author: Moore, J.,

text:
    DAVID R. RIGGS v. STATE OF MARYLAND
    [No. 269,
    September Term, 1976.]

      Decided December 30, 1976.

    The cause was submitted on briefs to Powers, Davidson and Moore, JJ.
    Submitted by Gerald Adler, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and John F. Hanson, Assistant State’s Attorney for Baltimore County, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant, David R. Riggs, foundered inevitably in a check “kiting” scheme and was convicted, under charging documents, of two alleged violations of the Worthless Check Act, Maryland Code, Art. 27, § 142 (1957, 1976 Repl. Vol.). Although not specifically raised upon his motion for judgment of acquittal in the proceedings below, his appeal poses the question whether he should instead have been charged under the False Pretense Act, Art. 27, § 140. It is our conclusion that he was improperly charged and that the evidence was insufficient to convict under the Worthless Check Act.

I

On March 24,1975 appellant opened a checking account at the Maryland National Bank in Bel Air, Maryland with a $5 deposit. According to the signature card received in evidence, he was a student at the University of Maryland and his “special identification” was a Selective Service card from the State of Michigan. Shortly after opening the account, appellant made a series of fairly substantial deposits in the form of checks drawn on Canadian banks, on which he was both the drawer and the payee. The deposits present the following chronology:

April 1, 1975 — Check dated March 25, 1975 drawn on the Canadian Imperial Bank of Commerce, Calgary, Alberta, in the sum of $900, (the sum of $50 in cash was also deposited);

April 9, 1975 — Check dated April 5, 1975 drawn on the First Canadian Bank, Bank of Montreal, in the sum of $900;

April 17, 1975 — Check dated April 16, 1975 drawn on the First Canadian Bank, Bank of Montreal, in the sum of $900, (appellant also deposited the sum of $20 in cash on this date);

April 23, 1975 — Check dated April 19, 1975 drawn on the First Canadian Bank, Bank of Montreal, in the sum of $900;

May 2, 1975 — Check dated May 2, 1975 drawn on the Bank of Montreal, Sherbrooke, P. Q., in the sum of $2600; (this check was payable to cash).

With the exception of the cash deposits of $5, $50 and $20, above noted, the credits to appellant’s checking account consisted of the deposited checks drawn upon the Canadian banks. The first three, in the sum of $900 each, were returned to Maryland National Bank dishonored — but not until May 2, 1975. The $900 check dated April 19, 1975 was returned on May 28, and the May 2 check in the sum of $2600 was returned on June 9,1975.

The charges against appellant were based upon checks, payable to cash, drawn on his account at the Maryland National Bank, on April 18, 1975 and April 23, 1975, in the sum of $400 and $300, respectively. The evidence discloses that in each instance the check was presented by appellant himself and was cashed by a Maryland National Bank teller after his identification, a Maryland driver’s license and a Social Security card, had been scrutinized and also after a verification of sufficient funds had been obtained from the bookkeeping department. (The first check was cashed at the Satyr Hill Road branch in Perring Plaza and the second at the York Road branch, Towson.)

Curiously, the charging documents with respect to the alleged offenses stated that the two checks cashed by appellant at Maryland National Bank “did not clear because of insufficient funds,” and in each instance appellant was charged with a violation of Code, Art. 27, § 142.

Although appellant prayed a jury trial in the district court, when the matter came on for trial in the Circuit Court for Baltimore County, he elected a bench trial, Proctor, J. presiding. Appellant did not himself testify nor did he present any defense witnesses. A motion for judgment of acquittal, made at the close of the State’s case and renewed after the defense rested, was based only upon a claim that Art. 27, § 142 required that the banking institution send notice to the depositor when there is “an indication there is something wrong with the check.” This contention was properly rejected by the trial court. That the court’s action in doing so was eminently correct is not, however, dispositive of this appeal.

II

Where the trial court in a criminal case has denied a motion for judgment of acquittal at the conclusion of the case, the accused is entitled on appeal to have the court review the evidence to determine its sufficiency. If there was no legally sufficient evidence from which the jury could find him guilty beyond a reasonable doubt, the judgment must be set aside. Brooks v. State, 3 Md. App. 485, 511, 240 A. 2d 114, 130 (1967); Pressley v. State, 244 Md. 664, 667, 224 A. 2d 866, 868 (1966); Maryland Rule 755.

The Maryland Worthless Check Act, initially enacted in 1914, provides in pertinent part:

“Every person who, with intent to cheat and defraud another, shall obtain money, credit, goods ..., or anything of value ..., by means of a check, draft or any other negotiable instrument of any kind drawn, whether by such person or by any other person, persons, firm or corporation, upon any bank . .. and the same be not paid upon presentation, shall be deemed to have obtained such money, credit, goods, services ... or things of value by means of a false pretense.. . . The giving of the aforesaid worthless check, draft or negotiable instrument ... shall be prima facie evidence of intent to cheat or defraud; provided that if such person shall be a bona fide resident of the State of Maryland and shall deposit with the drawee of such paper .. . within ten days thereafter funds sufficient to meet the same, with all costs and interest which may have accrued he shall not be prosecuted under this section, and no prosecution either by presentment, indictment or otherwise, shall be instituted or commenced until after the expiration of said period of ten days.” (Emphasis added.) Art. 27, § 142.

The purpose of the statute is “to facilitate commerce and banking by averting the inconvenience and expense of handling worthless checks through banking channels, and the difficulty of collecting bills from those who give worthless checks, as well as to reduce the hazard of the loss of merchandise obtained by such checks.” Kaufman v. State, 199 Md. 35, 39, 85 A. 2d 446, 448 (1952). Its classic application is to the employment of a check in exchange for goods or money when the same check, upon being presented to the payor bank, is dishonored for lack of funds. See, e.g., Sinclair v. State, 21 Md. App. 477, 319 A. 2d 549 (1974), aff'd 274 Md. 646, 337 A. 2d 703 (1975); Taylor v. State, 7 Md. App. 558, 256 A. 2d 554 (1969); Flannigan v. State, 232 Md. 13, 191 A. 2d 591 (1963); Willis v. State, 205 Md. 118, 106 A. 2d 85 (1954).

There is, of course, a difference between § 142 (the Worthless Check Act) and § 140 (the False Pretense Act). The latter prohibits the obtention by “any false pretense” of any chattel, money or valuable security with intent to defraud. In Flannigan v. State, supra, where the defendant-appellant obtained money at a food market by cashing a worthless check and was convicted under both § 140 and § 142, Judge Prescott (later Chief Judge) said of § 142:

“This section, when the obtention of another's property has been achieved by means of a check for which the drawer has not provided for its payment (and the same shall not be paid upon presentation), raises a prima facie presumption of an intention to defraud. This presumption may be rebutted, but it is incumbent upon the accused to overcome the same and to satisfy the judge or jury (whichever is the trier of fact) that there was no actual intent to defraud.” (Emphasis added.) (Citations omitted.) 232 Md. at 18, 191 A. 2d at 593.

Later on in Flannigan, Judge Prescott held for the court that the appellant should not have been convicted under § 140 since a conviction thereunder, when a bad check is involved, does not require proof of an additional fact which is not essential to sustain a conviction under § 142. See Waye v. State, 231 Md. 510, 191 A. 2d 428 (1963). This Court in Baskerville v. State, 23 Md. App. 439, 327 A. 2d 918 (1974), which also involved a check “kiting” operation, affirmed appellant’s conviction under § 140 but, upon the authority of Flannigan, supra, we reversed his conviction under § 142. We found that appellant had properly been proceeded against under § 140, the False Pretense Act, and that the latter did not require proof of any fact not also needed to sustain a conviction under § 142, the Worthless Check Act.

In the instant case, the appellant was charged, as previously stated, only under the Worthless Check Act. That statute requires as a specific element of proof, the fact of dishonor on presentation: “and the same [check, draft or other negotiable instrument] be not paid upon presentation.” Art. 27, § 142. This element would not have been involved had the State elected to prosecute under § 140. Here, however, the two checks on which the State prosecuted the appellant, namely, the $400 and $300 checks, dated April 18 and April 23, 1975, respectively, made payable to cash, were never dishonored but were in fact paid by the drawee bank itself upon presentation. Inexplicably, they were cashed on the basis of a balance consisting of uncollected funds represented by the deposits of the checks drawn on the Canadian banks. However, the fact that the Canadian checks were eventually dishonored does not affect the finality of the payments in cash by Maryland National Bank on April 18 and April 23.

Appellant’s brief claims with some accuracy: “He is not charged with the presentation of the Canadian checks which were not paid when presented. Since the local [Maryland National Bank] checks were paid on presentation, there was no evidence to show a violation of the section under which the charges were brought.” Simply stated, appellant should have been prosecuted under the False Pretense Act, Art. 27, § 140. The requirement of the Worthless Check Act, Art. 27, § 142, under which he was charged and tried, that the same check which the alleged offender used to obtain money or property be dishonored upon presentation, was not established. “It is self-evident that the State, in order to convict for obtaining money or property by false pretenses, must, as in any other prosecution, prove as a fact every element necessary to constitute a crime.” MacEwen v. State, 194 Md. 492, 501, 71 A. 2d 464, 468 (1950); Willis v. State, supra, 205 Md. at 127, 106 A. 2d at 89. Indeed, the due process clause of the Fourteenth Amendment protects an accused in a state criminal cause against conviction except upon proof beyond a reasonable doubt of every element of the crime with which he is charged. In re Winship, 397 U. S. 358 (1970); State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975).

Although we need not reach appellant’s contention concerning the length of his sentence, we observe that the maximum sentence for a violation of § 142 is eighteen months where the value is under $500, and the imposition of a two year sentence was improper. See Mason v. State, 12 Md. App. 655, 280 A. 2d 753 (1971); Flannigan v. State, supra.

