author: Wilner, J.,

text:
    SOUTHERN MARYLAND ELECTRIC COOPERATIVE, INC. v. THE TRAVELERS INSURANCE COMPANY
    [No. 1463,
    September Term, 1981.]

      Decided July 12, 1982.

      The cause was argued before Gilbert C. J., and Wilner, J., and Eugene M. Lerner, Associate Judge of the Fifth Judicial Circuit, specially assigned.

      Patrick M. Pilachowski, with whom were Earle K. Shawe, Stephen D. Shawe and Shawe & Rosenthal on the brief, for appellant.

      Alan N. Gamse, with whom were Thomas J. S. Waxier, Jr. and Semmes, Bowen & Semmes on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

In October, 1961, appellant (SMECO) purchased a group life insurance policy, for the benefit of its employees, from appellee (Travelers). Effective September 30, 1979, SMECO discontinued the policy, replacing it with insurance from another company.

The Travelers policy provided for both term insurance, paid for by SMECO, and "paid-up” insurance, paid for by the insured employees. At some point, a dispute arose as to whether, upon termination of the group policy, the SMECO employees were entitled to discontinue their "paid-up” insurance and receive from Travelers the respective accumulated cash surrender values thereof, or whether such entitlement arose only upon termination of their employment with SMECO. SMECO, presumably on behalf of its employees, asserted the former; Travelers maintained the latter.

The dispute involved the validity and interpretation of the insurance contract in the light of certain statutory provisions. There are, of course, a number of avenues by which that dispute could have been judicially resolved, but SMECO chose none of them. Instead, it filed a complaint with the State Insurance Commissioner, invoking his authority under Md. Code art. 48A, § 55(2)(iv) to revoke or suspend an insurer’s certificate of authority if the insurer "[wjithout just cause unreasonably refuses or delays payment to claimants of the amount due them.”

After a hearing on the matter, a hearing examiner for and on behalf of the Commissioner concluded that, although apparently authorized by the insurance contract, Traveler’s position was contrary to law — in particular art. 48A, §§ 414, 417, 418, and 435. He therefore declared that its refusal to pay the cash surrender values to the requesting employees constituted a violation of § 55 (2) (iv), and, "in lieu of a statutory penalty” under § 55A of art. 48A, ordered Travelers to permit the SMECO employees to "cash surrender their policies.”

Travelers filed a timely appeal to the Baltimore City Court which, on August 25, 1981, reversed the Commissioner on two grounds. The court first found that the dispute involved "a legitimate legal issue as to the meaning of an insurance policy,” and that § 55, from which the Commissioner derived his jurisdiction in the matter, was an inappropriate basis or mechanism for resolving that issue. Second, it said, "even if he did have jurisdiction here, I think he has misconstrued the policy.”

SMECO is now the appellant, arguing that whatever interpretation may be given to the language of the insurance contract, the obligation to permit the employees to terminate their "paid-up” insurance and receive the cash surrender value is required (1) by statute, (2) by common law, and (3) by equity. We disagree and shall affirm. We believe that the Commissioner misconstrued the contract and the substantive statutory requirements, and, at least for that reason, he exceeded his authority under §§55 and 55A.

(1) The Insurance Contract

The policy in question is labeled and denoted throughout as a "group policy.” It was issued to SMECO, as an employer, and insured the lives of SMECO’s employees for the benefit of those persons designated by the respective employees. The employees did not receive the policy itself, or even a copy of it; they received only a "Certificate of Insurance,” referring to the "Group Life Policy” and attesting to their being insured under it.

The policy afforded an aggregate amount of life insurance (i.e., death benefit) for each SMECO employee equivalent to approximately double his annual salary, up to a maximum of $20,000. That level of insurance was to be provided by a combination of "paid-up” and term insurance. Each participating employee could purchase "paid-up” — i.e., ordinary or whole — life insurance by contributing $1.00 per month per $1,000 of total insurance. The amount of "paid-up” insurance that he received for that contribution was set forth in a table included in the policy, and was dependent upon his age. The difference between the amount of "paid-up” insurance so purchased by the employee and the aggregate amount to which he was entitled under the policy was supplied by term insurance paid for by SMECO. The "group paid-up life insurance” purchased by the employees accrued a cash surrender value, also set forth in a table and based upon the age of the employee.

The policy anticipated the possibility that it might one day be discontinued and that from time to time the covered employees might retire or otherwise leave SMECO’s employ; and it contained a number of provisions dealing with those eventualities. In the section dealing with the "group term life insurance,” the policy provided (with certain exceptions and subject to certain conditions) that if an employee’s term insurance was terminated through discontinuance of or amendment to the policy or by reason of his leaving SMECO’s employ, he could convert that term insurance to an individual insurance policy.

With respect to the "paid-up” insurance, three provisions are particularly pertinent. The section dealing with discontinuance of the policy provided that such discontinuance "shall not affect the Paid-up Life Insurance, if any, previously purchased for any Employee hereunder and in force at the date of such discontinuance.” The policy also made clear, however, that "[ajfter the Term Life Insurance on his life shall have terminated” (as well as under four other conditions), the employee may not purchase any more paid-up insurance. Finally, the policy contained a section setting forth the circumstances under which an employee could surrender his "paid-up” insurance and demand a cash payment in lieu thereof. That section provided, in relevant part:

"Upon receipt by the Company of the written election of a former Employee, made
(a) after discontinuance of premium payments for his Term Life Insurance, except in the case of a Retired Employee, and
(b) after termination of his employment with the Employer, and
(c) not earlier than One year from the date last worked in the event that he shall have been continuously disabled from the date of termination of employment,
to receive, in lieu of the Paid-up Life Insurance in force on his life, the cash value of such Insurance, the Company will pay such cash value to him.
If the amount of Paid-up Life Insurance in force on the life of an Employee is less than One Hundred Fifty Dollars — and either his Term Life Insurance and his employment shall have terminated, or his Term Life Insurance shall have terminated and this policy shall have been discontinued — the Company may, at its option without election by the Employee, but without any obligation so to do, cancel his Paid-up Life Insurance and pay to the former Employee the cash value of such Insurance....” (Emphasis supplied.)

