author: Morton, J.,

text:
    STATE OF MARYLAND, DEPARTMENT OF GENERAL SERVICES v. CHERRY HILL SAND AND GRAVEL COMPANY, INC.
    [No. 593,
    September Term, 1981.J

      Decided April 7, 1982.

      The cause was argued before Morton, Mason and  Couch JJ.

      Varda N. Fink, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Thomas A. Baker, Assistant Attorney General, on the brief, for appellant.

      Douglas G. Worrall, with whom were Smith, Somerville & Case on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The State of Maryland, through its Department of General Services, appellant and cross-appellee herein, solicited bids from construction contractors to construct a fish hatchery on the grounds of Cedarville State Park in Anne Arundel County. The plans and specifications as prepared by Frederick Ward Associates, Inc., required the clearing, excavation, and grading of a large site and the lining of 27 excavations which would become ponds.

Several interested contractors, including Cherry Hill Sand and Gravel Company, Inc., appellee and cross-appellant herein, before putting in their bids, inquired of David Hall, an employee of Frederick Ward Associates, Inc., whether there was on-site "impervious fill” sufficient to line the 27 excavations as required. Mr. Openshaw, the president of Cherry Hill, and at least one other inquiring contractor were advised that there was. Cherry Hill prepared its bid, a component of which was $194,920, a $4 per cubic yard charge for placing, compacting, and shaping an estimated 48,730 cubic yards of borrow, or "impervious fill.” Cherry Hill, acting on the assumption that all the impervious fill needed was on the site, did not include in its estimate a cost for hauling the fill or other costs associated with hauling fill from an off-site area.

Cherry Hill was awarded the contract. The written contract entered into between the parties provided, at Paragraph 2B-9a, that the contractor was to supply the fill required where cuts did not provide sufficient materials. No representation was made within the written contract that sufficient quantities were available on site.

During construction it became apparent that there was very little borrow on-site which met the requirements of impervious fill, and Cherry Hill was forced to retrieve 45,997 of the 49,941 cubic yards needed from areas 800 to 1500 feet "off-site” — away from the ponds — thus incurring additional costs.

Cherry Hill filed a declaration in the Circuit Court for Anne Arundel County (Williams, J.) against the State of Maryland, Department of General Services, first alleging that it incurred the additional expense of hauling the fill and was owed $321,979 under the contract, based on a figure of $7 per cubic yard for 45,997 cubic yards of borrow.

The trial judge in an oral opinion issued at the end of the trial concluded that the oral representation made to Cherry Hill two days before bids were accepted was a part of the written contract which followed. He awarded as damages for the State’s breach $1.96 per cubic yard for the hauling of 46,041 cubic yards and the cost of opening and closing two "pits,” in addition to $1,665.84 to repair a cable in one of the pits that Cherry Hill was forced to use.

The State herein appeals the final judgment entered in favor of Cherry Hill in the amount of $91,906.20, arguing that the court erred in ruling that the contract between the parties contained an oral representation made by the State engineer prior to the time that the parties entered into a written contract. It argues that under the parol evidence rule, the prior oral assertion made by Hall that there was sufficient on-site impervious fill is not admissible to vary, alter, or contradict the complete and unambiguous written contract later entered into by the parties. Indeed, argues the State, such parol evidence would not be admissible even to explain the meaning or determine the construction of a writing susceptible as this is to a reasonable construction.

The contract, appellant asserts, was clear and unambiguous:

"2B9 Borrow and Surplus Cut
a. When sufficient materials are not available from cuts to establish the required grading, the contractor shall supply the fill required ....
b. The Contractor shall note that some fill, if required, is available from the site designated 'Borrow Area’ as shown on the drawings unless otherwise directed . . ..”

As such, parol evidence of a prior representation to the contrary was not admissible. For support, appellant relies on the case of Delmarva Drill Co. v. Tuckahoe Shopping Center, 268 Md. 417 (1973), where the Court of Appeals held inadmissible an oral statement by a drill company employee to appellee that usable water would be found, whereas a written contract subsequently entered into between the company and appellee specifically disclaimed any guarantee as to water quality. Judge Levine, quoting several of his predecessors, stated, at 426:

" '[P]arol evidence is inadmissible to vary, alter or contradict a writing which is complete and unambiguous, where no fraud, accident or mistake is claimed, [citation omitted] but where doubt arises as to the true sense and meaning of the words themselves or difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and determined by evidence dehors the instrument.’ ”

Appellee corporation initially raises the threshold issue of waiver. It argues that after appellant objected to Openshaw’s testimony that he was "assured” by Hall that there was sufficient impervious fill, it called Hall to the stand and questioned him on the alleged conversation, thus waiving its prior objection to the evidence of that conversation.

The record reflects that the appellant did indeed solicit this testimony from its witness Hall:

"Q. Now, Mr. Openshaw in his testimony stated that he had a phone call with you on or about March 15, 1977 ....
Q. What was said in the conversation between you and Mr. Openshaw?
A. Are you talking about the alleged . . .
Q. The one that . . .
A. ... in March?
Q. Yes.
A. Well, for one thing, let me set the record straight. I do not recall every [sic] talking to Jim Openshaw before the bids.”

Hall testified that he did, however, recall talking to one of Openshaw’s estimators, Mr. Vonella, about the borrow. He told Mr. Vonella that it was Vonella’s responsibility to determine whether there was sufficient impervious material on-site and that he would guarantee nothing, but that his "gut reaction, off the record” was that there was enough material in and beyond the area of the pond.

While appellee acknowledges that appellant need not "play the ostrich and simply ignore the evidence” admitted over its objection in order to preserve the issue for appeal, City of Baltimore v. Smulyan, 41 Md. App. 202, 219 (1979), it argues that appellant’s actions at trial exceeded allowable bounds. In Smulyan, Judge Wilner, speaking for this Court, alluded to those bounds, at 219:

"[Appellant] may cross-examine . . . the witness about the evidence, Peisner v. State, 236 Md. 137, 144 (1964), and make other reasonable efforts to show that the evidence, admitted over his objection, should nevertheless be discounted or disregarded by the trier of fact. This is all that [appellant] did in this case, and it is quite different from soliciting (or failing to object to) the independent reception of the same evidence, from which a waiver may be implied.” (Emphasis supplied.)

We agree that a party may, under some circumstances, waive his objection to testimony by subsequently offering testimony on the same subject. Peisner v. State, 236 Md. 137 (1964). The rationale, as noted in Linkins v. State, 202 Md. 212, 224 (1953), is that "[i]f inadmissible evidence is admitted over objection, or produced by the party who objected, the error is harmless.”

We do not think, however, that the general rule of Peisner and Linkins is applicable under the facts of this case. Any error made in the admission of Openshaw’s testimony was not rendered harmless by Hall’s complete denial on direct examination. Rather, that denial was a "reasonable effort” on the part of appellant to show that Openshaw’s testimony "should nevertheless be discounted or disregarded.” In our view there was no waiver by appellant.

Having found no waiver, we now deal with the substance of the parol evidence rule. In Whitney, Exec. v. Halibut, 235 Md. 517, 527 (1964), the Court, quoting from 3 Corbin, Contracts § 573 (rev. 1960), stated:

" 'When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.’ ”

The statement of the rule suggests the limitations of its application. The parol evidence rule only applies where the parties to a written contract agree or intend that the writing shall be their whole agreement. 4 Jaegar, Williston on Contracts § 633 (3d ed. 1961); 32 A. C.J.S. Evidence § 945 (1964); 3 Corbin, Contracts § 582 (1960). Whether it is applicable in this case requires an initial substantive determination of what constitutes the final and integrated agreement of the parties. See Restatement (Second) of Contracts §§ 213, 214. Appellee argues, and the trial judge agreed, that the representation made by appellant’s engineer to Openshaw was an oral clarification meant to be incorporated as part of the contract.

As specifically provided for in the definitional section of the Department of General Services contract:

"The Contract Documents consist of the Agreement, the General Conditions, Supplementary Conditions, Instructions to Bidders, Proposal, Bond, the Drawings and Specifications, all Addenda duly issued prior to submission of bids, all Change Orders duly revised, and any amendments to the contract duly executed by both parties. These form the contract.” (Emphasis supplied.)