Judgment reversed; costs to be paid by Baltimore County.

      . This, the principal issue, is in effect raised by appellant’s contention that the evidence was insufficient to support his conviction. Appellant also claims error on evidentiary rulings and challenges the legality of his sentence to two consecutive two year terms.

      . Two bank statements of appellant’s account for closing dates of April 22 and July 22 were introduced into evidence. The April 22 statement indicates that 17 items (16 checks and 1 debit memo) were charged to his account, leaving a balance of $384.19 as of April 22. Appellant’s statement for the July 22 closing date showed a $3,560.74 overdraft, with 20 items including 13 checks and 7 debit memos. These debit memos reflect the dishonor of the Canadian checks. The July 22 statement shows the date of the previous statement as April 22.

      . In the light of our disposition of this case, we find it unnecessary to consider the impact upon the presumption thus created of Mullaney v. Wilbur, 421 U. S. 684 (1975) and Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd State v. Evans, 278 Md. 197, 362 A. 2d 629 (1976).

      . Quoting the rule that a single transaction may be an offense against two statutes if each requires proof of a fact which the other does not, Judge Prescott stated: “Applying that test to the instant case, it is readily observed that a conviction under § 142 requires ‘proof of a fact’ (a worthless check) that § 140 does not necessarily require. However, a conviction under § 140, when a bad check is involved, does not require ‘proof of a fact’ tliat is not essential to sustain a conviction under 8 142. Hence, we hold that appellant should not have been convicted on the fourth count. A holding to the contrary would mean that, when a worthless check is involved, a defendant could be subjected to a double sentence by the simple expedient of finding him guilty under both sections, even though but a single check was involved.”

      . Although a depository bank may provisionally settle with its customer, by extending credit while a deposited check is in the process of collection, thereby reserving its right of charge-back or refund, once the payor bank pays the item in cash, it is deemed to be final payment and the right of charge-back or refund is lost. See Md. Code, Uniform Comm. Code, §§ 4-212, 213 (1957, 1975 Repl. Vol.). Boggs v. Citizens Bank and Trust Company of Md., 32 Md. App. 500 (1976).

      . In Immel v. State, 228 Md. 566, 180 A. 2d 703 (1962), the court held, in a prosecution under § 140, that the mere deposit in the bank of checks subsequently dishonored by the drawee does not, in the absence of drawing upon the balance thus created, constitute evidence sufficient to support a conviction of obtaining money under false pretenses.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    JOSEPH PAUL GOOCH v. STATE OF MARYLAND
    [No. 281,
    September Term, 1976.]

      Decided December 30, 1976.

      The cause was argued before Lowe, Davidson and Liss, JJ.
    One Seltzer, with whom was Blair H. Smith on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Stephen Kupferberg, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, Joseph Paul Gooch, was tried and convicted before a jury in the Circuit Court for Prince George’s County of rape, perverted practice, and the use of a handgun in the commission of a crime of violence. Judge Robert B. Mathias, the presiding judge, imposed sentence as to each conviction, and it is from these judgments that this appeal was seasonably filed.

This sordid incident began, as so many others before it, in a combination bar-nightclub (in this case, Jimmy Combers in Takoma Park, Maryland). The prosecutrix, Cheryl Joanne Stewart, testified that she arrived unaccompanied at the premises at about 9:15 in the evening, seated herself at the bar, and for about forty-five minutes engaged in conversation with the bartender, whom she knew. About 10 p.m. the appellant introduced himself and joined her at the bar. They remained there for about two hours, during which time the accused bought her the traditional two beers. At about midnight, after she agreed to a date with the appellant to drive her to her car which was some distance away, and she got into his station wagon; but instead of taking her to her car, appellant pulled into the parking lot at the rear of the bar, stopped the car and kissed her, after which she asked to be taken to her car. Prosecutrix stated that appellant then took a black case out of his glove compartment from which he pulled a silver gun; that she started to scream and tried to get out of the car but the accused grabbed her and began choking her; that holding the gun on her, he demanded that she remove all her clothing which she did while he was slowly driving from the lot with one hand on the wheel and the other on her. He forced her to perform fellatio upon him while he was driving to a secluded residential area, the location where he first “stuck his gun in my vagina” and then raped her. In her testimony, prosecutrix related a number of rapes and perverted practices which were perpetrated upon her during the next several hours.

The appellant testified as a witness in his own behalf and in essence substantiated the prosecutrix’s version of the events of the evening up to the point of the sexual relations between them. He admitted the circumstances under which they met, their having left the premises together, and to having sexual relations with her several times that evening in his station wagon. He denied having performed cunnilingus on the prosecutrix but admitted that she engaged in fellatio upon him. He insisted, however, that the prosecutrix was a willing, if not eager, participant in these activities.

The appellant raises four grounds in this appeal, each of which he contends requires a reversal of the jury’s verdict and the judgments entered by the court. He contends initially that the trial court erred when it refused to grant an advisory instruction to the jury that evidence of the good character and reputation of the accused may be sufficient to create or raise such a reasonable doubt as to justify his acquittal, regardless of any other evidence presented.

Appellant offered as part of his defense the testimony of three character witnesses: His wife in response to a question concerning his reputation for peace and good order was permitted to testify, without objection, that he was an easy going guy. She was permitted to testify, again without objection, that he was a normal, healthy man, who never forced her to «have relations with him. Another witness testified to his good reputation for being a peaceful and orderly citizen; and when asked about the accused’s normalcy in sexual matters, he replied, “[I]f you want to know as far as him dating girls or going out with girls, he had a good reputation.” A third witness, when asked about appellant’s disposition to violence, said that the accused was “a pacifist, suave, a gentleman.” As to his reputation for sexual normalcy, she said that he was normal: “He flirted. Just American boy type.”

This evidence strikes us as being at best marginally relevant, but no objection was made to its admissibility, nor did the State on cross-examination seek to clarify the witnesses’ assessment of the sexual normalcy of the accused. It is clear that the accused had the right to have the jury consider this evidence of good character in conjunction with all the other testimony in the case in reaching its conclusion as to guilt or innocence.

When the testimony on both sides had been concluded, the trial judge proceeded to give his advisory instructions to the jury, after which counsel were requested to approach the bench. The record is silent as to the reason for the court’s action, but it is obvious that the court afforded counsel an opportunity to comply with Maryland Rule 756 f. which requires counsel to note any objection to the court’s charge as given and to request any additional instructions. The following colloquy then took place at the bench:

“MR. MIZEL (the defense counsel): Your Honor, I would have evidence of good character itself can raise, can create a reasonable doubt. Evidence of a good character itself can be enough to raise reasonable doubt.
MR. KUPFERBERG (the prosecuting attorney): I • would object to that.
THE COURT: Not at this stage of the proceedings. I conceivably would have given such an instruction if it would have been placed in context. But not after I have completed my instructions.
THE COURT: Do you have any exceptions?
MR. MIZEL: Only the refusal to give the instruction regarding the fact that character evidence alone can create a reasonable doubt.
THE COURT: Can do what?
MR. MIZEL: Can create a reasonable doubt.
THE COURT: That is an out-of-context
instruction and I will not give it standing alone at this stage of the proceedings. You have you [sic] exception to that. Because the Court has already given the instructions regarding credibility of witnesses and evaluation of the weight of the evidence. And I don’t know of any authority for character witnesses alone, standing alone, is sufficient grounds for reasonable doubt. You have your exception.”

Maryland Rule 756 a. states in part that the court may and at the request of any party shall give such advisory instructions to the jury as may correctly state the applicable law.

This Court in Mumford v. State, 19 Md. App. 640, 641, 313 A. 2d 563, 565 (1974), said:

“In Maryland, it is settled that a trial judge must, when timely requested to do so, give advisory instructions which are supported by the evidence. Byrd v. State, 16 Md. App. 391, 400, n. 3, 297 A. 2d 312 (1972); Gaskins v. State, 7 Md. App. 99, 105, 253 A. 2d 759 (1969), cert. denied, 404 U. S. 1040. Failure to give a properly requested instruction constitutes error.”

We had before us a similar case in Braxton v. State, 11 Md. App. 435, 274 A. 2d 647 (1971), cert. denied 262 745 (1971), where in reversing the trial court because of its refusal to grant an appropriate advisory instruction, we held that the accused, having introduced evidence of good character, was entitled to an instruction as to the weight and effect to be given to that evidence. We held that the jury should have been instructed that the character evidence should be taken into consideration by them in conjunction with all the other evidence in the case and, in arriving at their verdict of guilt or innocence, given such weight under all the facts and circumstances of the case — including the credibility, as determined by the jury, of the character witnesses themselves — as they may determine this evidence merits.

The trial court in the case before us gave as one of its reasons for refusing the requested character witness instruction the fact that it was not requested until after the court had completed its advisory instructions. This is not a justifiable reason. In a case exactly on point, Noel v. State, 202 Md. 247, 96 A. 2d 7 (1952), the trial court invited objections after its charge was delivered; and at that point — for the first time — a request was made for an instruction as to the weight and effect of character testimony. The trial judge declined, stating that the court would have instructed regarding character witnesses if it had been requested to do so, but that at that time, i.e., after advisory instructions had been given, it felt that it would lay undue stress on that testimony.

The Court of Appeals disagreed at p. 252,96 A. 2d at p. 10:

“We think the request was not too late. . . . ‘The rule necessarily contemplates that the trial judge, in an appropriate case, should have the power and the opportunity to amplify his charge, * * We think it would not have unduly stressed the testimony in question to have covered a point not covered in the previous instructions.” (citations omitted).