These various provisions, read in pari materia with each other, establish two important things with respect to the "paid-up” insurance. They first establish that, unlike the term insurance, the "paid-up” insurance actually in force at the time was not affected by a discontinuance of the master policy. Although the employee was precluded from adding to his "paid-up” insurance following such discontinuance, what he had at the time remained in full force and effect. It was not terminated and there was no requirement that it be converted into another policy. All of this is also reflected in the Agreement providing for the discontinuance of the policy signed by SMECO and Travelers on September 28, 1979.

The second point made clear from these provisions emanates from the first. Because there was no automatic termination of the "paid-up” insurance, the policy set forth the conditions under which that insurance may be "surrendered” and the cash surrender value demanded. Discontinuance of the master policy is not one of those stated conditions, however; and it does not appear that the omission was inadvertent. Cancellation of the "paid-up” insurance and payment of the cash surrender value upon termination of the master policy was provided for, but only where the amount of "paid-up” insurance involved was less than $150; and even then the option to cancel was given to Travelers, not to SMECO or its employees.

It seems clear to us from these provisions that, in terms of the contract itself, there is no obligation on the part of Travelers to accept surrender of the "paid-up” portion of the insurance and pay out the cash surrender values merely because the master policy has been discontinued. The employees may surrender that insurance upon termination of their employment with SMECO; but until then, it remains in effect.

(2) Statutory Requirements

The State Insurance Code, art. 48A, is divided into forty subtitles. Subtitle 23, captioned "Life Insurance and Annuities,” consists of sections 386-416. It applies, according to § 386, "to contracts of life insurance and annuities, other than reinsurance, group life insurance and group annuities.” (Emphasis supplied.) Subtitle 24, consisting of sections 417-436B, is captioned "Group Life Insurance”; each of its sections applies expressly to a group life insurance policy — a policy "insuring the lives of more than one individual. ...” Section 417 (a).

The Insurance Commissioner, as noted, found that Travelers’ position contravened the requirements of §§ 414, 417,418, and 435 of art. 48A. The company’s response, which we think is a correct one, is that § 414, which is part of subtitle 23, is not applicable to a group life insurance policy, and that the record fails to support any violation of the other sections.

Section 414 of art. 48A is Maryland’s enactment of the Standard Nonforfeiture Law. It provides, in relevant part (subsection (b)), that "except as set forth in subsection (m), of this section,” no policy of life insurance may be issued or delivered in Maryland unless it contains certain provisions, among which is that "upon surrender of the policy [within a certain period of time] the insurer will pay, in lieu of any paid-up nonforfeiture benefit, a cash surrender value of such amount as may be hereinafter specified.” Subsection (m), however, tracks the exceptions of § 386 and provides expressly that "[t]his section shall not apply to any. . . group insurance.. ..”

SMECO seeks to waive aside subsection (m) (and § 386) with the bald assertion that the "paid-up” insurance provided for in the policy is not group insurance. But it clearly is group insurance. Aside from the ubiquitous statements throughout the policy that it is "group life insurance” it certainly falls within the meaning of § 417(a), quoted above — a policy insuring the lives of more than one individual — which is the closest our statutes come to a generic definition of the term. It also comes within the definitions most commonly given to the term by the courts, and is exactly what is encompassed in § 418 of art. 48A: "The lives of a group of individuals may be insured under a policy issued to an employer... which employer.. . shall be deemed the policyholder, to insure employees of the employer for the benefit of persons other than the employer. ...” By reason of the policy, including the provisions for "paid-up” insurance, being "group life insurance,” the requirements of § 414 are inapplicable to it.

The Commissioner acknowledged that the policy (including the "paid-up” insurance part of it) was a group life policy when it was issued, but found that it ceased to comply with the statutory requirements for a group policy when it was discontinued. His theory, more precisely, was as follows:

"Article 48A, Section 418 provides: 'The lives of a group of individuals may be insured under a policy issued to an employer, or to the trustees of a fund established by an employer, which employer or trustees shall be deemed the policyholder . . . subject to the following requirements: (1) The employees eligible for insurance under the policy shall be all of the employees of the employer, or all of any class or classes thereof determined by conditions pertaining to their employment.’ The insurance policy in question no longer meets the statutory conditions for a 'group insurance policy’ in Maryland. When the group policy was discontinued in September 1979, those workers already enrolled into the group plan could retain their coverage. However, new employees could not participate in the group policy and therefore were excluded from membership in the class of eligible employees.”

The fallacy in this reasoning, also advanced by SMECO, is evident. Section 418 has to be read in context with § 417, which really is the operative controlling regulation. Section 417 precludes a group policy from being "delivered in this State” unless in compliance with the balance of the subtitle, including § 418. When the policy in question was delivered, however, it was in compliance with the law; and, indeed, the record shows that the Commissioner approved the policy at that time. Discontinuance of the policy by SMECO cannot make that which was lawful, unlawful, or cause new terms to be engrafted onto the policy by operation of law. The policy, when issued, validly prescribed the limited circumstances under which Travelers would be obligated to pay out the cash surrender value on the "paid-up” insurance; and neither SMECO nor the Commissioner can unilaterally amend the policy so as to expand those circumstances merely because SMECO has exercised its option to terminate the policy.