The "Instructions to Bidders” clause, expressly made a part of the contract, includes this paragraph:

"7. Discrepancies
Should a bidder find discrepancies in the plans and/or specifications or should he be in doubt as to the meaning or intent of any part thereof, he must, not later than seven (7) days (Saturdays and Sundays excluded) prior to the bid opening, request clarification from the Architect, who will issue an addendum or otherwise clarify the matter. Failure to request such clarification is a waiver to any claim by the bidder for expense made necessary by reason of later interpretation of the contract documents by the Architect.”

An addendum, as defined in the contract,

"is the form of clarification amending or interpreting the Contract Document issued by the Architect prior to the receipt of the bids.”

Appellee maintains that the above cited contract language, in conjunction with the conspicuous lack of an integration clause, indicates that the parties contemplated that pre-bid clarifications such as the one given by appellant’s agent Hall to appellee were to be incorporated into the contract, and the contract does not require these clarifications to be in writing. Since the parties, according to appellee, did not consider the written contract to be the complete and accurate integration of their agreement, parol evidence was admissible to prove the terms and conditions of that agreement.

Appellee asserts that this case is distinguishable from Highway Const. Co. v. Miami, 126 F.2d 777 (5th Cir. 1942), in which oral statements or clarifications made prior to bidding were held not admissible to change, contradict, or vary the written contract where the contract expressly provided that the contracts were to be fully written. In Highway Const. Co. the contract provided that "work and dimensions must be in strict accord with [the engineer’s interpretation of the plans, specifications and contract] except only when the Director of Public Service may in writing authorize an exception.” This contract language and similar language in the Charter of the City of Miami made it "exceedingly clear” to the court that "the parties intended, agreed, and understood that their contracts were to be fully written.”

We are of the view that the distinction between Highway Const. Co. and the case at bar is significant. Not only is there no express language in the contract before us precluding oral clarifications, but the contract language strongly suggests that such oral clarifications are anticipated. The instructions to bidders, expressly made a part of the contract, set forth a procedure whereby appellee and any other prospective bidder could obtain clarification and other additional information from appellant’s engineer. At least one other hopeful bidder used this process and was given the same information regarding the availability of impervious fill.

Also significant is the absence of an integration clause in the contract. The parties could have indicated in the written contract that the writing was to be a complete integration of their agreement or that there was a partial integration as to the item at issue; however, they did not do so. See Williston on Contracts, §§ 633-636. Despite the specific provision in the written contract that the contractor had to supply its own impervious fill, see IX Wigmore, Evidence § 2430 (3d ed. 1940), the above two factors militate against a conclusion that the written contract appeared on its face to represent all of the transaction as to that element. Because the agreement appears not to be complete, the trial court did not err in looking to the extrinsic evidence of prior oral assertions by Hall in order to determine whether the contract was an integrated one and, if not, what were its terms. See Restatement (Second) of Contracts § 214.

The State, in its appeal, also raises the issue of sovereign immunity. It argues that the alleged oral statement created an obligation on the State not created in the written contract; that in so finding this obligation, the court substituted an oral contract for a written contract; and that in light of the fact that the Maryland General Assembly has waived the State’s sovereign immunity defense only for written and not oral contracts, no damages could properly be assessed against the State in this case.

As we see it, appellee filed an action in contract based upon a written contract. The fact that appellee’s claim relies on an oral statement made during the bidding period to explain the contract does not transform that written contract into an oral contract.

The State next protests a lack of evidence of any damages sustained by appellee. It argues that the unrebutted testimony of an expert witness for the State was that there should not. reasonably have been any increased costs incurred by appellee in having to haul suitable fill from pits located 800 to 1500 feet away as opposed to it being on-site, because more efficient machinery was used to make those hauls than would have been used to "shuffle dirt” around in the immediate area.

This evidence was not only disputed, it was expressly disbelieved by the court. The trial judge found the State’s expert’s testimony "somewhat confusing” and "didn’t think that [he] really meant to say that it would cost less to bring dirt from fifteen hundred yards away and put it in place ... than it would if he was able to just shove it over there ... from a hundred feet away.”

Appellee, on the other hand, presented evidence that the fair and reasonable cost of transporting impervious fill from the borrow pit to the construction site was ninety-seven and one-half cents per cubic yard. The State’s expert witness agreed, on cross-examination, that it was a fair and reasonable cost for hauling. Openshaw testified that when the cost to him of preparation of the borrow pits was also considered, total additional cost to him was $1.96 per cubic yard.

We cannot say that the trial court was clearly erroneous in finding appellee’s witnesses’ testimony more credible.

Cross-Appeal

Cherry Hill submitted a second claim to the State for damages incurred as a result of the State’s failure to provide permanent electrical service to the job in a timely fashion. We turn now to that claim.

The initial work under the contract began with written authorization from the State on July 21,1977, and was to be completed under the terms of the contract by July 25, 1979, 730 calendar days later. Cherry Hill was to supply all temporary power needed during the construction period and the Southern Maryland Electric Company (hereinafter SMEC) was to provide all permanent service once the State furnished it such information as power requirements and location, and paid a fee.

In the fall of 1977 upon the completion of one of three buildings, Cherry Hill requested of the State electrical service to provide cold weather protection. The State declined because it was clear that Cherry Hill was obligated to provide whatever temporary electrical service was needed during construction. When Cherry Hill was nearing completion of the project, it informed the State by letters dated October 6 and October 19,1978, that if permanent electrical service was available, among other things, to operate the pumps in order to fill the ponds, the project could be completed in mid-December. Gpenshaw testified that he needed the permanent power hook-up before the job could be certified by the State: the temporary generators were not sufficiently powered to operate the wells or heat the building, and it made more sense that the Stale install its permanent system than for him to install another more powerful temporary system for that purpose. Because the service was not provided, Openshaw testified, the ponds remained unfilled and final work, such as landscaping', seeding, and painting remained uncompleted through the winter months. Cherry Hill informed the State that if the power was not provided it would shut down operations and it did do so until the spring. In May, 1979, SMEC was able to provide electrical service and all work was completed by Cherry Hill at that point with the exception of a "few punch list items” which were completed in July.

Cherry Hill, in the first count of the declaration filed against the State, alleged that because the State failed to fulfill its obligation under the contract to provide such electrical service, it incurred additional costs in the form of extended overhead costs through the winter as well as damages incurred due to winter weather. Specifically, Cherry Hill claims the cost of heating the buildings during the winter of 1978-79, cleaning up after a gas heater broke, and labor and overhead costs incurred after December, 1978. The trial court, in denying the claim, stated that while Cherry Hill’s job was "very near completion almost six months before it was contemplated to be finished,” there was "no affirmative obligation on the part of the State to put electrical power in before any particular time.. ..” Because the outside completion date of July 21, within which work was to be completed, had not yet come to pass and because Cherry Hill was obligated to provide any temporary power needed during construction, the trial court concluded that the State did not have to accept the nearly completed job in December, 1978, and ensure that electrical service was promptly provided.

Cherry Hill, cross-appealing that decision, argues that the State was obligated, as a matter of law, to cooperate in the successful completion of the contract. "It would be sad commentary on the law,” it argues, "to permit dalliance by the State to penalize a prompt and efficient contractor by requiring the contractor to sit on its hands for many months accomplishing nothing productive waiting for the State to do what it agreed to do, where no reason exists for such dalliance.”

Indeed, it would be if such were the case. As one sister court aptly put it, "an owner may not prevent a contractor’s early completion of his assignment with impunity.” Housing Authority v. E. W. Johnson Const. Co., 264 Ark. 523, 573 S.W.2d 316, 323 (1978).

It is well settled that "one delayed in the execution of a contract as the result of a default by the other contracting party would be entitled to recover damages thus sustained.” Dewey Jordan, Inc. v. Md. Nat’l Cap. P. & P. Comm., 258 Md. 490, 497 (1980). Even where a contractor has completed his project within the time alloted under the contract, the other contracting party may be liable in damages for additional expenses realized where it causes delay in completion, such as where the owner breaches its implied warranty to provide accurate and reliable plans and specifications, Housing Authority, supra, or where a supplier delivers defective materials, see District Concrete Co. v. Bernstein Concrete, 418 A.2d 1030 (D.C. App. 1980).

Although we believe the trial judge was wrong in concluding that the State would under no circumstances have any obligation to accept the work at any time before the expiration of the 730 days, we find that the trial judge was not clearly erroneous in concluding that under the facts, the State was not obligated to accept the buildings and ponds as they stood in December, 1978.