We hasten to add that we do not accept or reject as a correct statement of the law the instruction so vigorously argued by appellant in his brief. Our very careful reading of the record indicates that the precise instruction argued in the brief was never offered before the trial court. Without ruling on its validity, we express our doubts as to whether the excision of one sentence from a previously approved complete charge and its inclusion as a part of a general proposed instruction in a textbook is sufficient authority to require its acceptance as an appropriate advisory jury instruction. It is the duty of the trial court to make the initial decision as to the form and content of the advisory instruction and where the request for instruction is technically erroneous, to include a correct instruction in the court’s charge. Noel v. State, supra, at 252; Colbert v. United States, 146 F. 2d 10 (D.C. Cir. 1944).

The State urges that any error made by the court in refusing the instruction was cured by the advisory instructions the trial judge actually gave. We do not find this to be correct. While it is true that the court instructed the jury generally as to the weight and credibility to be given to the testimony of various witnesses, at no point did the court mention the effect and weight to be given to character testimony as such. Albeit it was rather inartfully done, we believe the appellant requested such an instruction and that the court should have granted it.

We believe that the refusal of the trial court to instruct the jury as to the effect of the character evidence was reversible error, and we shall, therefore, reverse the judgments entered in the counts charging rape and the use of a handgun in the commission of a crime. We believe the situation is different in the perverted practice charge and shall affirm the judgment entered in that count. The distinction to be made between the several counts may be found in the testimony of the accused: in the rape and handgun charges, he denied the commission of these crimes; in the perverted practice charge, he made what amounted to a judicial confession.

Section 554, of Article 27 of the Annotated Code of Maryland (1957, 1976 Repl. Vol.) makes it a violation of the criminal law of Maryland to place one’s sexual organ in the mouth of any other person. It is immaterial whether the act is a voluntary or involuntary one. See, Hughes v. State, 14 Md. App. 497, 287 A. 2d 299 (1972). The accused .in his own defense testified that the prosecutrix had taken his penis into her mouth. The statement of the accused voluntarily made in open court without any compulsion, threats, promises or other vitiating factor was a binding admission that he had violated the above criminal statute. See, Brumit v. Florida, 220 So. 2d 659 (Fla. App., 1969); State v. Snell, 177 Neb. 396, 128 N.W.2d 823 (1964); McCormick, Evidence, Sec. 160 (1972).

In view of the judicially admitted criminal act of perverted practice, the failure of the trial court to give the requested charge as to the character evidence is of no significance. We shall affirm the conviction on this charge.

As our reversal will require a retrial as to the counts charging rape and unlawful use of a handgun in the commission of a crime of violence, we shall consider briefly the other complaints made in this appeal:

Appellant contends that the trial court erred in not permitting cross-examination regarding the number of times the accused had an emission or ejaculation during the evening’s protracted sexual acrobatics. We disagree. The scope of cross-examination is a matter within the sound discretion of the trial judge. Wells v. State, 236 Md. 381, 203 A. 2d 912 (1964); Williams v. State, 15 Md. App. 320, 290 A. 2d 542 (1972).

Appellant relies on Davis v. Alaska, 415 U. S. 308, 94 S. Ct. 1105, 395 L.Ed.2d 347 (1974), which we find factually inapposite. In addition, our reading of the record convinces us that this unpleasant facet of the case was covered ad nauseam, during the cross-examination of the prosecutrix.

Appellant also contends that the trial court erred in its advisory instructions to the jury regarding the possible verdicts which could be returned in this case. No objection or exception to this portion of the charge was made at the time; therefore, the issue is not properly before this Court. Maryland Rule 1085.

Finally, the appellant urges that the trial court improperly permitted a witness, in rebuttal, to testify over objection to the carrying of a gun by the accused six years prior to the incident before the jury. We agree that the incident was too remote in time to be of any real evidentiary value. If the same evidence is offered upon retrial, the trial court will, of course, at that time determine its relevance and admissibility.

Judgments reversed and case remanded for new trial as to 1st count rape and 10th count use of handgun in commission of crime of violence.

Judgment affirmed as to 4th count perverted practice.

Costs to be paid by Prince George’s County.

      . Appellant urges that the trial court erred in refusing to give the instruction: “You are instructed that testimony showing the good character and reputation of the defendant may be sufficient to create such a reasonable doubt as to justify the acquittal of the defendant regardless of any other evidence which has been presented.”

      . Appellant cites as authority for his proposed jury instruction — D. Aaronson, Maryland Criminal Jury Instructions and Commentary, §5.07 (1975).

      . State v. Grady, 276 Md. 178, 345, A. 2d 436 (1975); Blizzard v. State, 30 Md. App. 156, 351 A. 2d 443 (1976), rev’d. on other grounds 278 Md. 556, A. 2d (1976).


author: Powers, J.,

text:
    ARTHUR JOSEPH MADORE, JR. v. BALTIMORE COUNTY, MARYLAND
    [No. 346,
    September Term, 1976.]

      Decided December 30, 1976.

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

      Charles E. Brooks, with whom were William N. White and Brooks & Turnbull on the brief, for appellant.

      Steven A. Charles, with whom were Jack L. Hardwick and Hardwick, Trípoda & Harris on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

This appeal calls for the first appellate application of subsection (b), added by Ch. 519, Laws of Maryland, 1972, to Code, Art. 57, § 18. After the 1972 enactment, the entire § 18 read:

“(a) No action shall be maintained and no claims shall be allowed against any municipal corporation or against any county or Baltimore City for unliquidated damages for any injury or damage to person or property unless within 180 days after the injury or damage was sustained, written notice setting forth the time, place or cause of the alleged damage, loss, injury or death shall be presented either in person or by registered mail by the claimant, his agent or attorney, or in the case of death, by his executor or administrator, to the county commissioners, county council, the corporate authorities of the municipal corporation or the city solicitor of Baltimore City, as the case may be. In Montgomery County and Howard County, written notice shall be presented to the county executive.
“(b) Notwithstanding the provisions of (a) above, the court may, upon motion and for good cause shown, entertain the suit even though the required notice was not given, unless provided further the defendant can affirmatively show that its defense has been prejudiced thereby.”

On 9 October 1975 Arthur Joseph Madore, Jr., appellant here, filed suit in the Circuit Court for Baltimore County, naming Baltimore County, Maryland, a municipal corporation, as the sole defendant. The declaration claimed damages for injuries sustained by the appellant in an automobile collision which happened on 16 October 1974, while the appellant was operating his vehicle on Jarrettsville Pike, a public road built and maintained by Baltimore County. It was alleged that the County was negligent in the design and maintenance of the highway, and that as a result of that negligence the appellant was caused to lose control of his vehicle and cross the center line of the highway and collide head-on with an oncoming vehicle.

It is not questioned that the claim made in the declaration was the kind of claim of which Art. 57, § 18 (a) required that written notice be presented to the appropriate municipal authorities. The declaration did not allege that notice had been given, nor did it refer to the statute at all. The notice is a condition precedent to the right to maintain the suit, and compliance with the notice statute should be alleged in the declaration as a substantive element of the cause of action. Neuenschwander v. Wash. San. Com., 187 Md. 67, 76, 48 A. 2d 593 (1946); Cotham and Maldonado v. Board, 260 Md. 556, 562-64, 273 A. 2d 115 (1971).

The County’s response to the declaration was a motion to dismiss, under Maryland Rule 323, on the dual grounds of governmental immunity and failure to comply with Art. 57, § 18 by giving notice of the claim within 180 days of the injury.

Appellant answered the motion by stating that he had good cause why the suit should be entertained; that he sustained severe injuries in the accident, was rendered unconscious and required extensive hospitalization, the last having terminated on 13 June 1975; that he consulted counsel within 30 days after his discharge; that he placed the County on notice on 8 August 1975; and that he was totally unaware of any possible liabilities and which parties might be responsible.

Both parties requested a hearing. Judge Walter R. Haile held the hearing on 11 March 1976. Rejecting the immunity defense in short order, Judge Haile wisely cut through form to reach substance, and considered the answer to the County’s motion to dismiss as if it were a motion by Madore, under Art. 57, § 18 (b), for the court to entertain the suit even though the required notice was not given.

To meet his obligation to show good cause, appellant relied entirely upon his own testimony. He said that he regained consciousness about a week after the accident, in St. Joseph’s Hospital. He remained there between five and six weeks until his discharge on 23 November in a wheelchair. His left leg and left arm were in casts. His right leg was also injured. At home, where he lived with his parents, he was confined to the wheelchair or bed until January. On 31 March 1975 he returned to the hospital for removal of wires and pins, and again returned home after six days. He began walking with crutches around the end of April. On 18 May 1975 he entered the hospital again, for reconstructive surgery, and was discharged on 28 June 1975.

Appellant explained that during his time at home he was limited to the confines of his home, except for a few times that he went out. When he did, he was wheeled to the car in his wheelchair, and lifted into the car. Asked if prior to seeing a lawyer in August 1975, he considered bringing an action or claim against anybody, Madore answered that in the beginning he thought he would be well on the road to recovery, and all he was worried about was getting his legs back. He said he had never been hospitalized before, and didn’t quite know how to handle the whole thing. His counsel did not press for a more responsive answer.

On cross examination Madore agreed that both in the hospital and at home he could use the telephone, although he did so rarely. About a week after the accident, he was aware of what was going on around him, but had thoughts about his health on his mind. He was asked if he could have gone to an attorney sooner if he had thought about it, and answered by explaining his hopes of being able to regain his walking, and to play sports. He said that he wasn’t worried much about an attorney. He then agreed that he could have contacted a lawyer earlier if it had occurred to him.

After hearing the evidence offered in support of the motion, and arguments of counsel, Judge Haile found that good cause for failure to give the required notice was not shown. He denied Madore’s motion to entertain the suit, and granted the county’s motion to dismiss the case.