The nonforfeiture provisions applicable to the policy in question here are not those set forth in § 414, but rather those stated in §§ 434 (conversion on termination of employment or eligibility) and 435 (conversion on termination of coverage). In the context of the present dispute, § 435 is most pertinent. It provides, in relevant part, that "[t]he group life insurance policy shall contain a provision that if the group policy terminates . . . every person insured thereunder at the date of such termination whose insurance terminates . . . shall be entitled to have issued to him by the insurer an individual policy of life insurance. .. .” Contrary to the finding of the Insurance Commissioner, the record reveals no violation of that provision. The "paid-up” insurance, as noted, was not terminated or otherwise affected (except to preclude additions to it) by discontinuance of the master policy; and, with respect to the term insurance that was terminated, the conversion option was provided.

We are referred to no appellate decisions anywhere in the country precisely on the points in question here. See, however, Kelley v. Aetna Life Insurance Company, N.Y. Supr. Ct., N.Y.Co., Index No. 9539/72, March 6, 1973, and Uniform Tubes, Inc. v. The Travelers Insurance Co., Ct. Comm. Pl., Montg. Co., Pa., Eq. No. 71-13685, Aug. 9, 1973, two nisi prius decisions reaching the same conclusions we do.

The Commissioner’s determination that the policy violated §§ 417 and 418 finds no support whatever in the record. Nor do we find any violation of common law or equitable principles, as asserted by SMECO. The simple fact here is that, by virtue of the extraordinary inflation and abnormally high interest rates that have prevailed for the past several years (and which SMECO’s employees evidently believe will continue into the future), the "paid-up” insurance provided for in this policy, initially written in 1961, has ceased to become an attractive investment. That is not license to rewrite a valid contract, however.

Judgment affirmed; appellant to pay the costs.

      . Section 55A permits the Commissioner, in lieu of or addition to revocation or suspension of a certificate of authority, to impose a civil penalty of from $100 to $50,000 for each violation.

      . SMECO’s standing to make the initial complaint to the Commissioner, to intervene in the appeal before the Baltimore City Court, or to maintain this appeal has not been challenged by Travelers. In the absence of such objection, we shall assume SMECO’s standing for purposes of this appeal in order that the underlying controversy be put to rest.

      . See Hofeld v. Nationwide Life Insurance Company, 322 N.E.2d 454, 457 (Ill. 1975): "Group insurance policies are those issued by insurance companies to a group policyholder, such as an employer, association or union. Certificates are then issued to the participating insureds, such as employees or members. The master policy is the primary contract and must first be looked to in construing group insurance policies.” See also Mutual Benefit Health & Accident Association of Omaha v. Bullard, 120 So.2d 714, 720 (Ala. 1960), quoting from Protective Life Insurance Company v. Moore, 153 So. 751 (Ala. 1934); McFarland v. Business Men’s Assurance Co., 124 S.E.2d432 (Ga.App. 1962); Land v. West Coast Life Insurance Co., 270 P.2d 154 (Ore. 1954); Crawford v. Metropolitan Life Insurance Co., 167 S.W.2d 915 (Mo.App. 1943); and cf. Simpson v. Phoenix Mutual Life Insurance Company, 247 N.E.2d 655 (N.Y.), reh. den. 252 N.E.2d 864 (N.Y. 1969). Compare Ohrel v. Continental Casualty Company, 350 A.2d 310 (N.J. Super. 1975); Legler v. Meriwether, 391 S.W.2d 599 (Mo.App. 1965).

        . The conclusions that we have reached on the substantive issues of contract and statutory interpretation make it unnecessary for us to address the secondary question of whether the Commissioner’s order was appropriate, in any event, under §§ 55 and 55A. We shall do no more in that regard than to declare the obvious: if an insurer declines to make payment in the good faith belief that such payment is not required under the contract (or under the law), its failure to make the payment is not unreasonable or "without just cause”; and if the Commissioner were to find otherwise, his decision would be arbitrary and capricious.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    CHRISTOPHER DURAN YANES v. STATE OF MARYLAND
    [No. 1473,
    September Term, 1981.1

      Decided July 12, 1982.

    The cause was argued before Gilbert, C. J., and Wilner, J., and Eugene M. Lerner, Associate Judge of the Fifth Judicial Circuit, specially assigned.

      John W. Sause, Jr., District Public Defender, for appellant.

      Richard B. Rosenblatt, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Paul S. Podolak, State’s Attorney for Cecil County, and John L. Scarborough, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court. Lerner, J., concurs in the result.

We herein extend the ambit of Sutton v. State, 289 Md. 359, 424 A.2d 755 (1981) and declare that the proceedings in the Circuit Court for Cecil County amounted to the "functional equivalent of a guilty plea.” Ergo, because the plea did not comply with Md. Rule 731 c, we shall reverse the judgments of the trial court and remand the matter for trial.

The factual setting from which this case arose is unique. Christopher Duran Yanes, appellant, appeared in the circuit court where he was charged with "attempted” forgery, "attempted” causing to be forged, attempted uttering, breaking and entering a storehouse with intent to steal goods of a value of $300 or more, breaking a storehouse with intent to steal goods of $5.00 or more, theft of property of a value of $300 or more, theft of property having a value of less than $300, and being a rogue and vagabond.

The appellant’s attorney informed the trial judge that a "plea bargain” had been made with the State. The appellant’s attorney then said:

"The plea bargain is as follows: The State is making the offer that they would permit the entry and submission of facts stated to the Court under a count of breaking and entering. A sentence on breaking and entering would not exceed the ten years; in other words, the maximum he could receive on breaking and entering.”

Counsel went on to explain that the forgery charge

"would be submitted to the Court ... fon a statement of facts as to] one count.. .. And the punishment is not less than two years and not more than ten years for that. And . .. the . .. [appellant] would be responsible for restitution in all of the various matters in which he is charged, although the statements [of facts] are being submitted on two counts.”

The trial judge inquired whether "[t]hese are guilty pleas....” Defense counsel responded, "Submit an agreed statement of facts. It is essentially that, yes, sir. . . . We would elect a trial by this Court without a jury and submit a statement to the Court concerning the factual basis for these charges.”