There was evidence that Cherry Hill had not provided temporary power, as was required in the contract, sufficient to test the pumping equipment it had built. Such testing, and presumably the filling of the ponds using those pumps, was required of the contractor under the contract. The State argued that Cherry Hill was attempting to impose on the State not merely a duty to cooperate but a duty "to do Cherry Hill’s work.”

The trial court, agreeing that Cherry Hill was obligated under the contract to test the equipment and that it could not do so with the temporary power it had provided, was therefore not clearly erroneous in concluding that the State was not obligated to install permanent power as early as December, 1978.

Judgment affirmed.

Costs to he divided equally between appellant and appellee.

      . See Md. Ann. Code, art. 21, § 7-101, effective July 1, 1981, formerly art. 41, § 10a.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    LOWELL THOMAS et al. v. ALLEGANY COUNTY BOARD OF EDUCATION et al.
    [No. 656,
    September Term, 1981.]

      Decided April 7, 1982.

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

      Robert H. Reinhart, with whom was Robert A. Destro on the brief, for appellants.

      Armand M. Pannone, Jr., for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The appellants, academically qualified students in private schools, contend that as residents of Allegany County they are entitled to participate in any program or instructional classes offered by the Allegany County Board of Education, appellee. The trial judge, James S. Getty, sitting in the Circuit Court for Allegany County, rejected their contention and so do we.

Since 1976 the Board has funded an All-County Music Program, which encompasses elementary, junior and high school bands, choral and orchestral programs. The portion of the program at issue is the All-County High School Band which, after allowing both public and private school participation in 1978 and 1979, limited its participants in 1980 to those enrolled in the Allegany County Public School System. Members of the band are chosen after being auditioned, in preparation for which each student prepares his selection of music. They perform individually before music professors from neighboring universities who are paid by the Board. The professors analyze each student’s performance, suggest techniques for improvement and ultimately rate the student on a scale from 1 to 6. A list of students is then compiled for each instrument and the band directors and music teachers of schools in the county select students with the highest ratings for participation in the band that year. Academic credit is given for participation. Students who participate in the competition are said to enjoy a number of benefits, including the experience of performing under pressure and in a competitive atmosphere, enhanced resume value by citing involvement in the band, and finally, exposure to individuals who can provide information as to college level music programs. At the time of trial, all appellants were enrolled in a parochial school, and would have been eligible to audition for the All-County Music Program had they been full-time students in the public school system. Three of the students participated in the 1981 auditions for the band pursuant to the trial court’s preliminary order, received the highest rating in the competition, and would have been seated as members of the band if the prior policies had been continued. They had participated in the program during the time they attended public elementary school and in 1978 and 1979 when the program was open to private school students. Testimony of each of the three students indicated his desire to participate in the All-County Band, but each emphasized that he had originally enrolled in the Bishop Walsh High School because of its superior academic program and that he did not intend to transfer to the public school system to participate in the band.

Of the eleven high schools in Allegany County, two are private schools. One is Bishop Walsh High School, a Catholic school in Cumberland, and the other is Calvary Christian Academy, a protestant school in Cresaptown. The appellants in this action attend Bishop Walsh High School. In recent years, the music curriculum of that school has expanded to include private music lessons, music classes and a jazz ensemble. In 1977 a marching band was formed. Each of the students participates in one or more of these programs.

The only exception to the School Board’s practice of excluding private school students from educational programs offered on the premises of the public schools is with respect to vocational education. Dr. Wayne Hill, Superintendent of Schools, testified that in the case of vocational training, equal opportunity for students who attend private schools is required by the Federal Government as long as satisfactory schedules can be established between the private and public school. See, 20 U.S.C. §§ 2332, 2401 (b) 2.

I Free Exercise of Religion

The appellants assert that the appellee’s refusal to permit the students at Bishop Walsh High School to participate in the All County Music Program violates their rights under the free exercise clause guaranteed by the First Amendment of the Constitution of the United States. More specifically, they contend that the Board, having decided to offer the music program to public school students, must extend the benefits of such program to private school students as well. Although parents have a constitutionally protected right to direct the religious training of their children, including their education in religious-affiliated schools, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L.Ed. 1070 (1925), this right to attend parochial school does not in our view necessarily establish a concomitant right for these children to remain eligible for participation in public school programs.

The free exercise clause bars "governmental regulation of religious beliefs as such, or interference with the dissemination of religious ideas.” Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L. Ed. 2d 168 (1971). To meet the constitutional mandates established by the free exercise clause, the application of a rule either (1) must not interfere with, burden, or deny the free exercise of a legitimate religious belief or (2) must be justified by a state interest of sufficient magnitude to override the interest claiming protection under the free exercise clause. Wisconsin v. Yoder, supra, 406 U.S. at 214. The decision to confine participation in the All-County Band to public school students does not infringe upon the private school students’ freedom of religion. The rule neither prohibits a parent from enrolling the child in a private school, nor deters the students from following the practices of their faith. The rule merely prevents a child from reaping the benefits of a public school activity once the constitutional right to a private school education is exercised. The impact of the rule on freedom of religion is minimal. As we have stated each of the appellants testified that he chose to attend Bishop Walsh in view of its superior academic program. Further, each indicated that he did not intend to transfer to the public school system merely to become eligible to participate in the All-County Band.

On the other side of the scale, it appears that the Board has a legitimate interest in confining public school programs to public students. Although the administrative impact of a decision mandating the participation of the private students into this public school program appears to us to be trivial, the precedent as it affects the broader spectrum of school administration is of a far more deleterious nature. With the opening of such "Pandora’s box”, there would be no device to preclude, for example, a. private school having difficulty securing a qualified chemistry teacher from unilaterally deciding to transport the entire student body to a nearby public school for their chemistry education. The potential for administrative disruption is obvious. Thus, while we may agree that little if any administrative hardship would inure to the Board in permitting these three students to participate in the All-County Band, it is not for this Court to hold that the Board must admit them, in view of the broader implications involved. We think the school administrators and not courts, should decide how much administrative disruption is too much. See Adams v. County Commissioners, 180 Md. 550, 26 A.2d 377 (1942).

II Equal Protection

The appellants further allege that the Board’s rale violates the equal protection guarantees of the State and Federal Constitutions. The right allegedly infringed is that of private school students to be treated similarly to public school students with respect to participation in extra-curricular public school programs.

Generally, where private schools have been excluded from participation in public school extra-curricular activities, courts have applied a rational relationship test to determine whether the private school students’ constitutional rights have been infringed upon. See Denis J. O’Connell High School v. Virginia High School, 581 F.2d 81 (1978), Valencia v. Blue Hen Conference, 476 F. Supp. 809 (1979). The appellants urge, however, that inasmuch as the only private schools affected by the Board decision are religious oriented schools, this ruling should be reviewed under a compelling state interest test. In the preceding section, this Court concluded that the compelling state interest test was met in view of the de minimi burden on the apellant’s freedom of religion and the legitimate interest in avoiding administrative inefficiency. Such analysis is similarly applicable to appellants’ equal protection claims.

Ill Freedom of Educational Choice

Appellants assert that the Board’s policy unconstitutionally burdened their Fourteenth Amendment right to freedom of educational choice, by excluding only those students who chose to attend a religiously-affiliated school. The precise question as it pertains to curriculum seems to have been presented in only one case, Cook v. Griffin, 364 N.Y.S. 2d 632, 47 AD 2d 23 (1975), in which the Supreme Court of New York held that the state was not required to make field trips on school buses available to non-public school students. In so holding the Court observed:

"While there is no question that parents clearly have the right to send their children to non-public schools (Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070), There is no corresponding right to equal aid or even to any aid at all in the absence of specific legislative authorization (Norwood v. Harrison, 413 U.S. 455, 93 S. Ct. 2804, 37 L.Ed.2d 723; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16; Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745). All children, regardless of religious affiliation or economic status in life, have an equal opportunity to attend public schools. The fact that a child, or his parent on his behalf, elects to forego that opportunity deprives him of nothing by state action (Brusca v. Missouri, supra).” Id. at 637.

We agree with the rationale of the New York court that parents and children had a constitutional right to choose where they would receive their education, the choice has been exercised, and now they cannot be heard to complain.