Appellant urges this Court to hold that the lower court erred in construing good cause, and as to the sufficiency of the evidence to amount to good cause. We think the question is whether the lower court abused its discretion.

In enacting the escape clause, § 18 (b), the legislature made no attempt to define what constitutes good cause, but clearly committed that determination to the discretion of the court. This is generally so when it is the intent of the legislature to permit, but not to require, a court to excuse the failure of a party to perform an act, ordinarily procedural in nature, within a prescribed time period. If it is the wish of the legislature either to compel, or to prohibit, excuse of non-compliance, either extreme is easily expressed. When the legislature chooses not to apply either extreme, but prefers a flexible rule in between, it adopts good cause as the measure, and leaves it to the court to do the measuring.

There could be no clearer example of lodging discretion in the court. The very purpose of that discretion is to permit the court to accomplish substantial justice under varying circumstances, giving due regard to the reason for the requirement, and the rights of the parties.

In Merrimack Park v. County Board, 228 Md. 184, 179 A. 2d 345 (1962), the Court of Appeals considered what was then (and now) Maryland Rule B5 (formerly a part of Rule 1101) in the subtitle relating to appeal from administrative agencies. The appellant there had filed its order for appeal from the administrative agency in the circuit court, but had failed to file its petition in that court within the prescribed time. Rule B5 provided that upon such a failure, “the court shall dismiss the appeal unless cause to the contrary be shown.” The lower court dismissed Merrimack Park’s appeal. The Court of Appeals interpreted “cause” as used in the rule to be identical in meaning to “good cause”. Upon a showing that there was an informal understanding between counsel to waive the time requirement, the Court of Appeals said, at 188:

“The facts and circumstances disclosed in this record amount to cause within the meaning of the Rule cited, and the exercise of a reasonable discretion required a rejection of the motion to dismiss.”

The Court of Appeals applied the same rule in Toomey v. Gomeringer, 235 Md. 456, 201 A. 2d 842 (1964). It said, at 460:

“We accordingly hold that the time requirement of Rule B9 is not mandatory, and we think it was within Judge Turnbull’s discretion to refuse to strike out the answer of the protestants, and we find nothing to indicate any abuse of discretion on his part in so refusing.”

A clear and logical definition of good cause is found in Lee v. Houston Fire & Cas. Ins. Co., 530 S.W.2d 294 (Tex. 1975), quoting from the earlier Texas case of Hawkins v. Safety Casualty Co., 207 S.W.2d 370 (Tex. 1948). That Court said:

“The term ‘good cause’ for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.”

In the appellant’s brief here he calls our attention to one case, which he says gives a reasonably suitable definition of good cause. The case cited is Intermountain L. & B. Sup., Inc. v. Glens Falls Ins. Co., 424 P. 2d 884 (Nev. 1967). Before the Supreme Court of Nevada was a lower court’s refusal to set aside an entry of default “for good cause shown”. The motion to vacate was premised upon the mistake, inadvertence, surprise and excusable neglect of counsel. Referring to the affidavit supporting the motion the Court said:

“The showing does not necessarily establish mistake, surprise or inadvertence. It does suggest neglect. However, the lower court was not bound to declare such conduct excusable. [Citations omitted.] Though we prefer to have a case resolved upon its merits [Citations omitted.] such preference alone will not allow us to overrule an exercise of discretión below when the rules governing the vacation of a default have not been met. * * * In our judgment it was permissible for the lower court to rule that neither inadvertence, mistake, surprise nor excusable neglect was shown.”

The discretion with which all courts determine whether i good cause has or has not been shown is broad. It involves the exercise of one of the most important judicial functions. A ruling made in the exercise of that discretion is entitled to the utmost respect. It should not be overturned by an appellate court unless there is a clear showing that the discretion has been abused — that the result falls outside its broad limits.

We see nothing in the record in this case that shows an abuse of discretion.

Judgment affirmed.

Appellant to pay costs.


author: Thompson, J.,

text:
    JOHN ELMER HERSHBERGER, III et ux. v. JOHN ELMER HERSHBERGER et ux.
    [No. 356,
    September Term, 1976.]

      Decided December 30, 1976.

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

      Deborah B. Bacharach, with whom was Irvin J. Brodsky on the brief, for appellants.

      Sidney Kaplan and Arthur Guy Kaplan for appellees.
   Thompson, J.,

delivered the opinion of the Court.

John E. and Louise Hershberger filed a bill of complaint in the Circuit Court of Baltimore City to compel the return of $26,513.65 from their son and daughter-in-law, John E. and Linda Hershberger, III, appellants. From a decree issued by Judge Harry A. Cole, providing for the return of the entire sum without interest or set-offs, the second generation Hershbergers appeal, questioning whether the lower court has matched the appropriate remedy to its finding of fact.

In 1972, Mr. Hershberger, Sr. decided to move to Colorado. In an attempt to adequately provide for his wife, Louise, who was to remain in Maryland, negotiations were initiated with Mr. & Mrs. Hershberger, III. An oral agreement was reached whereby the Hershbergers, Sr. would sell their home on Manhattan Avenue, turn the entire proceeds over to the Hershbergers, III, who in return were to provide Louise with a room in their home, a car, food, and $10.00 or $15.00 a week spending money for the remainder of her life. The Manhattan Avenue property was sold and $26,513.65 was turned over to the son and daughter-in-law. In addition Mrs. Hershberger, III admitted that $2900.00 held in escrow from the sale of the Manhattan Avenue property was transferred to the younger Hershbergers. They used the money to put a $17,500.00 down payment on a new home in Carroll County. An additional $3,500.00 or $3,600.00 was expended for the installation of an extra bedroom and bathroom for Louise and a special kitchen floor. Mr. & Mrs. Hershberger, III and Mrs. Hershberger, Sr. moved into the new home and Mr. Hershberger, Sr. left for Colorado.

After moving into the new home, the younger Hershbergers put a down payment of $1,881.26 on a new car for Louise. They continued to make payments on the automobile so that at trial only $288.00 was still outstanding. They provided her with food, an allowance, and other necessities.

Unfortunately, friction arose between the two generations to such an extent that Louise was told to vacate the premises. The trial court found that through no fault of her own Louise was forced to leave home involuntarily. The appellants do not challenge the finding of the trial court that they breached the agreement, but contend that the amount of money expended on behalf of Louise should be set off from the $26,513.65.

There is no question that a court of equity has the power to require the return of the $26,513.65, even where the agreement is unenforceable at law, if it is deemed that this relief would be just. Scott v. White, 190 Md. 389, 58 A. 2d 490 (1948); Long v. Huseman, 186 Md. 495, 47 A. 2d 75 (1946); and Hartsock v. Strong, 21 Md. App. 110, 116-118, 318 A. 2d 237 (1974). It is also true that if the circumstances so dictate the appellants should be compensated for the care already given Mrs. Hershberger, Sr. See Brandenburg v. Harshman, 193 Md. 104, 112, 65 A. 2d 906 (1949).

In our view compensation is not necessarily required in the instant case. By the agreement the appellants were to provide food, a car, and an allowance. According to the appellants’ expense account this amounted to $5,184.72. For this, the appellants have received the use of $26,513.65 for two years interest free, and the $2,900.00 in the escrow account. It must also be remembered that it is the appellants who have breached the agreement a mere two years after it was made. When an agreement such as the one at bar is made, solely from a monetary standpoint, each party takes a risk. If Mrs..Hershberger, Sr. had died one day after the agreement was reached, the Hershbergers, III would have received $26,513.65 and given up almost nothing. On the other hand if Mrs. Hershberger, Sr. lives for thirty years the compensation she receives would be far in excess of the $26,513.65. If the Hershbergers, III are allowed to breach the agreement and deduct the expenditures, then they take no monetary risk at all, for as soon as the expenditures reach the initial sum Mrs. Hershberger, Sr. could be evicted from the home and receive no compensation.

Appellants also argue that the chancellor should have imposed a lien on their property and directed them to pay Mrs. Hershberger interest thereon for life as the court imposed in Long v. Huseman, supra. What was just in 1946 in a different case is not necessarily just today in the instant case. Interest at 6% on $26,513.65 would amount to less than $1,600.00 per annum; much less than the amount the appellants were spending while complying with their agreement. It must be remembered that Mrs. Hershberger, Sr. who has virtually no assets except for her automobile and the judgment in this case, is now in a position where she must search for a new place to live, after having been evicted from her former residence through no fault of her own. The trial court could have rightfully considered the problems she will face supporting herself, in addition to the monetary considerations, when balancing the scales of justice.

Decree affirmed.

Appellants to pay the costs.

      . They were also required to provide a room. While they spent approximately $3,000.00 building a bedroom and bathroom in the basement of their home, these expenses were an improvement on their home which increased the value. For the reason that these expenses are off-set we have left them out of the calculations.

      . While the appellants have listed additional expenses, they were not required by the agreement; thus they should not be considered.


author: Lowe, J.,

text:
    CAMILLA C. GREEN v. MILDRED H. GREEN
    [No. 437,
    September Term, 1976.]

      Decided December 30, 1976.

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

      David J. McDonnell for appellant.

      Bernard J. Medairy, Jr., for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Misfortune has extracted substantial recompense from Samuel A. Green, Jr., see Green v. State, 25 Md. App. 679; Green v. Lombard, 28 Md. App. 1; Att’y Grievance Comm’n v. Green, 278 Md. 412 (1976); but the anguish of his ordeals was not suffered by him alone. It is a natural phenomenon of our species that our mates and mothers share our burdens.