Thereafter, the judge made certain inquiries of the appellant as to the appellant’s understanding that the matter would be submitted to the judge on an agreed statement of facts, and "based on those facts,” the judge would determine whether the appellant was guilty.

Appellant’s trial attorney then entered the following "stipulation:”

"On the 2nd day of July, 1981, at the premises which belong to Society Chabert Duval, Limited, which is a corporate entity, the premises is located 555 Blue Ball Road, Elkton, Maryland, which is in Cecil County. During the early morning hours, Christopher Yanes, who is, in fact, before the Court this morning, approached the premises. He actually did break into the premises by breaking the handle off a side door in the building and he entered the building with the intent to take property belonging to Society Chabert Duval, having a value of greater than $300.
After breaking in, in fact, property was taken from the premises. That was the property of the victim corporation. The property was taken without the permission of the corporation removed from the premises with the intent to permanently deprive the owner thereof of the property.”

A second "stipulation” read into the record was that:

"Later on during the daytime hours of the second day of July of 1981, at the premises of the A & P market in Elkton, Maryland, the Defendant, who is in fact, before the Court this morning, Christopher Yanes, did appear to one of the employees of the A & P market and he had in his possession a check which was drawn on the account of Society Chabert Duval, Limited. That account was with the First National Bank of Maryland. The check had been made out with an amount that was not correct and not authorized by the owner of that particular account. Again, the victim, Society Chabert Duval, Society Chabert Duval, Limited.
The Defendant, Mr. Yanes, knowing that the document was incorrect and that false writings were upon it, did try to pass, utter and offer that document to the employee of the A & P market in return get goods or cash therefore [sic].
The document did, in fact, bear false, incorrect information on it and it was, in fact, Mr. Yanes who attempted to offer the document to A & P market and attempted to gain cash or other goods as a result of offering or uttering the document.”

Following each recital of facts, appellant admitted that the statements were true. In addition, appellant agreed to incorporate a list of stolen items into the "stipulation” and further agreed that he would pay for them.

Having made a full and complete in-court confession, appellant should not then have been surprised when the trial judge handed down verdicts of guilty as to both counts to which appellant had, through his counsel, "stipulated.”

The appellant was sentenced to concurrent ten year terms, with the last year of each term "suspended,” and the direction that appellant be "placed upon five years probation to begin upon his release on parole, upon the condition that he make restitution in the amount of $1,601.92, plus some other damage to the building doors or something additional.”

On appeal to this Court, the appellant argues:

"I. The matter was submitted below on 'the functional equivalent of a guilty plea’ without compliance with Maryland Rule 731 c
II. The indictment did not allege an intent to defraud and thus did not allege the commission of a crime
III. The docket entries and commitment papers are erroneous and the amount of restitution is in error.”

The "new specie of plea” that we have observed to be one occurring with increasing frequency, Stevenson v. State, 37 Md. App. 635, 636, 378 A.2d 209, 210 (1977), is the "not guilty upon an agreed statement of facts.” That "hybrid plea” finds no support in the Md. Rules relative to criminal causes. Indeed, the plea is one of expediency and ofttimes is employed as a "back handed” plea of guilty. In Stevenson, 37 Md. App. at 637, 378 A.2d at 210, n. 5, we said:

"There is a variety of reasons why counsel use such a plea, e.g., it is less time consuming than a plea of guilty, minimizes post conviction attack on counsel, and provides the possibility that if an essential element of a charged offense is omitted from the statement that the 'evidence’ will be insufficient to convict.”

We paraphrase Chief Justice Warren in McCarthy v. United States, 394 U.S. 459, 472, 89 S.Ct. 1166, 1174, 22 L.Ed.2d 418, 428-29 (1969), and opine that we do not think it is too much of an imposition upon trial judges, before sentencing defendants to lengthy terms of imprisonment, to take a few minutes to inform the defendants of their rights and to determine, on the record, that the defendants understand those rights.

If counsel attempts to use the plea as the functional equivalent of a guilty plea, the trial judge should make absolutely certain that there is compliance with Md. Rule 731 c. That rule mandates:

"The court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea. The court may accept the plea of guilty even though the defendant does not admit that he is in fact guilty if the court is satisfied that there is a factual basis for the plea. If the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty,”

A plea of guilty, if accepted by the trial court, leaves nothing to be done but the imposition of sentence. Sutton v. State, 289 Md. at 364, 424 A.2d at 758 (1981); Stevenson v. State, 37 Md. App. at 637-38, 378 A.2d at 211.

Sutton dealt with a plea that "was entered at the direction of the trial court” and the Court of Appeals held that under the "particular circumstances, the petitioner’s plea was the functional equivalent of a guilty plea.” 289 Md. at 366, 424 A.2d at 759. Sutton differs from the matter subjudice in that the trial court did not direct the entry of the plea. Nevertheless, the "plea of not guilty on an agreed statement of facts,” as employed by trial counsel for the appellant, cannot, under the particular circumstances, be construed as anything short of a plea of guilty, irrespective of what counsel chose to call it. A mutt called "Duke” is not ipso facto noble. One must look to performance, and the performance in the case is that the appellant’s not guilty on an agreed statement of facts was a judicial confession. How any trier of fact could have arrived, after hearing defense counsel’s narration, at any verdict except one of guilt defies the imagination.

Turning briefly to the second issue raised by the appellant, we observe that the indictment read in pertinent part as follows:

"CHRISTOPHER DURAN YANES
on the said day, in the said year, at the County, aforesaid, with intent then and there to defraud, feloniously did attempt to utter and publish as true a certain false, forged, altered and counterfeited ......certain Chesks [sic] (emphasis supplied.)”

We think appellant’s attack on the indictment to be no more than "whistling in the wind.” It is devoid of merit.

Appellant’s third issue shall not be addressed inasmuch as the reversal of this case will ipso facto cure that defect.

