of violating the separate crime provided in Article 27, Section 562 (extortion), if the demand for money is accompanied by a threat that unless it is paid he will “do ... injury to the person or property” of the party upon whom the demand is made.

It should be noted that conviction of neither Count Five nor Count Thirteen required proof of payment to the appellant. It follows that, contrary to appellant’s assertion, there was no “finding of voluntary payment implicit in the conviction of Bribery [Count Five]”. The claim of inconsistency, therefore, rests on a false premise and is without merit. The cases from other jurisdictions, People v. Dioguardi, 8 N.Y.2d 260, 203 N.Y.S.2d 870, 168 N.E.2d 683 (1960), and Commonwealth v. Francis, 201 Pa. Super, 313, 191 A.2d 884 (1963), cited by the appellant to the effect that under certain circumstances and under certain statutes bribery and extortion are mutually exclusive crimes do not persuade us otherwise.

Judgments affirmed.

Costs to be paid by appellant.

      . Art. 27, Section 562 provides in pertinent part:
      “Every person who shall threaten ... to do any injury to the person or property of anyone, with a view to extort or gain any money ... shall be guilty of a felony____”

      . On Count Five appellant received a sentence of three years and a fine of $5,000.00. On Count Thirteen he received a concurrent term of imprisonment (three years) but no fine. In addition, as part of the total sentence in the ease, the appellant was required to “make restitution to the State of Maryland [of] the sum of Sixteen thousand five hundred dollars representing the bribes you have been found to have received in this case, and the three thousand dollars representing the sum that you have been found to have extorted”. It seems likely that, although Count Thirteen is the only extortion count of which appellant was found guilty, the judge was actually referring to Count Eleven in requiring restitution of $3,000.00, for it was that count that charged appellant with, on or about May 23, 1973, “demand[ing] and receiving] a bribe ... in the approximate amount of three thousand dollars ($3,000.00)”.
      We note that neither the bribery statute nor the extortion statute under which the appellant was charged provide for restitution as part of the penalty for their violation. The appellant, however, does not challenge here the legality of that part of his sentence. But see Md. Rule 774.