Sam Green’s mother and appellee here, Mildred H. Green, exhibited material manifestations of maternal succor by her willingness to lend him money on three occasions. The loans were evidenced by a confessed judgment note for $10,000, dated June 21,1965; one for $8,000, dated March 6, 1973; and one for $5,000, dated November 10, 1974. His wife and appellant here, Camilla C. Green, obligated herself jointly with her husband to pay these notes. The $10,000 note was a demand note, the other two were to mature three years from their dates.

But the misfortune which caused anguish to be suffered by others than its primary target created in time another form of mischief by “making foes where friends once were”. The record does not reveal the form of the misfortune which caused the subsequent disharmony, but on August 7, 1975, Mildred caused judgment to be entered by confession against both Sam and Camilla on all three notes, notwithstanding that the two more recently executed notes had not yet matured.

On September 11, 1975 Camilla Green filed motions to vacate the judgments pursuant to Md. Rule 645 c, but she missed that Rule’s 30 day deadline by one day and was thus deprived of its relatively light burden of showing a “meritorious defense” in order to vacate judgment. Instead, she was compelled to-rely upon Md. Rule 625, which provides a court with revisory power over its judgments on motions filed 30 days from entry only in case of “fraud, mistake or irregularity”. The issue was decided upon appellee’s motions to strike or not to receive appellant’s motions to vacate the judgments.

The state of fortune’s mishaps continued to envelop Camilla. Judge Albert P. Close, sitting as the Circuit Court for Baltimore County, decided that there was neither fraud, mistake nor irregularity in the obtention of the judgments and granted appellee’s “Motion to Strike or Motion Ne Recipiatur”. Perhaps Mrs. Green’s fortunes will change for the better hereafter, but not here on appeal, for our review finds that Judge Close was correct.

Camilla protests that she had asserted “fraud” as to the 1965 note for $10,000, when she filed an affidavit that the $10,000 was a gift. The demand note, she contended, was. “to evidence not an obligation, but the amount of the gift.” But as so clearly pointed out in the excellent opinion by Judge Close, the fraud appellant alleged is “intrinsic”, i.e., fraud in the inducement to sign the note, not “extrinsic” fraud, which is that. perpetrated in obtaining the judgment. While the fraud alleged may have provided a “meritorious defense” to an action on the note under Md. Rule 645 c, it is not such as would have shown:

“ ‘that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy.’ ” Schwartz v. Merchants Mort. Co., 272 Md. 305, 309.

Explaining that such is the nature of the fraud required to vacate a judgment after it has been enrolled 30 days, the Court of Appeals in Schwartz quoted United States v. Throckmorton, 98 U. S. 61, 95, for examples:

“ ‘Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.” 272 Md. at 309.

We agree with Judge Close that:

“ . . . the [appellant] cannot rightly allege the fraud in question prevented a fair submission of the controversy because the record shows she was properly served with notice of the judgment on August 11, 1975. [Appellant’s] failure to plead in a timely fashion prevented any submission of the controversy to the Court, and there is no allegation that the allegedly fraudulent conduct of the [appellee] in any way prevented timely pleading.”

It is apparent that appellant did not allege fraud in the obtention of the judgment by confession upon the $10,000 demand note.

Camilla further contends that the judgments on the second and third notes should be vacated because they were entered by mistake or irregularity. Arguing that no cause of action on these notes would arise until default, and that default could not arise until the notes had matured on March 7, 1976 and November 11, 1977, respectively, Camilla contends that the attorney who confessed the judgments exceeded his authority by doing so. The notes contained a warrant that the makers:

"... do hereby empower any attorney of any court of record ... to appear for us and .. . confess judgment against us as of any term, for the above sum with costs of suit and attorney’s commission of 4% for collection ....” (emphasis added).

There is no question that parties to a note may, by agreement, authorize the entry of a judgment by confession •before the maturity of the obligation. Hart v. Hart, 165 Md. 77; see Edelen v. First Nat. Bank, 139 Md. 422, 424. Because here there is no express agreement authorizing confession of judgment before maturity, as there was in Hart, supra, the issue is whether the warrant of authority implicitly authorizes confession before maturity.

We have interpretative guidance from the Court of Appeals in Stankovich v. Lehman, 230 Md. 426. The note in controversy there appears to have contained language nearly identical to the language at issue here. The Court described the note by saying that:

“It contained a warrant to confess judgment by empowering any attorney of any Court of Record to confess judgment against us as of any term for the above sum with Costs of suit and Attorney’s commission of 10% for collection.’” (emphasis added). Id. at 429.

Judgment was confessed there after the note matured, and appellant moved that the judgment be vacated. The success of the motion depended upon appellant’s ability to assert intrinsic fraud and failure of consideration. Whether these defenses could be asserted depended on whether the assignees of the note were holders in due course. That, in turn, depended on whether the note was negotiable.

The Court reasoned that the negotiable character of an instrument is not destroyed by a provision authorizing confession of judgment if the instrument is not paid when due. See Comm. L. Art., § 3-112 (1) (d). However, if the authorization permits confession of judgment before maturity, the note is not negotiable, because the power of the holder to mature the note at any time violates the requirement (now found in Md. Code, Comm. L. Art., § 3-104 (1) (c)) that the time of payment must be certain. Stankovich, supra, at 429-430. The Court then stated:

“It would seem logical that if the statute, as it does, preserves negotiability only if the confession of judgment is at or after maturity, the warrant to confess must expressly, or by necessary implication, restrict its exercise to that time if the note is to be negotiable, and that if the warrant is silent as to the time when it can be exercised, the reasonable implication must be that it can be done at any time.” (emphasis added). Id. at 430.

The Court then digressed to respond to an interpretative argument of what meaning should be given the phrase “as of any term”. It noted that the phrase can be interpreted in at least three ways. The Pennsylvania view relied upon by appellants Stankovich held that the phrase authorized a confession of judgment “at any term” without restriction as to time. The appellees Lehman argued that the word “term” connotes a single unit of time during which all pleadings and procedural steps causing judgment to be entered may be accomplished contemporaneously. Finally, the Court noted that in Illinois the phrase “as of any term” was held to limit the exercise of the power to times when the Court was in session and not in vacation, an interpretation relied on by appellant before us. But, concluding its learned discussion, the Court of Appeals decided that none of these views were necessary to decide the case it was considering and consequently declined to adopt one of them. Instead, the Court appeared to emphasize the restrictive nature of the language used in describing the amount authorized by the warranty for confession of judgment — “the above sum” — and, following its reasoning that the silence implies authority to confess judgment before maturity, it concluded that the note was not negotiable “[s]ince judgment could have been confessed before maturity”. The Court held that:

“The makers of the note did not limit the authority they gave to confess judgment against them to the maturity of the note, and it could have been done ‘for the above sum’ in proper éxercise of the power at any minute and as of any term after delivery of the note, whether that term occurred before or after maturity of the note.” Id. at 431-432.

Since that holding was necessary to its decision, we conclude that this statement is the Court of Appeals’ expression of law rather than its writer’s dicta.

The warrant of authority before us is all but identical to that in Stankovich, neither of which contained any limit upon when the authority to confess judgment may be exercised. We are bound by, the holding of Stankovich, whether interpreted as we have viewed it here, or as described in von Frank v. Hershey Nat’l Bank, 269 Md. 138, 145.

Judgments affirmed.

Costs to be paid by appellant.

      . An English proverb derived from a statement in Chaucer’s Monk’s Tale which reads:
      “For what man hath friendes through Fortune Mishap wol maken hem enemys I gesse;...”

      . Samuel A. Green, Jr. is not a party to this appeal.

      . It is not unreasonable for a lender to desire the security and advantages of obtaining a judgment before maturity of the note. For example, should the lender find, after making the loan, that the debtor has overextended himself, the lender may exercise his option to secure the loan by confessing judgment if he has been given the right to do so in the warrant of authority. Cf., Hart v. Hart, 165 Md. 77, 80-81. That rationale may not be available to effect a premature execution on such judgments, however.

      . The Court noted parenthetically that:
      “(The usual rule, at common law, would seem to have been that a judgment by confession, not being an adversary proceeding, could be entered in vacation as well as in term time, 1 Black on Judgments (2d Ed.). Sec. 52.)’’ Stankovich, supra, at 481.

      . But see von Prank v. Hershey Nat’l Bank, 269 Md. 138, 145, which stated the holding of Stankovich to be that “ ... the authorization to confess judgment ‘as of any term’ permitted entry of judgment at any time prior to the maturity of the note and therefore destroyed negotiability.” We do not find that to be the holding of Stankovich; however, if that is a correct interpretation of the Stankovich holding as opposed to our view, the result would be the same and it would also be dispositive of the case at bar.


author: Melvin, J.,

text:
    RICKY LYNN TROVINGER, PATRICIA KAY LANE and ALLAN TOMBAUGH HEALEY v. STATE OF MARYLAND
    [No. 62,
    September Term, 1976.]

      Decided January 3, 1977.

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

      Richard M. Karceski, with whom was Harold I. Glaser on the brief, for appellants.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and John S. Hollyday, State’s Attorney for Washington County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

Appellants were convicted of multiple violations of the Controlled Dangerous Substance Laws, Art. 27, Md. Code Ann. § 276 et seq. (1976), in a non-jury trial in the Circuit Court for Washington County (Rutledge, J.). Under separate indictments appellants Trovinger and Lane, and Trovinger and Healey, were convicted of conspiracy to distribute cocaine. Trovinger was also convicted of conspiracy to distribute marijuana. All three appellants were convicted of possession of cocaine with intent to distribute.