Lerner, J., concurs in the result.

Judgment reversed.

Case remanded for trial.

Costs to be paid by Cecil County.

      . Md. Ann. Code art. 27, § 44.

      . Id.

      . Id.

      . Md. Ann. Code art. 27, § 32.

      . Md. Ann. Code art. 27, § 33.

      . Md. Ann. Code art. 27, § 342.

      . Id.

      . Md. Ann. Code art. 27, § 490.

      . We make clear that the attorney representing the appellant in this appeal was not the appellant’s trial attorney.

      . The docket entries showed the restitution to be $16,001.92 plus other damages. Patently, the transcript governs when it conflicts with the docket. See Shade v. State, 18 Md. App. 407, 306 A.2d 560 (1973).


author: Lowe, J.,

text:
    AMERICAN CASUALTY CO. OF READING, PENNSYLVANIA, et al. v. DEPARTMENT OF LICENSING AND REGULATION INSURANCE DIVISION
    |No. 1515,
    September Term, 1981.1

      Decided July 12, 1982.

      The cause was argued before Lowe and Mason, JJ., and George W. Bowling, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      William J. Rubin, with whom were Emanuel H. Horn, and Dickerson, Nice, Sokol & Horn on the brief, for appellants.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General of Maryland and Michael L. Cohen, Assistant Attorney General, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Appellants are seven insurance companies doing business in Maryland, all members of what is known as the CNA Group. They are subject to an annual tax imposed by Md. Ann. Code (1980 Repl. Vol.), Art. 81, § 136 (a) upon the percentage of gross direct premiums allocable to Maryland and written during the preceding year. In 1977, § 139 of that article (Code, 1975 Repl. Vol. & 1976 Supp.) provided that insurance companies subject to such tax

.. shall, on or before March 15th in each year, file with the Insurance Commissioner a report of the new and renewal gross direct premiums less return premiums written by it during the preceding calendar year ....”'

Concomitantly, the tax owed under § 136 (a) was to be paid to the Insurance Commissioner "at the time fixed for filing the report.” § 140. If the taxes were not paid "when the report or declaration is filed,” the defaulting company "shall be subject to a penalty of five percent and interest at the rate of one percent per month from the date the report was due.” § 140. Appellants mailed their reports and payments from Chicago, Illinois on March 14, 1977, but they were not received by the Commission until March 16, 1977.

Had that scenario occurred prior to 1975, this case would not be before us because the practice of the Commissioner had been to accept, as timely filed, mailed reports and payments "as long as the postmark reflects a date of on or before March 15th.” In 1974, however, the Commissioner was advised by an Assistant Attorney General that the term "file” unambiguously required a physical delivery to the Commissioner and, therefore, that the prior administrative practice should end. On October 20,1975, the Commissioner sent a notice to all companies subject to the tax, including appellants, that thereafter such reports and taxes "must be received annually in the Commissioner’s office on or before March 15.” He added that "any administrative practice followed in the past with respect to filing premium tax reports ... shall be immediately discontinued by this Division.”

In 1979, the new interpretation was invoked against an insurance company, but the penalty was abated by the Maryland Tax Court because that company was able to show that it had never received the aforementioned notice; however, the Tax Court held that the term "file” was unambiguous, and that it "clearly and explicitly means that there be a delivery to the Insurance Commissioner, not just a mailing.” It followed, therefore, that the imposition of the penalty, although "very harsh,” was not legally improper. Because of the penalty’s harshness, however, that case was remanded to the Insurance Division to reconsider its discretionary right to recommend a refund of the tax paid, pursuant to § 216.

Apparently responding to the Attorney General’s interpretation of "file” adopted in that case, the Legislature added to § 139 a subsection (b) which now reads:

"Any report or declaration mailed and postmarked by the U.S. Postal Service on or before the filing date shall be deemed to be in compliance with the filing requirement.”

Section 140 was made to conform by substituting, as the break off point for paying the taxes before subjecting the late-filing company to a penalty, "when the report or declaration [mandated by § 139] is due to be Giled”, for the more rigid prior time "when the report or declaration is filed.” 1979 Md. Laws, Ch. 243, (emphasis added).

The colloquialism, "a day late and a dollar short” took on a special significance to appellants when the Insurance Commissioner imposed a penalty of $25,736.44 on them for filing one day late. This time the Tax Court was either unimpressed or uninformed of mitigating circumstances recited here in the "Agreed Statement of Facts.” In either case, it failed to remand for consideration under § 216 as it had before, and that issue, of course, is not for our consideration, even if it were a proper consideration for the Commissioner in this'case.

Because no extrinsic interpretative aids are needed or appropriate for statutory language that is unambiguous, State v. Fabritz, 276 Md. 416, 421-422 (1975), appellants obviously contend that the Tax Court and the Circuit Court for Baltimore County were both wrong in holding that the verb "file” unambiguously meant to deliver, not merely to place in transit for delivery. In interpreting that "ambiguous” term as used in the statutes, appellants would have us consider two extrinsic aids, i.e., the prior administrative practice and the subsequent legislative amendment.

Even if we had found the term to have been touched with ambiguity, appellants’ arguments were not so persuasive as to compel reversal. For instance, they argue that the amendment indicates that the Legislature did not agree with the Attorney General’s rigid interpretation. To the contrary, it more reasonably indicates that the Legislature did not wish the rigidity of the term it had previously used to apply in the future. If it had not agreed with the Tax Court interpretation, it could have clearly stated its previous intent, and provided a retrospective, as well as future application of that interpretation. It provided only for application in the future.