IV Waiver

The appellants maintain that the trial court erred in its determination that they had effectively waived their right to participate in public education programs once they exercised their choice to receive a private school education. In urging the absence of waiver, appellants rely on the criminal standards as set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979). In Fuentes v. Shevin, 407 U.S. 67, 94-95, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the court indicated that the criminal rules of waiver are not appropriate in a civil case. The question is of no import in the instant case, however, in view of the implicit knowledge of each of the children and his parents that he would no longer be considered a part of the public school system. Further, these students were cognizant at all times that they could re-enter the public school system if they so desired; a choice each of the students acknowledged he had no intention of exercising.

V Statutory Rights

The right of Maryland students to a free public school education is protected by a state statute passed in accordance with the Constitution of Maryland. Section 1 of Article VIII of the Maryland Constitution provides: "The General Assembly shall... by Law establish throughout the State a thorough and efficient System of Free Public Schools. . . .” This mandate was implemented in Maryland Education Code Ann. § 7-101 (a) which provides that "all individuals who are 5 years old or older and under 21 shall be admitted free of charge to the public schools of this State.” Thus, in Maryland, the entitlement to education is protected by the due process clause of the Fourteenth Amendment as a property interest. Appellants contend that inasmuch as the students here involved are residents of Allegany County and are within the age limits specified in § 7-101 (a), they are entitled not merely to be admitted to the public schools of this state, but to any part or portion of the public school system which they choose. We cannot adopt such a strained construction. In Maryland Education Code Ann. § 4-107, the Board of Education is authorized to:

"(2) Maintain throughout its county a reasonably uniform system of public schools that is designed to provide quality education and equal educational opportunity for all children;
(3) Subject to this article and to the applicable by-laws, rules, and regulations of the State Board, determine, with the advice of the county superintendent, the educational policies of the county school system; and”

Once again, appellants’ argument must fail in view of the unreasonable burden such construction would place on the efficient administration of the public school system. If the legislature or the school board wishes to permit parochial students to attend selected classes or programs, we see no impediment, Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977), Adams v. County Commissioners, supra, but we do not think it is for any court to mandate such admission under a strained interpretation' of the aforementioned statute.

Decree affirmed.

Appellants to pay the costs.

      . Although the students’ parents are also appellants we shall for simplicity refer only to the students. Although there are other appellees we shall refer only to the Board of Education.

      . The Court of Appeals has construed Maryland Declaration of Rights Article 24 as equal to the federal requirement. We shall continue the discussion of the federal cases and consider that the Maryland case would so follow. See, Board of Supervisors of Elections v. Goodsell, 284 Md. 279, 396 A.2d 1033-1044 n.7 (1979).


author: Moore, J.,

text:
    STATE OF MARYLAND v. JOHNNY CLAYTON JONES
    [No. 720,
    September Term, 1981.]

      Decided April 7, 1982.

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

      Ann E. Singleton, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Diane G. Goldsmith, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Judith R. Catterton, Assistant State’s Attorney for Montgomery County, on the brief, for appellant.

      George F. Paxton, Assigned Public Defender, with whom were Lerch, Early & Roseman, Chartered on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The appellee’s motion to dismiss a charge of first degree rape was granted by the Circuit Court for Montgomery County (Fairbanks, J.) because of lack of jurisdiction. On appeal, the State argues first, that Art. 27, § 465, Md. Ann. Code (1982 Repl. Vol.) (Jurisdiction where victim transported.) confers subject matter jurisdiction because the victim had been abducted by force in Maryland and driven to the District of Columbia where vaginal intercourse occurred. Alternatively, the State contends, common law confers jurisdiction because essential elements of the statutory offense took place in Maryland. We agree with the court below that § 465 pertains to venue, not jurisdiction, but we agree with the State, for the reasons stated herein, that Maryland had jurisdiction under the common law to try the appellee for first degree rape. Accordingly, we reverse and remand.

I

The assistant State’s Attorney and defense counsel stipulated to the following facts: Appellee Johnny Clayton Jones came upon the victim on the morning of April 4,1980, as she alighted from her car in a parking lot in Chevy Chase, Maryland, on her way to work at a restaurant nearby. Appellee forced the victim back into her car, struck her, pushed her head down on the car floor, tied her arms behind her back with a sweater, and drove off. About 10 minutes later, he stopped the car at a bus stop. At that time, he picked up an ice scraper and warned the victim, "you know what damage I can do with this ...” Appellee then drove around for about half an hour and stopped at some park within the District of Columbia where he took the victim out of the car and forced her to submit to vaginal intercourse. Afterward, appellee drove the victim back into Maryland and left her car near the area where he had abducted her. The victim went to work and the police were called.

Subsequently, appellee was apprehended and charged with first-degree rape, kidnapping, robbery, and assault and battery. Following the court’s dismissal of the rape charge on May 4,1981, appellee pled guilty to the other charges and was sentenced to ten years for kidnapping and eight years each on the robbery and assault and battery charges, all concurrent to a sentence he was then serving in Virginia.

II

Criminal jurisdiction has been defined "as the power and authority constitutionally conferred on a court, judge, or magistrate to take cognizance of an offense....” 21 C.J.S. Courts, § 19. The courts of one state cannot take cognizance of a crime committed against the laws of a neighboring state. Bowen v. State, 206 Md. 368, 378, 111 A.2d 844 (1955).

Venue, on the other hand, is the place of the trial, the "county in which a court of appropriate jurisdiction may properly hear and determine the case....” Stewart v. State, 21 Md. App. 346, 348, 319 A.2d 621 (1974).

Venue presupposes proper jurisdiction, 1 Wharton’s Criminal Procedure § 36 at 103 (12th ed. 1974), for without it, a court’s judgment is void. Brown v. State, 37 N.E.2d 73 (Ind. 1941). However, both jurisdiction and venue are founded in locality — the place where the crime occurred. Id. at 78. See United States v. Cores, 356 U.S. 405 (1958). This common factor has led to the use of the term "territorial jurisdiction,” Urciolo v. State, 272 Md. 607, 325 A.2d 878 (1974). Some confusion has resulted in other states from using the terms, venue and jurisdiction, interchangeably. See McBurney v. State, 280 Md. 21, 31, n.7, 371 A.2d 129 (1977).

Whatever the state of confusion elsewhere, this State respects the distinction. In sum, jurisdiction is the power to hear and determine a case; venue signifies the place of trial. Guarnera v. State, 23 Md. App. 525, 328 A.2d 327 (1974).

The statute at issue in the State’s first argument, Art. 27, § 465, is reproduced below:

§ 465. Jurisdiction where victim transported.
If a person is transported by any means, with the intent to violate this subheading and the intent is followed by actual violation of this subheading, the defendant may be tried in the appropriate court within whose jurisdiction the county lies where the transportation was offered, solicited, begun, continued or ended.

We note that the term "jurisdiction” is used twice, although in a territorial sense. The statutory language plainly relates to venue between the counties in Maryland. The circuit court of a county is the proper place to try a defendant accused of a sex offense when his transportation of the victim "was offered, solicited, begun, continued or ended” in that county. Thus, a defendant may be tried for rape in one county even though vaginal intercourse may have occurred in an adjoining county. See Deinhardt v. State, 29 Md. App. 391, 398, 348 A.2d 286 (1975), cert. denied, 277 Md. 736 (1976).

The transportation of the victim, i.e., the actual movement in, through, or to a county, establishes venue. Jurisdiction over the crime itself flows from the general power granted in Md. Cts. & Jud. Proc. Code Ann. § 1-501 (1980 Repl. Vol.). Section 465 does not apply to a defendant who has transported his victim across state lines. The fact that the legislature used the word "county” and not "state” is clearly controlling.

Where the legislature intended to confer jurisdiction, it has done so. For example, Art. 27, § 337 (1982 Repl. Vol.) permits the prosecution for kidnapping of any person who transports his victim "out of or within” the State. Hunt v. State, 12 Md. App. 286, 278 A.2d 637 (1971).

Section 465 has no extra-territorial effect — it is simply a venue statute, as the lower court found. We turn now to the question of whether the court had jurisdiction to try the defendant for first-degree rape under the common law.