An informant’s tip, relayed by Pennsylvania State Police Officer Prough to the Maryland State Police, set the stage for the investigation which resulted in the appellants’ arrests. This information was presented in an affidavit pursuant to 18 U.S.C., § 2518 (1970) in support of an Ex Parte wiretap order. The affidavit alleged that the informant was negotiating, via telephone, to purchase 500 pounds of marijuana from Trovinger, and that Trovinger was in telephone contact with his supplier in Wisconsin. The affidavit further averred that the informant had been supplying information to the Pennsylvania State Police since 1973, and that this information had led to fifteen separate arrests for narcotics violations. The application for an Ex Parte order was granted on 17 October 1974, allowing interception of Trovinger’s telephone calls for a period of not more than thirty days. From this date until 10 November 1974, when appellants were arrested, twenty-eight drug-related telephone calls were intercepted. Of these calls, twenty were admitted as evidence at trial over appellant’s timely objections.

The content of these conversations, coupled with testimony from the Maryland State Police, presented a scenario of ongoing drug traffic. Information gleaned from these phone calls disclosed that on 10 November 1974 the scenario would reach its climax when Trovinger would return to Washington’s National Airport from a drug-buying trip, and would be met there by appellants Healey and Lane. On that date, after following their car from National Airport to the Hagerstown area, the Maryland State Police arrested the appellants. The curtain fell when a search of Trovinger revealed 177.008 grams of cocaine concealed on his person. Testimony established the resale value of this amount of cocaine to be in excess of $30,000. The instant indictments were issued on 26 November 1974.

On 13 August 1975 and again on 21 August 1975 appellant Trovinger voluntarily appeared, without counsel, at the Baltimore office of the Federal Drug Enforcement Administration. On 21 August 1975 he wrote out a 26-page statement relating his drug enterprise experiences for a period of several years. This statement contained no information concerning the case at bar. The statement was admitted only against Trovinger at his trial.

At trial, the appellants stipulated that the cocaine had been seized from Trovinger’s person, that the car in which he was then a passenger was owned and operated by appellant Lane, and that appellant Healey was also present in the car at the time of the arrest. A motion to suppress the intercepted telephone conversations was denied. After a two-day trial, at which the three appellants were jointly represented by two attorneys, the appellants were convicted. This appeal followed.

The questions presented for our consideration may be summarized as follows:

(1) Was the Ex Parte order for the wiretap improperly granted?
(2) Was the statement of appellant Trovinger improperly admitted against him?
(3) Was there a conflict of interest between counsel for the appellants?
(4) Was the evidence insufficient to support the convictions?

Because we answer each question in the negative we shall affirm the convictions.

The Wiretap

The privacy of telephone communication is guaranteed by the Fourth Amendment of the United States Constitution. Before this privacy may be invaded by the police, “probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense . . .” (including narcotic offenses) must be demonstrated. Other statutory requirements must also be met. See 18 U.S.C., § 2518 (1970). Appellant Trovinger claims that his motion to suppress the intercepted telephone conversations was improperly denied because the underlying Ex Parte Order does not meet statutory standards. He challenges the legal sufficiency of the required affidavit for failure to adequately demonstrate the informant’s reliability as well as the necessity for a wiretap. After independently reviewing the record and the affidavit we find these contentions to be without merit.

Appellant concedes the credibility of Cpl. Prough of the Pennsylvania State Police, but maintains that his informant’s basis of knowledge was not proven. We disagree. The affidavit adequately demonstrates the basis for the informant’s knowledge and amply supports his conclusions of the presence of criminal activity. It is evident within the four corners of the affidavit that the informant was dealing personally with Trovinger and was negotiating via telephone to purchase 500 lbs. of marijuana from him. The personal knowledge of the informant presented in the affidavit provides a sufficient basis for probable cause. See Spinelli v. U. S., 393 U. S. 410, 89 S. Ct. 584 (1969); Bolesta v. State, 9 Md. App. 408, 264 A. 2d 878 (1970). Compare, Collins v. State, 17 Md. App. 376, 302 A. 2d 693 (1972).

We hold further that the need for a wiretap was adequately demonstrated. The affidavit describes in detail the means of surveillance attempted to be used, and why these means had been, or would be, unsuccessful. The State need not exhaust all conceivable investigative possibilities before seeking a wiretap. In U.S. v. Lanza, 356 F. Supp. 27 (M.D. Fla. 1973), the granting of an Ex Parte order was challenged for failure to exhaust other investigative possibilities. In rejecting this argument, the court stated:

“The purpose of the exhaustion requirements is not to foreclose the use of electronic surveillance until the State has exhausted every possible means of obtaining a viable case against the subjects, but merely to inform the authorizing magistrate or judge of the nature and progress of the investigation and the difficulties inherent in the use of normal techniques.” 356 F. Supp. at 30.

See also U.S. v. Leta, 332 F. Supp. 1357 (M.D. Pa. 1971). In all other respects the matter contained in the affidavit conforms to the standards set forth in Haina v. State, 30 Md. App. 295, 352 A. 2d 874 (1976).

Appellant Trovinger further contends that the affidavit was fatally defective for failure to aver that the communication would be of a continuing nature. Although this issue is not properly raised on appeal, Md. Rule 1085, after examination of the affidavit, we find the argument without merit.

Trovinger’s Statement

On 13 and 21 August 1975 appellant Trovinger visited the Baltimore office of the Drug Enforcement Administration. At that time the appellant made a statement which detailed his traffic in narcotics, but omitted any reference to the activities for which he was then under indictment. His attorney was not present. This statement was admitted only against appellant Trovinger at trial. He now attacks the admission of this statement on the sole ground that his Sixth Amendment right to counsel was violated. He does not question the relevancy or materiality of the statements.

Appellant initially relies upon Blizzard v. State, 30 Md. App. 156, 351 A. 2d 443 (1976) (Blizzard I.) Blizzard I adopted a liberal exclusionary rule for uncounseled, post-indictment statements. The thrust of this rule is that all uncounseled statements, elicited by the police after indictment, must be excluded from evidence. See, e.g., United States v. Thomas, 474 F. 2d 110 (10th Cir.), cert. den. 412 U. S. 932 (1973).

After the argument in the instant case, Blizzard was reversed by the Court of Appeals. State v. Blizzard, 278 Md. 556 (1976), (Blizzard II). In Blizzard II the Court, through Judge Smith, rejected the liberal exclusionary rule for uncounseled, post-indictment statements. The Court stated that, “... such a sweeping rule [requiring exclusion of all uncounseled, post-indictment statements] is hazardous in that it fails to take account of the special facts that arise in each new case”. Blizzard II, at 22, citing Commonwealth v. Frongillo, 359 Mass. 132, 136, 268 N.E.2d 341 (1971). Thus it is clear that a challenged, uncounseled post-indictment statement is not automatically constitutionally vitiated, but rather must be evaluated in the light of its own peculiar facts.

Based upon our independent analysis of the present case, we hold Trovinger’s statement to be without constitutional taint. Preliminarily, we point out that insofar as the instant charges are concerned, the statement is not inculpatory. It contains a detailed description of his dealings in drugs for many years prior to his arrest, but omits any reference to the offense for which he was then under indictment. Second, it is patent that the statement was not induced, elicited, or solicited, by the prosecution. To the contrary, it appears that Trovinger himself sought out the federal authorities and that his statement was palpably voluntary.

Trovinger first made contact with the Drug Enforcement Administration at their office in Philadelphia. He was there told to contact the Baltimore office. Trovinger visited the Baltimore office on 13 August 1975. It was not until his second visit, one week later, on 21 August 1975, that Trovinger tendered his 26 page statement. There is some confusion on the point, but it appears that Trovinger was also advised of his right to counsel. Based upon these facts, we do not perceive that Trovinger’s right to counsel has been violated. Not only was his statement not inculpatory for the charges for which he was tried, but it also appears that the statement was voluntarily made. See United States v. DeLoy, 421 F. 2d 900 (5th Cir. 1970), Blizzard II, supra.

Appellants Healey and Lane also cite as error the admission of Trovinger’s statement. It is their claim that the improper admission of the statement prejudiced their defense. Assuming arguendo that the statement was improperly admitted against Trovinger, the contentions of Healey and Lane must nevertheless fail. We have long followed the common law rule that in a non-jury trial the judge may both rule on the admissibility of evidence and act as trier of fact with no prejudice to the respective parties, State v. Hutchinson, 260 Md. 227, 271 A. 2d 641 (1970); In Re Appeal No. 977, 22 Md. App. 511, 323 A. 2d 663 (1974). Moreover, because the statement does not implicate appellants Lane and Healey, and the statement was offered only against appellant Trovinger, the exclusionary rule of Bruton v. United States, 391 U. S. 123, 85 S. Ct. 1620 (1968), is inapplicable.

Conflict of Interest

Our careful review of the record leads us to conclude that there was no fatally prejudicial conflict of interest present in this case. The State’s evidence was subjected, as it was presented, to strict scrutiny by appellants’ attorneys. The intercepted telephone calls, which comprised the State’s case in chief, were all objected to and ultimately admitted only against respective parties identified in each phone call. None of the appellants presented a defense. There is no showing of a possible conflict among counsel and defendants as to theories or tactics of defense. We hold, therefore, that no conflict of interest resulted from the three appellants’ representation by the same two attorneys.

Sufficiency of the Evidence

Appellants claim that there was insufficient evidence to support their respective conspiracy convictions as well as Lane and Healey’s convictions of possession of cocaine with intent to distribute. After carefully reviewing the record, we find that these contentions are without merit. It was proper for the court to infer from the uncontradicted evidence adduced at trial that the alleged conspiracies were formed and that Lane and Healey did have possession of cocaine. Seidman v. State, 230 Md. 305, 187 A. 2d 109, cert. den. 374 U. S. 807 (1963); Greenwald v. State, 221 Md. 245, 157 A. 2d 119, App. dismissed, 363 U. S. 721 (1960).