The prior administrative practice, of course, loses its persuasive effect when we consider that the Commission acknowledged its erroneous interpretation by changing "its practice when so advised.” Indeed, the practice of the agency since 1975 is persuasive indicium of what the intent of the Legislature was originally, even if the term was ambiguous. But it was not ambiguous. We agree with the trial court and the Tax Court that the term is unambiguous and, as pointed out in Bouse v. Hutzler, 180 Md. 682, 687 (1942), apropos of appellants’ prior administrative practice argument:

"No custom, however long and generally it has been followed by officials, can nullify the plain meaning and purposes of a statute.”

Although appellants found several cases construing the word "filed” as used in other contexts, we find nothing directly supportive of the ambiguity argument, let alone their interpretive connotation. Their attempts to introduce meanings into other sections (e.g§ 141 (b)), and to read those meanings into the sections at issue, are so strained as to warrant little comment. It will suffice to say that their interpretation of the purpose and meaning of these sections is in error.

Dictionaries (both legal and lay) and Maryland case law, including interpretation of our own rules, clearly indicate that, in the sense that it was used in the statutes at issue prior to the 1979 amendment, the term "filed” means "delivered.” Levy v. Glens Falls Indem. Co., 210 Md. 265, 273 (1956), appears to have derived its historical analysis from Black’s Law Dictionary when it said that:

"The word 'file’ is derived from the ancient custom of filing or fastening writs and other exhibits on a wire or thread in courts and offices for safekeeping and ready reference. Thus a paper is said to be 'filed’ when it is delivered to the proper officer and received by him to be kept on file. In modern usage, the 'filing’ of a paper consists in placing it in the custody of the proper official who makes the proper indorsement thereon. The word 'filed’ carries with it the idea of permanent preservation of a paper so delivered and received, so that it may become a part of the public record.”

As recently as 1980, we note that one of the few issues in which the Court of Appeals in Hirsch v. Md. Dep’t of Nat. Resources, 288 Md. 95 (1980), agreed with our opinion in Maryland Dep’t v. Hirsch, 42 Md. App. 457 (1979), was what was meant by the term "filed”. We have no hesitancy in affirming the judgment of the circuit court on the law. W are sympathetic with appellants’ plight, but, unfortunately, to do more is not within our discretion, or even our jurisdiction.

Judgment afñrmed.

Costs to be paid by appellants.

      . Senate Bill 262 which ultimately became Ch. 243,1979 Md. Laws, was sponsored by the Chairman of the Economic Affairs Committee at the request of the Insurance Commissioner "By Senator McGuirk (Departmental — L & R/Insurance Comm.)” Hearing notes from the bill’s committee file jacket indicate what appears to have been explained to the committee by the insurance lobbyists:
      "— allow premiums filed with the insurance commissioner to be on time if mailed and postmarked on time

        — had been practice
      — recent A.G.’s opinion said had to be in hands of commissioner
      — can cost insurance companies much money in fines if mail is delayed”.

      . "In 1977, due to the death in the immediate family of Appellants’ employee in charge of filing the Maryland premium tax reports, Appellants’ reports and payments of tax were placed in the mail in Chicago, Illinois, on March 14, 1977. All the reports and payments were received in the office of the Insurance Commissioner on March 16, 1977.”
      The Tax Court declared in its opinion that:
      "The only evidence in the case is a stipulation that the Petitioners mailed the returns on the 14th of March, 1977, and that they were received by the Insurance Commissioner on March 16th, 1977.”

      . In Renehan v. Public Serv. Comm., 231 Md. 59, 63 (1963), the Court of Appeals addressed a precise circumstance, holding that:
      "The mailing of the appeal to the Clerk is not made the equivalent of filing it with him.”


text:
    JESSIE GREGORY RAIFORD v. STATE OF MARYLAND
    [No. 1530,
    September Term, 1981.]

      Decided July 13, 1982.

    The cause was submitted on briefs to Liss and Wilner, JJ., and George W. Bowling, Associate Judge of the Seventh Judicial Circuit, specially assigned.
    Submitted by Arthur A. Delano, Jr., Assistant Public Defender, and Alan H. Murrell, Public Defender, for appellant.

      Submitted by William C. Rogers, III, Assistant Attorney General, Stephen H. Sachs, Attorney General, William A. Swisher, States’s Attorney for Baltimore City, and Charles Chiaparelli, Assistant State’s Attorney for Baltimore City, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

At approximately 1:45 p.m. on November 16, 1980, as Louise Whitney was preparing to get into her car in the 2200 block of Lake Avenue in Baltimore City, she "felt something on [her] left shoulder.” Turning around, she saw that a black male "standing there” had "ripped [her] shoulder strap bag off [her] shoulder.” The assailant, who was tall and slender, had short hair and a mustache, and wore a brown jacket and dark trousers, then fled, with the purse, across the lawn of the nearby Saint Matthew’s Church. According to Miss Whitney, the contents of her purse included, among other things, one five-dollar bill, five one-dollar bills, and change.

Alerted by screams, James Brandau and Fran Lane, who were approximately one block away, saw a black male running across the Saint Matthew’s Church lawn clutching something under his arm. The individual, who was described as being a tall black male with dark slacks and a brown jacket, fled the area in a dark Pontiac Gran Prix bearing the license number ERD-208.

At approximately 1:46 p.m., while on patrol in the vicinty of Sinclair Lane, Officer Charles Smoot of the Baltimore City Police Department received a radio call reporting the incident in question and giving a description of the suspect and his car. Responding to "the Clairmont area,” where he recalled having seen "a similar tag number” some time before, the officer soon observed a black vehicle "coming from Federal Street, up Freedom Way” at a high rate of speed. Watching as the vehicle entered a parking area on Freedom Way West, Officer Smoot ascertained that the car was a 1976 Pontiac bearing license plate number ERD-208. The driver, who was then apprehended, was described as a black male, "twenty-five to thirty years of age, wearing a brown coat, blue pants.” Found in his right coat pocket was a five-dollar bill, five one-dollar bills, and $1.90 worth of change.