Ill

One state cannot punish a defendant for a crime committed in another state. Breeding v. State, 220 Md. 193, 151 A.2d 743 (1959). Specifically, Maryland has no legal right to prosecute a person for a crime committed in the District of Columbia. Regie v. State, 9 Md. App. 346, 357, 264 A.2d 119 (1970). It is indisputable that Maryland has jurisdiction only of a crime committed in Maryland. The essential query is what is meant by "a crime committed in Maryland.” Must every element of a crime occur within the geographical confines of the State? Maryland has addressed this question in the context of multi-element crimes, but there is no prior case involving a statutory rape with extrastate elements.

"All the American states preserve the theory of territorial jurisdiction over local offenses by insisting upon the presence of some local element as a condition to prosecution of crimes which also have extrastate elements.” Leflar, American Conflicts Law, § 111 at 224 (3d ed. 1977). "In many cases, the requisite elements of the crime may be committed in different jurisdictions, and in such cases any state in which an essential part of the crime is committed may take jurisdiction. It is necessary to discriminate carefully between those acts essential to the crime and those acts merely incidental to the crime.” 21 Am.Jur.2d Criminal Law, § 345 (1981). Acts done in one State as a preliminary to completion of a crime in a second State may be, and sometimes are, punished as crimes in the first State. Thomas v. State, 553 S.W.2d 32, 33 (Ark. 1977). The later results give criminal meaning to the earlier acts. Leflar, supra, § 115 at 232. Thus, Leflar reasons, "[i]f the forum has a substantial concern with the criminal act, and can reasonably apply its statutory definition to the local part of the act, it ought to prosecute.” Id., § 113 at 228.

Sexual offenses in Maryland have been codified and structured by degree in Art. 27, § 461 et seq. Prior to the enactment of the subtitle in 1976, the crime of rape existed only at common law in Maryland and was not divided into degrees. Sydnor v. State, 39 Md. App. 459, 387 A.2d 297 (1978). What now constitutes first degree rape is as follows:

§ 462. First degree rape.
(a) What constitutes. — A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person and:
(1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or
(2) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or
(3) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or
(4) The person commits the offense aided and abetted by one or more other persons.
(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for no more than the period of bis natural life. (Emphasis added.)

The primary difference between this statute and common law rape is the inclusion of four aggravating circumstances.

The purpose of the statute was to close "the gap which formerly existed between the common law misdemeanor of assault and the felony of rape... .” Note, Rape and Other Sexual Offense Law Reform in Maryland, 1976-1977, 7 U.Balt.L.Rev. 151, 163 (1977). In so doing, the legislature added elements to the traditional trilogy of common law rape, thus requiring proof of a fourth factor to convict a person of first degree rape. The legislature also broadened the language of common law rape by including "threat of force,” specified the conduct as "vaginal intercourse,” retained the conditions "against the will and without the consent,” and eliminated gender.

Based upon the stipulations in this case, we can isolate five elements:

1) vaginal intercourse,
2) force,
3) lack of consent and against the will,
4) display of article reasonably believed to be dangerous,
5) placement of victim in imminent fear of kidnapping.

The first three plus No. 4 or No. 5 would have to be proved to sustain the charge of first degree rape. Each is therefore integral to the charge. Here, vaginal intercourse occurred in the District of Columbia, force was applied in the initial abduction of the victim in Maryland, and consent was withheld and will overborne in Maryland. That the victim was placed in imminent fear of kidnapping in this State, see Moore v. State, 23 Md. App. 540 (1974), 329 A.2d 48, cert. denied, 274 Md. 730 (1975) may be inferred from the record which relates that the appellee pushed her head down on the floor of the car, obviously to conceal her while driving the vehicle away from the parking lot in Maryland. See Art. 27, § 337. The display of the dangerous article — the ice scraper — may be fairly inferred to have occurred in either Maryland or the District, depending on the location of the bus stop. The victim was unable to tell. Thus, at least three and, inferentially, four, of the elements of first degree rape present in this case were initiated in the State of Maryland.

Like certain other crimes such as robbery, larceny, kidnapping, conspiracy, and murder, the elements of first degree rape may occur over a period of time and in more than one jurisdiction. This reality was recognized by the Fifth Circuit in a case that is strikingly apposite to our own, Leonard v. United States, 500 F.2d 673 (5th Cir. 1974). There, the defendant accosted a woman on an Air Force Base in Alabama, threatened her with a screwdriver, and forced her into his car. They then drove to a motel off base where criminal intercourse occurred. On appeal, the defendant claimed that the federal district court lacked jurisdiction to try him under 18 U.S.C. § 2031. (Penalty for rape committed within the special maritime and territorial jurisdiction of the United States). The Fifth Circuit’s per curiam opinion stated in language appropriate to the instant case:

A sovereign has jurisdiction to try an offense where only a part of that offense has been committed within its boundaries. Ford v. United States, 273 U.S. 593 (1927); Rivard v. United States, 375 F.2d 882 (5th Cir. 1967), cert. denied, Groleau v. United States, 389 U.S. 884 (1967). Therefore, if appellant committed a part of the crime on federal lands, the federal court had jurisdiction.
" 'The federal crime of rape carries with it the requirement of proof of the use of force by the offender and of an absence of consent by the victim.’ Williams v. United States, 327 U.S. 711, 715 (1946).
"in this case the element of force employed by appellant to achieve his purpose began on federal lands and continued to the consummation of the crime at a site off the Air Force Base. We conclude that the trial court had jurisdiction and the judgment of conviction is affirmed.” (Citations omitted.) (Emphasis added.)

Closer to home, Adair v. United States, 391 A.2d 288 (D.C.C.A. 1978), held that the District of Columbia had jurisdiction to convict the defendant of mayhem and assault with a dangerous weapon even though the actual attack and malicious disfigurement occurred in Maryland. The victim in Adair was accosted in the District, driven to a tourist home in Maryland, attacked and cut in Maryland, driven back to the District, and there robbed. The court stated:

"Even if we accept as true appellant’s contention that the altercation took place solely in Maryland, he would still be answerable under the laws of the District of Columbia:
'A crime may be a single act and immediate in all its consequences and the locality where it was committed is its "vicinage.” On the other hand, a crime may be the result of a series of acts or the result of a single act. The direct consequences may be made to occur at various times and in different localities. The criminal act, the notice of the perpetrator, the cause, and the effect, are but parts of the complete transaction. Wherever any part is done, that becomes the locality of the crime as much as where it may have culminated.’” Id. at 290. (Emphasis added.) (Citation omitted.)

Thus, the defendant’s continuing interaction with the victim in the District and Maryland was sufficient to confer jurisdiction over all the crimes committed during the episode.

Jordan v. United States, 350 A.2d 735 (D.C.C.A. 1976), cited in Adair, held that even though the forcible taking had occurred in Virginia, the defendant could be convicted of robbery in the District because the robbery was not completed until the defendant had escaped with the money. In that case, the defendant and two fellow convicts commandeered a car in Virginia, robbed one of the two occupants at knifepoint and then dropped them off in the District. Chief Judge Reilly stated:

"Under the law of this jurisdiction, robbery takes on the characteristics of a continuing offense when there is a lapse of time between the taking and the safe escape of the robber with the proceeds.” Id. at 738.

Both Adair and Jordan found no jurisdictional limitations imposed by the District of Columbia statute granting general criminal jurisdiction to the court.