Appellants Lane and Healey initially contend that their voices were not adequately identified from the intercepted telephone calls. Absent this identification, they argued, it could not be proven that they conspired together and therefore the conspiracy convictions must fail.

Whether the voices of appellants Lane and Healey were properly identified was a question of fact for the court to determine. Judge Rutledge had the opportunity to listen to the taped conversations and to observe and judge the demeanor of the State’s witnesses who identified the respective voices. The appellants neither testified nor presented any evidence in their behalf. This, of course, is their constitutional right, but the voice identifications are nonetheless uncontroverted. Upon our review of the record we find ample evidence from which the judge could find that the taped voices were those of the appellants.

Appellants Lane and Healey further claim that their possession of the cocaine was not adequately proven. We disagree. Our cases do not require actual possession of contraband; constructive possession will support a conviction. At the time of their arrest Lane and Healey were returning from the airport where they had traveled to meet Trovinger, knowing fully the illegal purpose of his travel. Based upon these facts, it was proper for the court to infer Lane and Healey were participating in “the mutual use and enjoyment of the contraband”. Folk v. State, 11 Md. App. 508, 518, 275 A. 2d 184 (1971); Anderson v. State, 9 Md. App. 639, 267 A. 2d 302 (1970).

Because we are unable to find that the trial judge was clearly erroneous in his conclusions of fact, or that he erred in applying the law, we shall affirm the judgments. Williams v. State, 5 Md. App. 450, 247 A. 2d 731 (1968); Maryland Rule 1086.

Judgments affirmed.

Costs to be paid by appellants.

      . It was stipulated at trial that Trovinger had possession of the contraband.


author: Gilbert, C. J.,

text:
    ROY EDWIN CALHOUN v. STATE OF MARYLAND
    [No. 489,
    September Term, 1976.]

      Decided January 3, 1977.

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

      Gerald A. Kroop for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Sunsher, State’s Attorney for Baltimore City, and Floyd Pond, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The “tacking” of a prior owner’s adverse possession is permissible to show that the possession has continued for twenty years and that the possession has been open, notorious, hostile and continuous. Gore v. Hall, 206 Md. 485, 112 A. 2d 675 (1955); Zehner v. Fink, 19 Md. App. 338, 311 A. 2d 477 (1973).

A different type of “tacking” is allowed so as to demonstrate probable cause on the basis of a prior warrant when an investigation is a continuing one. Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975); Carter v. State, 274 Md. 411, 337 A. 2d 415 (1975); Brooks v. State, 13 Md. App. 151, 282 A. 2d 516 (1971), cert. denied, 264 Md. 746 (1972).

The question presented by this case is, may “tacking” be employed by the police, so as to cure a defective present affidavit in support of an application for a court order authorizing an electronic listening device, by incorporating by reference into the present affidavit a prior valid affidavit used in another application.

Acting upon information gathered as the result of an order of the Criminal Court of Baltimore permitting an electronic eavesdrop on telephone number (301) 444-4219, officers of the Baltimore City Police obtained a search and seizure warrant for 300 East 30th Street in Baltimore City. Execution of the search and seizure warrant revealed that a gambling operation was being conducted there. A large amount of bookmaking slips and other related gambling paraphernalia was impounded. Roy Edwin Calhoun was charged with nine violations of Md. Ann. Code art. 27 § 240. Calhoun was tried in the Criminal Court on seven separate “statements of charges,” convicted on each, and fined a total of three thousand dollars ($3,000 ).

Prior to the trial on the merits, Calhoun moved to suppress the fruits of the search on the ground that they were acquired through an illegal wiretap order in that the order did not comply with “the Fourth Amendment of the Constitution of the United States, Sections 2510 through 2520 of Title 18 of the United States Code, Section 10-403 of the Courts and Judicial Proceedings Article, and Article 27, Section 125A of the Annotated Code of Maryland.”

Calhoun bottomed his argument upon facts stipulated to the trial judge. In essence those facts were:

On May 27, 1975, an ex parte order authorizing the attachment of a decoder to telephone numbers 685-9615 and 727-9656, located at 410 and 412 East Baltimore Street, respectively, was issued by the Criminal Court of Baltimore. The order was based on the petition of William A. Swisher, Esq., the State’s Attorney for Baltimore City, and the affidavit of Detective Walter Harmon of the Baltimore City Police Department. The affidavit recited that apparent gambling activity was then occurring at 410 and 412 East Baltimore Street; that there was frequent use of the telephones by known gamblers in telephoning bets to an unknown location. The affidavit averred that there existed an inability on the part of the police to discover by ordinary investigative techniques “. . . just where it is that these illegal bookmaking wagers are being phoned into.” The affidavit further declared that, “. . . these activities will continue uninterrupted unless conventional means of investigation are recognized to be ineffective and extraordinary investigative measures are taken against this wide open and flagrant criminal display.”

Subsequently, on June 30, 1975, the court, upon petition, signed an ex parte order permitting a wiretap on telephone number 727-9656. The affidavit in support of the petition was made by three Baltimore City Police Department detectives, including Detective Harmon. While the affidavit does not explicitly state that normal police investigation will not succeed, it does implicitly allege that fact. The affiants made clear that search and seizure warrants executed in premises housing telephone numbers called from 727-9656 would produce “unknown results,” and “alert the bookmakers.” The affiants informed the reader that at least one of the police officers had personally observed the structures housing the telephones frequently dialed from 727-9656 and did not see any activity. We make it perspicuous that the telephone bearing the number 444-4219 and the structure housing it were not mentioned in that affidavit. The wiretap order was self-terminating on July 22, 1975.

Five days before the termination date of the June 30, 1975, order, the State’s Attorney petitioned for an ex parte order for a wiretap to be placed on telephone number 444-4219. That petition was supported by the affidavit of Detective Harmon. The affidavit read, in pertinent part, that “[ajttached to this AFFIDAVIT, incorporated by reference herein, with the same force and effect as if reiterated verbatim, are exact duplicates of the following materialsj.]” There then appeared a summary of the order, petition, and affidavit for the installation of the decoder and of the wiretap on 727-9656. Nowhere in the affidavit was it stated that any police officer observed 6995 McClean Boulevard, in Baltimore City, the site where a telephone bearing number 444-4219 was housed, nor was it alleged that normal investigative measures would not suffice. The affidavit narrated that telephone number 444-4219 was dialed from telephone number 727-9656 on July 4, 5, 7, and 8. “A white male answered” the phone, and a total of four bets was placed with that male.

The specific question posed to us is whether the affidavit upon which the application for a wiretap order for telephone number 444-4219 was structured was defective for want of compliance with 18 U.S.C. §§ 2510-2520. notwithstanding that prior valid affidavits and orders had been incorporated therein by reference. Put another way, will an affidavit pass muster by piggy-backing a valid affidavit that was used in support of an application to tap another phone at a different location?

In deciding the issue, we bear in mind the words of Judge Digges in State v. Siegel, 266 Md. 256, 274, 292 A. 2d 86, 95 (1972), aff'g 13 Md. App. 444, 285 A. 2d 671 (1971), that, “[t]he statute [18 U.S.C. §§ 2510 — 2520] sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” In our discussion, we shall utilize those pregnant words as our guiding light.

The legislative history of the Omnibus Crime Control and Safe Streets Act of 1968 sets out that what is now codified as 18 U.S.C. §§ 2510-2520 was enacted because:

“The tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance. Commercial and employer-labor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man’s personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor’s advantage.” [1968] U.S. Code Cong. & Ad. News 2154.

The history makes it unmistakable that law enforcement officers “. . . engaged in the investigation or prevention of specified types of serious crimes,” including the transmission of wagering data, may use electronic surveillance only after obtaining a court order based on probable cause. Id. at 2153.

18 U.S.C. § 2518 (1) commands that “[e]ach application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation . . . and shall state the applicant’s authority to make . . . application.” The application shall contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous[.]”

By Md. Cts. and Jud. Proc. Code Ann. § 10-403 (a), the General Assembly has mandated that an application for

“[a]n ex parte order for the interception of telephonic and telegraphic communications may be issued by a judge . . . upon the verified application of the Attorney General or a state’s attorney setting forth fully the facts and circumstances upon which the application is based and stating that:
(1) There are reasonable grounds to believe that a crime has been committed or is about to be committed.
(2) There are reasonable grounds to believe that evidence will be obtained essential to the solution of a crime, or which may enable the prevention of a crime.
(3) There are no other means readily available for obtaining the information.”

We interpreted, in Washburn v. State, 19 Md. App. 187, 196, 310 A. 2d 176, 182 (1973), cert. denied April 1976, the legislative will of the Congress and the General Assembly to be that:

“[Electronic surveillance is to be employed, assuming probable cause and compliance with the other provisions of the Federal and State laws, only when one of three things occur: (1) there are no other means available for obtaining the information because normal investigative procedures have been proven unsuccessful; (2) normal investigative procedures appear unlikely to succeed if utilized, and (3) the implementation of normal investigative procedures will be too dangerous to be operative. In the case before us, the affiants believed that it was unlikely that other investigative procedures would ‘succeed in obtaining the identity of all the co-conspirators and in obtaining evidence sufficient to convict.’ ”

In asserting compliance with the legislative mandate, the State, in the case at bar, points to another affidavit of Detective Harmon, dated July 17, 1975, for an extension of the June 30, 1975, order with respect to telephone number 727-9656, wherein he said:

“It has been the experience of your Affiant, when working under the authorization of court ordered wiretaps in the past, that illegal gambling operations will often move their headquarters for receiving bets for a variety of reasons, all of them good. Your Affiant has worked on a court ordered wiretap where an illegal gambling operation moved its station due to being raided by the Baltimore City Police Department. Your Affiant has worked on a court ordered electronic surveillance of illegal gambling activities where two large bookmaking stations both moved to new locations within two weeks of each other for reasons unknown to your Affiant. In the matter of these latter mentioned bookmaking stations, these moves took place sometime between June 11, 1975 and July 3, 1975 and were in the matter of, in connection with and a part of this present investigation by your Affiant so it is then apparent that the aforementioned gambling station at (301) 444-4219 is subject to a move at any time.
A gambling station may move for the following reasons: (1) They were raided by the Police. (2) They have decided they have been in one place too long and too many people have knowledge of it. (3) They may observe too many police in the area and become suspicious. (4) They may observe unknown people in the area and become suspicious. (5) They will move to keep fringe members of the organization who may be informants from keeping close track of the integral workings of the operation. (6) They may move when writers (bet takers) are arrested by police for fear that these writers may accidently or intentionally tip off the police as to the location of the station. There are numerous other reasons, some less important and some unknown to your Affiant.”