A short time later, Brandau and Lane arrived at Officer Smoot’s location (some three to four miles from the scene of the robbery), where they identified the person held by the officer as being the same individual they had seen fleeing the scene of the robbery a short time before. At trial, Officer Smoot identified appellant, Jessie Raiford, as the person he had apprehended.

On March 21, 1981, Officer Wayne McClone of the Baltimore City Police Department recovered Miss Whitney’s purse from a gully located on Federal Street, approximately fifty feet from Freedom Way.

On April 15-16, 1981, appellant was tried in the Criminal Court of Baltimore on a five-count criminal information charging him, inter alia, with robbery. Because appellant had previously been convicted of "crimes of violence” on two prior separate occasions, the State sought imposition of a mandatory twenty-five year term of imprisonment pursuant to Md. Code art. 27, § 643B (c). From his conviction, and sentence in accordance with § 643B (c), appellant appeals, arguing:

"I. The trial court erred in imposing a mandatory sentence under the provisions of Article 27, § 643B (c).
II. The evidence was insufficient to sustain appellant’s, conviction.”

We find no error and shall thus affirm the judgment of the court below.

I.

On August 6, 1970, the United States District Court for the District of Maryland held unconstitutional the Maryland Juvenile Causes Act, Md. Code art. 26, § 51, etseq., insofar as it exempted Baltimore City from the otherwise uniform juvenile age requirement of eighteen years. See Long v. Robinson, 316 F. Supp. 22 (1970 D.Md.), aff'd 436 F.2d 1116 (4th Cir. 1971). The effect of this holding, which also declared unconstitutional a Baltimore City Public Local Law fixing the juvenile age requirement there at sixteen, was to end the practice of automatically trying sixteen- and seventeen-year olds as adults in Baltimore City. Pointing to the fact that his twenty-five year mandatory sentence in the present case is partially based upon two robbery convictions obtained pursuant to this statutory scheme in Baltimore City when he was seventeen, appellant argues that the court improperly imposed a mandatory sentence pursuant to § 643B (c) because his prior robbery convictions "cannot be considered as proper predicates for the imposition of a mandatory sentence under § 643B (c).” In making this argument, appellant recognizes that Long does not have retroactive effect in Maryland (see Wiggins v. State, 275 Md. 689 (1975)), and that, as a consequence, his convictions are not a "nullity.” Compare Woodall v. Pettibone, 465 F.2d 49 (4th Cir., 1972), cert. denied, 413 U.S. 922. Nevertheless, he continues, "[prospective use of 'adult’ convictions from the Criminal Court of Baltimore . . . would perpetuate indefinitely the effect of th[at] arbitrary exception.”

We disagree, on the basis of both the holding and the reasoning in Wiggins.

Wiggins was a declaratory judgment proceeding. Mr. Wiggins had been charged with six counts of burglary occurring while he was between sixteen and eighteen years of age. The cases came to trial in Baltimore City in 1960 and 1961 — prior to Long v. Robinson; and, in accordance with the statutory law then in effect, he was tried, and convicted, in the Criminal Court of Baltimore rather than in the Juvenile Court. Arguing that the Federal decision was retroactive, Wiggins sought a declaration that "the aforementioned convictions . . . are a nullity and that [he] may suffer no legal disabilities as a result of such convictions,” (see 275 Md. at 692) emphasis supplied), and an order expunging all records of those convictions. The trial court dismissed the bill on motion and demurrer, and, on appeal, this Court and the Court of Appeals affirmed.

In rejecting summarily the broad relief requested by Wiggins, the Court, it seems to us, made a clear statement that Long is to have absolutely no effect upon either the prior convictions themselves or upon collateral consequences (such as the application of recidivist statutes) flowing from them.

As compelling as the holding in Wiggins is the reasoning behind it. The mere fact that the general process by which a conviction was obtained is later, in another case, found to be constitutionally flawed in some way does not necessarily taint the otherwise valid conviction. It depends on the nature of the defect, primarily whether that defect touches the integrity of the fact-finding process that led to the conviction. The heart of the Wiggins decision was expressed thusly for the Court by Judge Smith (275 Md. at 709):

"The same evidence presented in a juvenile proceeding or in a regular criminal trial should lead to the same conclusion, although, as we shall point out, at the time of Wiggins’ trials his rights might have been more jealously guarded constitutionally in a regular criminal trial than in a trial under juvenile procedure. The basic difference, however, between trial as an adult and trial as a juvenile lies not in the fact-finding processes, but in the procedures looking to rehabilitation after a determination that an individual did in fact commit acts which were violations of the criminal statutes of this State.”

The same type of reasoning has led the United States District Court for the District of Maryland and, on appeal, the Fourth Circuit Court of Appeals, to somewhat analogous results. See, for example, Douglas v. Warden, Maryland Penitentiary, 399 F.Supp. 1 (D. Md., 1975) and Grandison v. Warden, Maryland House of Correction, 580 F.2d 1231 (4th Cir. 1978), cert. denied, 440 U.S. 918 (1979), where the courts, in Federal habeas corpus proceedings, concluded that criminal convictions obtained in Baltimore City against a youth between 16 and 18 years of age, prior to Long v. Robinson, could be used to impeach that defendant’s credibility in subsequent criminal proceedings. Those decisions also rested on the premise that the defect struck down in Long v. Robinson did not impugn the fact-finding process. Distinguishing cases involving convictions obtained in the absence of counsel and thus offending Gideon v. Wainwright, 372 U.S. 335 (1963) — see, for example, Burgett v. Texas, 389 U.S. 109 (1967) and Loper v. Beto, 405 U.S. 473 (1972) — both the Douglas and Grandison Courts noted:

"The latter [convictions which offend Gideon] are improper per se, while the former [convictions which offend Long] are improper only if and when other procedures are deemed to have been permitted to some, and denied to other, defendants who otherwise are alike. Accordingly, there is nothing inherently wrong with convictions which offend Long. On their own they do not violate any right of a defendant. (Emphasis in original)”

Grandison, supra, 580 F.2d at 1239-40, quoting Douglas, supra, 399 F.Supp. at 9.