States that have relied on common law jurisdiction to try defendants whose crimes crossed state lines include:

Arizona (State v. Scofield, 438 P.2d 776, 1968): The court found jurisdiction on the basis that one of the elements of embezzlement — failure to return the leased car — "negatively occurred” in Arizona. Id. at 784. The court did not consider where the intent to embezzle was formed, instead relying on the principle enunciated in 21 Am.Jur.2d, § 345, supra.
Arkansas (Thomas v. State, 553 S.W.2d 32, 1977): The defendant argued that the court’s refusal to direct a verdict of acquittal on an aggravated robbery charge was error because no element of that crime occurred in Arkansas — all criminal activity was in Oklahoma. The court found that one continuous threat of force was applied by the appellant, beginning when he commandeered the victim’s car in Arkansas and culminating in the actual taking of the property. "The force was initiated in Arkansas and extension of the acts into Oklahoma does not defeat Arkansas jurisdiction.” Id. at 33.
Indiana (Conrad v. State, 317 N.E.2d 789, 1974): Defendant was tried in Indiana for a murder in which the fatal blows were inflicted in Ohio. The court instructed that the jury had to find the killing "part of one continuous plan, design and intent” that originated in Indiana with the kidnapping and assault of the victim. Id. at 791. The Supreme Court of Indiana affirmed, finding that the assault and abduction provided "an adequate jurisdictional base” for appellant’s conviction of murder....” Id. at 792.
Michigan (People v. Kirby, 201 N.W.2d 355, 1972): One of the elements of unlawfully driving away an automobile is the driving away, which, the court held, was continuous in nature, thus extending from Indiana, where all the other elements occurred, into Michigan. The court found that Michigan had jurisdiction to try the offense because part of it occurred within the State. Id. at 356-7 and cases cited therein.
New Jersey (State v. Reldan, 400 A.2d 138, 1979): The court, relying on "the well-established principle that a sovereign has jurisdiction to try an offense where only part of that offense has been committed within its boundaries,” concluded that some sort of criminal contact transpired in New Jersey. Id. at 141. Both murder victims had been abducted from their homes in New Jersey. Their bodies were found in upstate New York. Ignoring the general presumption that death occurs where the body is found, see Batdorf, infra, the court found enough circumstantial evidence to support a reasonable inference that the victims were murdered in New Jersey, and their bodies transported to New York "in an effort to escape this State’s jurisdiction.” Id. at 142.
North Carolina (State v. Batdorf, 238 S.E.2d 497, 1977): The defendant was convicted of murder but claimed lack of jurisdiction because the killing occurred in some place other than North Carolina on a trip that began in Ohio. The court held that a prima facie showing of jurisdiction — based on the fact that the body and murder weapon were found in North Carolina — was sufficient to take the question to the jury, and adopted the majority rule that the State must prove jurisdiction beyond a reasonable doubt. Id. at 502-3.

A number of states have codified the common law rule that the occurrence of essential elements of a crime within the physical territory of a state is sufficient to give the state jurisdiction. The California Penal Code provides, first, that all persons who commit, in whole or in part, any crime within the state are liable to punishment under the laws of the state, § 27, Subd. 1 and, second, that:

"Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of such intent, which culminates in the commission of a crime, either within or without this state such person is punishable for such crime in this state in the same manner as if the same had been committed entirely within this state.” § 778 a.

The standard of construction of the statute is set out in People v. Buffum, 256 P.2d 317 (Calif. 1963):

"Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.” Id. at 321. See also People v. Utter, 101 Cal. Rptr. 214 (Ct.App. 1972).

Maryland is, of course, without statutory authority for the exercise of jurisdiction in a criminal case where essential elements of the crime have occurred both within and without the State. However, our study and analysis of the cases decided by the Court of Appeals and this Court lead to the conclusion that common law jurisdiction in such situations is also recognized in Maryland and that the lower court erred in failing to assume jurisdiction in this case.

In the very early case of Bloomer v. State, 48 Md. 521 (1878) certain elements of the crime of conspiracy occurred in Pennsylvania, but other acts in furtherance of the conspiracy took place in Maryland. In speaking of the "fields of operations” of conspirators, the Court observed that:

"[Conspiracies] . .. sometimes embrace various States, as the necessities of the conspirators require. Yet the State in which all or any of them reside, and in which the conspiracy originated or was conducted, has ample jurisdiction; otherwise the offense would be committed with impunity.” Id. at 535.

In an interesting application of the common law, the Court of Appeals in Worthington v. State, 58 Md. 403 (1882), sustained an indictment for larceny returned in Washington County when the evidence showed that the goods had been stolen in West Virginia and brought by the defendant into Maryland. Larceny, the Court ruled, "is a crime at common law, and consequently, an offense in every jurisdiction in which the common law is part of the governing law. And, at common law, every asportation is a new taking.” Id. at 409. The Court turned aside an objection that the miscreant would be subject to punishment in West Virginia as well as in Maryland. Id. at 410. Bartkus v. Illinois, 359 U.S. 121 (1959); see Hamilton v. State, 12 Md. App. 91, 277 A.2d 460 (1971); Frasher v. State, 8 Md. App. 439, 260 A.2d 656 (1970).

An early Maryland venue statute, Acts of 1809, ch. 138, § 17, enacted as Code, Art. 27, § 278, was used to find jurisdiction of a homicide where the mortal blow was inflicted in Maryland and death occurred in Pennsylvania. The statute, fixing venue in the county where the mortal blow was struck or poison administered, was held to be declaratory of common law in Stout v. State, 76 Md. 317, 25 A. 299 (1892). Chief Judge Alvey stated for the Court:

"And if this provision of our Code be simply declaratory of the common law, as we suppose it to be, the same reason and principle equally apply to the case where the mortal blow or poison is given in any county in this State, and the party so stricken or poisoned shall, in consequence of the blow or poison, die out of the State, within the year and a day after the blow given or poison administered, as to the case provided for by the terms of the statute. In such case it is the law of Maryland that is violated, and not the law of the State where death may happen to occur. By the felonious act of the accused, not only is there a great personal wrong infíicted upon the party assaulted or mortally wounded, while under the protection of the law of the State, but the peace and dignity of the State where the act is perpetrated is outraged;.. ” (Emphasis added.) Id. at 323.

Later Maryland cases have been more specifically concerned with the locus of the elements of the crime charged. Thus, embezzlement may extend over a period of time and acts in furtherance of the offense may take place in several jurisdictions. Peddersen v. State, 223 Md. 329, 164 A.2d 539 (1960). The Court emphasized that in embezzlement, as in many crimes, the essential element is intent; "venue may be laid in any county in which the money or property was received with intent to embezzle, or in the county in which the money or property was possessed and the intent to embezzle was formed, regardless of the fact that actual conversion may have taken place in another county or state.” (Emphasis added.) Id. at 337.

The crime of forgery was involved in Medley v. Warden, 210 Md. 649, 123 A.2d 595 (1956), where appellant contended there was no proof that the crimes were committed in Maryland. The defendant travelled from North Carolina to Fairfax, Virginia, with a printing press and other paraphernalia, and prepared a number of bogus checks in his motel room in Fairfax. They were later endorsed by him and used to make purchases in Annapolis and Baltimore, Maryland.

Holding that the jurisdictional requirement was satisfied by the fact that the offense of uttering occurred where the charges were laid, Judge Henderson, later Chief Judge, wrote for the Court:

"Jurisdiction over the subject matter may attach where acts are performed in one state with the intention of producing an illegal effect in another, or where the crime is consummated. State v. Kriss, 191 Md. 568, 575; Restatement, Conflict of Laws, § 65, and § 428. See also Bloomer v. State, 48 Md. 521, 535, and Stout v. State, 76 Md. 317. It is not a fatal objection that there may be concurrent jurisdiction at the place where the offense is begun. 1 Wharton, Criminal Law (12th ed.), § 334.” Id. at 652.

Similarly in the present case, it is not a fatal objection that the District of Columbia may have concurrent jurisdiction. See Worthington, supra, 58 Md. at 410; Frasher, supra, 8 Md. App. at 447.

Appellee argues that only the District has jurisdiction of the first degree rape charged in this case, relying on Goodman v. State, 237 Md. 64, 205 A.2d 53 (1964). Appellant there was convicted under Art. 27, § 295, Md. Ann. Code (1957, 1966 Cum. Supp., Vol. 3), which provided that no "person shall obtain or attempt to obtain a narcotic drug ... (1) by fraud, deceit, misrepresentation or subterfuge”; the defendant in Goodman obtained in Maryland a doctor’s prescription for dilaudid by falsely representing his identity and feigning a kidney ailment. The drugs were purchased in the District of Columbia. The indictment charged that the defendant did "obtain” unlawfully a narcotic drug in Montgomery County. Based upon dictionary definitions of "obtain,” the Court concluded that appellant did not obtain the drug until he had possession of it in the District.

On the strength of Goodman, appellee urges in his brief that, "where one of the essential elements of a crime took place in the District of Columbia, the fact that the intent to commit that act may have been formed in Maryland is not sufficient to confer subject matter jurisdiction on the State.” Of course, the formation in Maryland of the intent to rape the victim in the District cannot be deemed controlling. But the essential element of vaginal intercourse (repeatedly emphasized by appellee) is not the only proscribed act in first degree rape, as was the obtention of drugs in Goodman. It was one of several essential elements specified in the rape statute, supra.