The State then argues, “this practice of incorporation by reference is logical in a continuing investigation and has been recognized as a valid practice under the requirement that supporting documents be read as a whole,” citing United States v. Tortorello, 480 F. 2d 764, 778-81 (2d Cir.), cert. denied, 414 U. S. 866, 94 S. Ct. 63, 38 L.Ed.2d 86 (1973). Tortorello, however, does not address itself to the issue now before us. While it sanctions the use of prior validly intercepted conversations as part of the total probable cause, it neither approves nor condemns the practice that was followed in the instant case. We agree that supporting documents, along with the affidavit and application, should be read and considered as a whole by a judge when he is requested to issue a wiretap or similar order. Reading “as a whole,” however, will not cure a defective supportive affidavit. That the initial affidavit is legally sound does not mean that all subsequent affidavits, even in a continuing investigation, are also sufficient. Each affidavit must stand on its own foundation. If a foundation is constructed in a faulty manner, it makes no difference that the builder had previously erected foundations which were free of fault.

Moreover, we observe that the quoted portions of the affidavit to which the State directs our attention were not included within the recitation of background matter to which the State alluded in its petition for an order to tap telephone number 444-4219 but were contained in a separate unincorporated affidavit.

The State suggests that the “practical and common sense approach” of In re Dunn, 507 F. 2d 195 (1st Cir. 1974) and its siblings, United States v. Armocida, 515 F. 2d 29 (3d Cir. 1975); United States v. Steinberg, 525 F. 2d 1126 (2d Cir. 1975) be employed in evaluating the sufficiency of the affidavit that supports the application for the electronic eavesdrop order. The seeds of the “practical and common sense approach” were sown in the legislative history of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. There it said:

“Subparagraph (c) requires a full and complete statement as to whether or not normal investigative procedures have been tried and failed or why these are unlikely to succeed if tried, or to be too dangerous. . . . The judgment would involve a consideration of all the facts and circumstances. Normal investigative procedure would include, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspirational groups by undercover agents or informants. Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. What the provision envisions is that the showing be tested in a practical and common sense fashion.” [1968] U.S. Code Cong. & Admin. News at 2190 (emphasis added) (citations omitted).

Dunn, supra, may be described as sketchy at best. It relates the contents of an affidavit which indicated that the “target” of the investigation was suspicious of strangers, that physical surveillance would be difficult because of its possible detection and was also potentially dangerous to the undercover agent, that the nature of loan sharking deterred conventional methods of investigation, and then finds that there was sufficient compliance with 2518 (1) (c) when viewed in a “practical and common sense fashion.” Dunn is readily distinguishable from the case before us because such statements were not made in the case at bar.

Armocida, supra, is inapposite. There, the court found within the affidavit a “factual predicate” which included: (1) a history of physical surveillance; (2) utilization of informants; (3) undercover agents; and, (4) other wiretap interceptions. All of these techniques apparently were tried and failed. Further, the affidavit indicated (1) that the informant would not testify; (2) surveillance was too easily noticeable and could jeopardize the investigation; and (3) a search warrant was unlikely to reveal the identities of those in the conspiracy or the source of heroin. 515 F. 2d at 38.

Steinberg, supra, also provides no support for the State. In that case the affidavit contained the following: “I allege the facts contained in the numbered paragraphs to show that: . . .(c) Normal investigative procedures reasonably appear unlikely to succeed, or are too dangerous to be used. . . .” 525 F. 2d at 1130 n. 3. The application also described the progress of the agent’s investigation, previous deliveries of drugs, representations of the suspect, the lack of undercover access to the suspect, the impossibility of developing such access, and the agent’s experience and general knowledge.

The Steinberg court held that the affidavit was in substantial compliance with 18 U.S.C. § 2518 (1) (c) and (3) (c).

We note that the affidavit in Steinberg did allude to the unlikely success of normal investigative procedures and the personal peril of that type of investigation, while in the case sub judice, the affidavit upon which the tap on telephone number 444-4219 was ordered makes no reference at all to normal investigative procedures.

While we subscribe to the common sense, pragmatic approach of Dunn, Armocida, and Steinberg, we fail to see how that approach will salvage the application in the present matter. In each of those cases, but not here, the affidavit in support of the application made reference as to why normal investigative procedures would not succeed. What the State, in the instant case, did was to make an application, supported by a valid affidavit, and obtain an order thereon for a location on East Baltimore Street. Thereafter, it sought a new order for a location on McClean Boulevard, and in the affidavit in support thereof, attempted to fuse the allegation of the first affidavit, that normal investigative procedures would not be successful, by incorporating the prior affidavit by reference. If such a procedure were allowed, it is possible that the police could obtain a valid order based on a legally sufficient affidavit and then in a whole series of new application incorporate the prior affidavit by reference so as to comply superficially with 18 U.S.C. § 2518.

We believe the words of the Supreme Court in United States v. Giordano, supra, to be particularly appropriate. The Court said: “Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. ” 416 U. S. at 515, 94 S. Ct. at 1826-27, 40 L.Ed.2d at 353 (emphasis supplied).

Courts are not free to infer from the mere presentation of an application or petition, supported by an affidavit, that normal investigative procedure will not work. There must be specific compliance with 18 U.S.C. § 2518. The affidavit must demonstrate to the issuing judge that normal investigative measures have been tried and failed, or they are unlikely to be successful under the circumstances, or that their use is too perilous to the investigators. That a prior affidavit for another time and another place so demonstrates, even when incorporated by reference, is not compliance with the strict requirements of the Act.

We end where we started, with the cogent words of the Court of Appeals in Siegel, supra, that, “The statute sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from its prescribed path.” 266 Md. at 274, 292 A. 2d at 95. (Emphasis supplied.)

The order in this case did permit a deviation from the “prescribed path” of the statute. Hence, it was defective, and the evidence seized as a result of the order should have been suppressed.

We quote with slight editing the foreword of the book, The Right of the People to be Secure, An Examination of the Fourth Amendment by Judge Moylan of this Court, published by the National College of District Attorneys (1976) that:

“Frequently a police officer, in a reflective mood, will say, ‘Judge, you know this . . . [wiretap law] makes my job a lot tougher and more difficult.’ What does one respond, except to say:
‘Officer, that’s precisely what . . . [it] is for. Even in our service, you are not permitted the efficiency permitted a counterpart in a Gestapo or an NKVD. From day to day, that is your burden; but from decade to decade and century to century, that is your glory. When you look at your wife and children at home at night, you yourself would not have it otherwise. Yes, Officer, it makes your job a lot more difficult. It’s supposed to.’ ”

Judgments reversed.

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

      . See Md. Rule 702 a. and Maryland District Rule 702 a.

      . The State entered a nolle pros as to the remaining two statements of charges.

      . The petition of the State's Attorney defines a decoder as “. . . a device which converts the sounds made by the depression of a touchtone button on a touchtone telephone or the turning of a dial on a rotary telephone into a numerical readout of the telephone number dialed.”

      . The provisions of 18 U.S.C. § 2510-2520 are controlling in this State. Section 2515 makes that manifest. It provides:
      “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”

        See also State v. Siegel, 13 Md. App. at 460, 285 A. 2d at 680. “[A]ll that is required for a state validly to permit interception of wire and oral communications is to have in effect a statute authorizing its principal prosecuting attorney or the principal prosecuting attorney of any of its subdivisions to apply to one of its judges of competent jurisdiction for an order of interception.” Maryland has two such statutes, Md. Ann. Code art. 27, §§ 125 A-D and Md. Cts. & Jud. Proc. Code Ann. §§ 10-401 to 10-408 inclusive.

      . The specified serious crimes are enumerated in 18 U.S.C. § 2516 (1) a-g.

      . If the court to whom application is made determines that “normal investigative procedures” have not been considered, it should not issue the order. United States v. Giordano, 416 U. S. 505, 515-16, 94 S. Ct. 1820, 1826-27, 40 L.Ed.2d 341, 353 (1974).

      . For other cases that adhere to the view that “substantial compliance” satisfies the § 2518 (1) (c) and (3) (c) requirements because of the “practical and common sense” philosophy of the Act, see: United States v. Anderson, 20 Crim. L. Rep. (BNA) 2103 (7th Cir. 9/30/76); United States v. Matya, 20 Crim. L. Rep. (BNA) 2074 (8th Cir. 9/9/76); United States v. Robertson, 504 F. 2d 289 (5th Cir. 1974); United States v. James, 494 F. 2d 1007 (D.C. Cir. 1974) ; United States v. Bobo, 477 F. 2d 974 (4th Cir. 1973); United States v. Fina, 405 F. Supp. 267 (E.D. Pa. 1975); State v. Rowman, 352 A. 2d 737 (N.H. 1976). Contra: United States v. Kalustian, 529 F. 2d 585 (9th Cir. 1975) .