Similarly, appellee’s reliance on Urciolo v. State, 272 Md. 607, 325 A.2d 878 (1974) and Bowen, supra, is misplaced. In Urciolo, a District of Columbia attorney was convicted of embezzlement arising out of the conversion of partial proceeds from a real estate settlement involving a tract of land in Anne Arundel County, Maryland. The Court of Appeals, applying Peddersen, supra, found a lack of jurisdiction because none of the elements of the crime occurred in Maryland. Although appellant might have had a "transitory intent” to convert, there was no receipt nor possession of the check in Maryland; the "only act of appropriation was the appellant’s overt and explicit act of conversion within the District of Columbia.”

The Bowen case involved the conviction of the President of a title company in Montgomery County on charges of larceny after trust and embezzlement. The checks which formed the basis of the entrusted funds were received in Bethesda, Maryland, and deposited in the Security Bank in the District of Columbia. Reversing the convictions because of lack of jurisdiction, the Court of Appeals assumed, without deciding, that jurisdiction in embezzlement lies where the intent is formed, and found that there was insufficient evidence of intent to embezzle at appellant’s Bethesda office where the checks were received. The Court also stated that the essential element in larceny after trust is the conversion, and conversion is a single offense, complete in itself. "In the instant case, the checks were deposited in the District of Columbia, were paid in the District of Columbia, and the money was withdrawn in the District of Columbia. We are, therefore, of opinion that the Circuit Court for Montgomery County had no jurisdiction in this case.” 206 Md. at 379. Thus, for all practical purposes, the entire crime in Bowen occurred in the District of Columbia and, for aught that it avails appellee, the Bowen case is a veritable slender reed.

In our view of Maryland law, it is not essential to criminal responsibility that the accused perform every act necessary to accomplish the crime within the geographical confines of Maryland. We find nothing in the decided cases of the Court of Appeals which would militate against the proposition succinctly stated by the Supreme Court of Vermont in State v. Harrington, 260 A.2d 692, 697 (1969), supra, n.8:

"Where the crime is composed of an interstate series of acts, it is jurisdictionally competent for a state to attach legal consequences to any overt act committed within its boundaries, even though the final impact and injury may occur elsewhere.”

The lower court, ruling on appellee’s motion, appears to have considered only the element of vaginal intercourse occurring in the District of Columbia; and this was analogized to the homicide in State v. Hall, 19 S.E. 602 (1894), which occurred in a shooting incident across state lines. As previously stated, the new Maryland statute which defines first degree rape includes essential elements which, according to the stipulated facts, occurred in Maryland. These overt acts were sufficient to give the court jurisdiction to try the appellee for first degree rape. Of course, territorial jurisdiction represents a factual question for the jury to resolve with appropriate instructions and the State has the burden of proof beyond a reasonable doubt. See Annot., 67 A.L.R.3d § 10 at 1004 (1975). See also, Batdorf, supra; Conrad, supra; and Lane v. State, 388 So.2d 1022 (Fla. 1980).

Order granting motion to dismiss Count I of the indictment reversed; case remanded for trial on charge of fírst degree rape; appellee to pay the costs.

      . Because the statutory language is unambiguous, we need not consider legislative history to determine legislative intent. State v. Fabritz, 276 Md. 416, 421-2, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976), except to point out that a sponsor of proposed amendments to the rape statute described the one relating to § 465 as follows: "S.B. 28 — Rape and Sexual Offenses — Venue. This bill clarifies the venue section of the rape and sexual offenses statute. . . .” Memorandum from Steny Hamilton Hoyer, President, Senate of Maryland, Jan. 9,1978. Further, when the predecessor of § 465 was first enacted in 1924, it was accompanied by an explanation that its purpose was "to fix the jurisdiction over the said offenses,” as between the counties and Baltimore City. Laws of Maryland, ch. 359, p. 943 (1924). This history affords another example of the loose usage of the word, "jurisdiction.”

      . At common law, an offense consisting of a series of acts, part of which may occur in one county and part in another, was punishable in neither unless enough acts were done in one county so as to constitute a complete offense. To alleviate the resultant anomalies, venue statutes were enacted, establishing venue in the county where the crime was initiated and/or in any county in which one of the elements occurred. 21 Am.Jur.2d Criminal Law § 366 (1981). See Moore v. Commonwealth, 523 S.W.2d 635 (Ct.App.Ky. 1975); cf., State v. Longway, 400 A.2d 1002 (Vt. 1979).

      . As Judge Fairbanks stated: "I see no possible way of escaping the use of the word, 'county.’ If the legislature had chosen to confer jurisdiction as have other states, it could easily have done so by saying, in effect, that this state could try a sex offense if all or any part of the offense occurred in the State of Maryland....”

      . "[W]hat are the boundaries is a question of law, and where the boundaries are is a question of fact.” Rusha v. Little, 309 A.2d 867, 869 (Me. 1973). Thus, after deciding that a state has jurisdiction, the court may give to the jury the question of where the crime actually occurred when the facts are in dispute. See State v. Batdorf, 238 S.E.2d 497 (N.C. 1977).

      . A representative sampling of the many Maryland criminal cases that span geographical boundaries includes: Conspiracy, Bloomer v. State, 48 Md. 521 (1878); Boddie v. State, 6 Md. App. 523, 252 A.2d 290 (1969). Homicide, Stout v. State, 76 Md. 317, 25 A. 299 (1892). Embezzlement, Bowen v. State, 206 Md. 368, 111 A.2d 844 (1955); Peddersen v. State, 223 Md. 329, 164 A.2d 539 (1960). Obtaining narcotic drug, Goodman v. State, 237 Md. 64, 205 A.2d 53 (1964). Robbery, Hamilton v. State, 12 Md. App. 91, 277 A.2d 460 (1971). Conversion, Urciolo v. State, 272 Md. 607, 325 A.2d 878 (1974). Kidnapping, Isaacs v. State, 31 Md. App. 604, 358 A.2d 273 (1976).

      . Strict territorial theory, unrelieved by mitigating fictions, has helped defendants who were careful about their travel plans, according to Leflar. Thus, the theory of constructive presence in the state was found to confer jurisdiction and/or venue in Simpson v. State, 17 S.E. 984 (Ga. 1893). There the defendant in South Carolina, who fired a pistol at the victim across the river in Georgia but missed, was convicted of assault by the Georgia court, which found that he was present in the state through the agency of his "leaden messenger.” Id. at 985.

      . Courts are generally unwilling to carry this theory to extremes. See, e.g., People v. Buffum, 256 P.2d 317 (Calif. 1953) (mere preparation insufficient to confer jurisdiction; acts must at least be the equivalent of the crime of attempt) and State v. Baldwin, 305 A.2d 555 (Me. 1973) (reasonable doubt whether rape committed in Maine or New Hampshire; no jurisdiction).

      . See, for example, State v. Harrington, 260 A.2d 692 (Vt. 1969). "Where the crime is composed of an interstate series of acts, it is jurisdictionally competent for a state to attach legal consequences to any overt act committed within its boundaries, even though the final impact and injury may occur elsewhere.” (Citations omitted.) Id. at 697.

      . In State v. Gallup, 520 S.W.2d 619 (Mo. Ct. App. 1975), the defendant claimed the State had no jurisdiction or venue to try him for forcible rape because the State failed to prove the crime occurred in Boone County, Missouri. In construing Missouri’s venue statute, the court found that the initial threat of physical violence constituted an element of the rape statute. Thus, "it is of no consequence that the penetrations of prosecutrix occurred at some other place, or even in some other county.” Id. at 622. See also State v. Burnside, 527 S.W.2d 22 (Mo. Ct. App. 1975).

      . The cases that rely for jurisdiction on any part of the crime occurring within the proper locality are reminiscent of the minimum contacts theory of interstate commerce as expounded in International Shoe Co. v. Washington, 326 U.S. 310 (1945). At least one federal court has found jurisdiction when none of the elements of the crime occurred within its jurisdiction. United States v. Brown, 549 F.2d 954 (4th Cir. 1977), cert. denied, 430 U.S. 949 (1977), held that the defendant, stationed in West Germany, could be properly convicted of conspiracy to import heroin through the U.S. Army mails, because his offenses contravened the laws of the United States over which the district court had jurisdiction.

      . D.C. Code (1973), § 11-923 (b) (1) provides: "... the Superior Court has jurisdiction of any criminal case under any law applicable exclusively to the District of Columbia.” It is unchanged in the 1981 edition of the Code. In In re A.S.W., 391 A.2d 1385 (D.C.C.A. 1978), the court observed in passing that § 11-923 (b) (1) seemed to suggest a geographical limitation on jurisdiction. Id. at 1390.

        . Other states include: Alabama, Horsley v. State, 374 So.2d 363, 369 (1978), Dolvin v. State, 391 So.2d 666, 673-4 (1979); Arizona, State v. Duffy, 603 P.2d 538, 543-4 (1979); Delaware, Carter v. State, 418 A.2d 989, 991 (1980); Florida, Cf. Battle v. State, 365 So.2d 1035, 1037 (1978), Lane v. State, 388 So.2d 1022, 1027 (1980); Illinois, People v. Pascarella, 415 N.E.2d 1285, 1289 (1981); New Hampshire, State v. Harlan, 364 A.2d 1254, 1259 (1976); New York, Steingut v. Gold, 388 N.Y.S.2d 622, 627 (1976), People v. Corsino, 397 N.Y.S.2d 342, 344 (1977); Pennsylvania, Commonwealth v. Kloss, 385 A.2d 480, 483 (1978); Texas, Roberts v. State, 619 S.W.2d 161, 164 (1981); Washington, State v. Swanson, 554 P.2d 364, 370 (1976), cert. denied, 434 U.S. 967 (1977). See also, Model Penal Code, § 1.03 (Territorial Applicability), American Law Institute, Vol. 1 (1980).

      . During oral argument on appellee’s motion to dismiss, Judge Fairbanks remarked: "You [the State] can show everything but the actual rape.” His judgment was apparently based on the premise that the place where the crime is consummated is the place where defendant may be tried. Absent a statute conferring extra-territorial jurisdiction, he held, "Maryland has no jurisdiction to try a Defendant for first degree rape where the actual consummation occurred outside the [state].”

      . In Hall, the accused in North Carolina shot and killed the victim in Tennessee. North Carolina refused to assert jurisdiction because the fatal force took effect in Tennessee. One year after Hall, North Carolina enacted a statute to give the courts jurisdiction in Hall-type cases. Under Stout, supra, the mortal blow theory would permit jurisdiction over Hall-type cases in the state where the blow was inflicted, presuming, of course, that the act of shooting the gun is the equivalent of inflicting the blow. See n.6, supra.


author: Liss, J.,

text:
    TEDD SIDNEY HART v. STATE OF MARYLAND
    [No. 789,
    September Term, 1981.]

      Decided April 7, 1982.

    The cause was submitted on briefs to Moore and Liss, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.
    Submitted by Alan H. Murrell, Public Defender, and Victoria S. Keating, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Stephen Rosenbaum, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Barbara Jung, Assistant State’s Attorney for Baltimore County, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On June 26,1981, the Circuit Court for Baltimore County denied the motion of Tedd Sidney Hart, appellant, to dismiss, on the grounds of double jeopardy, the charge against him of driving while intoxicated. The same day the appellant noted an appeal to this Court of the denial of his motion.

The agreed statement of facts, entered into the record by the State incident to the appeal, is that:

The state’s evidence would be that Officer Quinn on 12/12/1980 was sitting at Dundalk and Center Place in Baltimore County, Maryland. At that time he was in his marked patrol car. He would testify he heard coming up from behind him a loud noise. He turned and saw a motorcycle. He would testify that the defendant... was the driver of the motorcycle. He would state that the defendant stopped the motorcycle at the intersection of a stop sign, that he made a left-hand on to Center Place and at that time he did a wheely or pulled the front of the motorcycle up, off the ground. At that time the engine stalled out and the defendant got off the motorcycle and was wheeling it down the road when the officer stopped him. And at that time, Your Honor, he made the observations that are on the sheet.

The sheet referred to is a report concerning the officer’s observations relative to sobriety.

In its brief, the State candidly concedes:

On March 20, 1981, a charging document was filed against appellant in the district court for driving while intoxicated and negligent driving. It was stipulated that on that date appellant prayed a jury trial on the charge of driving while intoxicated.

Notwithstanding the foregoing, the negligent driving charge was called for trial in the District Court on March 27, 1981. The charge was read to the defendant, who offered a not guilty plea, and testimony was given by the prosecuting police officer and partially by the defendant. During the course of the proceedings, the trial judge learned for the first time that a jury trial had been prayed on the driving while intoxicated charge, which was a companion case to the negligent driving charge. The court then sua sponte struck the not guilty plea to the negligent driving charge and referred it to the circuit court for trial together with the driving while intoxicated charge. No verdict was entered as to either charge.

On May 21,1981, appellant filed a motion to dismiss both charges on the ground of double jeopardy. On June 26,1981, a hearing was held on the motion in the Circuit Court for Baltimore County and appellant’s motion was denied. Appellant’s notice of appeal was filed the same day. The sole question presented by the appeal is whether the trial court erred in denying appellant’s motion to dismiss.

On appeal the appellant contends that the district court proceedings were sufficient to raise a double jeopardy bar to further proceedings in the circuit court on offenses contained in that charging document, particularly with regard to the driving while intoxicated charge. The State argues that the proceedings in the district court were a nullity and therefore are not a barrier to further proceedings in the circuit court on either of the charges against the defendant.

In Parks v. State, 287 Md. 11, 19, 410 A.2d 597 (1980), the Court of Appeals observed:

[O]ur cases demonstrate that when the trial court has fundamental jurisdiction over a criminal cause, its judgment is not invalidated because of an improper exercise of that jurisdiction. As noted in Parojinog [v. State, 282 Md. 256 (1978)], the State could not retry the defendant because in effect, he had already been convicted in the District Court, which conviction remained unreversed. In Block [v. State, 286 Md. 266 (1979)], the State could not retry the defendant because he had been acquitted on the merits. However, in each of these cases, the trial court had improperly exercised its jurisdiction.

Thus, under Maryland Code (1974, 1980 Repl. Vol.) § 4-302 (e) of the Courts and Judicial Proceedings Article, the district court had no exclusive original jurisdiction over the negligent driving charge where the filing of the charging document preceded the demand for a jury trial and where the two charges arose from the same circumstances.

In the instant case the district court had fundamental jurisdiction over the two offenses on the charging document. On March 27, 1981, it improperly exercised its jurisdiction in conducting proceedings on the charging document after the appellant had prayed for a jury trial on the driving while intoxicated charge.

There is no doubt that under the facts in this case jeopardy attached. As this Court said in Blondes v. State, 19 Md. App. 714, 734, 314 A.2d 746 (1974):

[W]e adopt as the rule with respect to a non-jury trial, that the indictment, information or charging document having been brought to trial on the general issue, jeopardy attaches when the first witness is sworn.

However, the fact that jeopardy attached was not necessarily dispositive of the issue as to whether the appellant may avoid trial on the ground of double jeopardy. The Supreme Court, in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), stated:

[I]n cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.... Only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial was required by "manifest necessity” or the "ends of public justice.” [410 U.S. at 467-68].

We conclude, in light of the facts in this case, that the trial judge’s declaration of a mistrial was not an abuse of discretion. In the instant case the trial judge aborted the trial because he discovered during the course of the proceedings that the major charge had been referred to the jurisdiction of the circuit court by reason of the accused’s prayer for a jury trial. To have continued under the circumstances would have at the very least raised the issue of the jurisdiction of the district court to try the negligent driving charge and would have given rise to the same claim of double jeopardy on a different ground on the drunken driving charge.

In Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, rehearing denied, 337 U.S. 921, 69 S.Ct. 1152, 93 L.Ed. 1730 (1949), the Supreme Court stated:

The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of the jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. [Wade v. Hunter, 336 U.S. at 688-689] [Footnote omitted; emphasis added].

In this case, for the trial judge to have continued in the face of the facts first disclosed to him during the course of the trial, would have at best produced a verdict which might have been upset on appeal because of a lack of jurisdiction by the trial court. We conclude that when the trial court became aware of its possible lack of jurisdiction to try the negligent driving charge, there was a "manifest necessity” to abort the proceedings because the defendant’s interest to proceed to verdict was outweighed by the competing equally legitimate demand for public justice.

Judgment affirmed; costs to be paid by appellant.

      . By reason of this result we need not address the question of whether jeopardy ever attached in the first instance to the driving while intoxicated charge which was never called for trial in the District Court.