If these convictions, valid when entered, are not subject to expungement, do subject the defendant to "legal disabilities as a result of [them],” and may be used for impeachment purposes, we see no reason why they should be regarded as less than valid and viable convictions for purposes of the mandatory sentence provisions of art. 27, § 643B (c).

II.

Citing Cooper v. State, 9 Md. App. 478 (1970), appellant submits that "the snatching of [Miss] Whitney’s purse” was not accompanied by sufficient force to constitute robbery. Rather, he argues, "the crime, if any was larceny” because "the only 'force’ used was the minimum required to obtain possession.” We disagree.

Robbery is larceny from the person accompanied by violence or putting the victim in fear. Where the victim is neither intimidated nor put in fear, the taking must be accompanied or preceded by actual violence directed at the victim. Actual violence includes both injury to the person and the overcoming of any resistance offered by the victim. Moreover, "[t]he degree of force used is immaterial so long as it is sufficient to compel the victim to part with his property .... In other words, sufficient force must be used to overcome resistance and the mere force that is required to take possession, when there is no resistance, is not enough.” Id. at 480.

Resistance, however, need not emanate entirely from the victim. Rather, "where the article stolen is so attached to the person or clothing of the victim that resistance is offered to the taking solely by reason of such attachment,” then the act of merely snatching property from another is considered robbery as well. Id. at 483.

Turning to the facts of the present case, we believe that the record amply supports a finding that Miss Whitney’s purse was forcibly taken. The fact that her "shoulder strap” was "ripped” from her arm clearly shows that the purse was so attached to her person as to afford resistance to the taking.

Pointing to the fact that he was never positively identified at trial as the individual who robbed Miss Whitney of her purse, appellant also argues that there was insufficient evidence to establish his criminal agency. Again, we must disagree.

When apprehended, appellant (1) fit the description of Miss Whitney’s assailant, (2) carried cash in the same amount and denomination as that contained in the victim’s purse, and (3) was exiting a car seen fleeing the area of the robbery a short time before. Moreover, appellant was also identified by two witnesses as being the individual who, just after the robbery, was seen running across the church lawn clutching something. These circumstances, combined with the fact that the stolen purse was later found a short distance from the scene of his capture, plainly and sufficiently sufficed to connect appellant with the events in question.

Judgment affirmed; appellant to pay the costs.

      . Section 643B (c) provides:
      "Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.”
      The imposition of a mandatory sentence was based upon two prior robbery convictions, for which appellant was sentenced to concurrent three-year terms of imprisonment on December 1,1967, and one prior rape conviction, for which he was sentenced to a twenty-year term of imprisonment on June 11,1970. Appellant does not contest the fact that robbery and rape are both crimes of violence. See art. 27, § 643B (a).


text:
    RALPH ALEXANDER v. STATE OF MARYLAND
    [No. 1537,
    September Term, 1981.1

      Decided July 13, 1982.

    The cause was submitted on briefs to Moylan, Moore and Lowe, JJ.
    Submitted by Thomas J. Bollinger, Assigned Public Defender, and Alan H. Murrell, Public Defender, for appellant.
    Submitted by Ann E. Singleton, Assistant Attorney General, Stephen H. Sachs, Attorney General, William A.

      Swisher, State’s Attorney for Baltimore City, and Gary Ticknor, Assistant State’s Attorney for Baltimore City, for appellee.

      *Note: Certiorari granted, Court of Appeals of Maryland, October 29, 1982
   Lowe, J.,

delivered the opinion of the Court.

—a legal prologue—

In the decade that commenced with the assassination of President Kennedy, climaxed with the creation of this Court, and concluded with the marriage of Tiny Tim, violence proliferated, partly because police were constitutionally hobbled in controlling a rebellious reaction and partly because citizens were reluctant — or afraid — to become "involved” in deterring that violence. This reticence seemed to emanate less from fear of physical harm than from the potential consequences of a legal aftermath. Representative was the 1964 New York homicide of Catherine "Kitty” Genovese, who was viciously ravaged and repeatedly stabbed while onlookers turned their backs to avoid witnessing the butchery, and neighbors closed their doors and windows to shut out her screams of anguish until her suffering was finally ended by the murderer. Witnesses who were interviewed excused their indifference by noting that the law did not protect a protector from criminal assault charges if the one he aids was initially in the wrong, however misleading appearances may have been. See People v. Young, 11 N.Y.2d 274 (1962). The onlookers hesitated to become involved in the fracas at their legal peril. Even if their hearts had been stout enough to enter the fray in defense of a stranger being violently assaulted, the fear of legal consequences chilled their better instincts.

At common law, the privilege of using force for crime prevention did not include authority for intervenors to protect third persons who were strangers to the intervenor. The privilege, even now in some jurisdictions, was limited to the protection of those closely related to, or associated with, the intervenor. See Guerriero v. State, 213 Md. 545 (1957). That restriction to family or close associates was imposed because the right evolved not from the right of self-defense, as most cases imply, but from the right to protect one’s property. R. Perkins, Criminal Law (2nd ed. 1969) at 1018-1019. Ill W. Blackstone, Commentaries on the Law of England 3 (facsimile ed. 1979), described the right as only Blackstone could:

"In these cases, if the party himself, or any of these his relations, be forceably attacked on his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens is chargeable upon him only who began the affray.”

Although it was merely a defense, an excuse for breach of the peace (or even homicide), Blackstone put great emphasis upon the natural source of this legal right. He felt that it

"is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.” Id. at 4.

Perhaps because the right to protect one’s "property” (i.e., his household, which included wife, children, servants, etc.) carried the same limitations upon the degree of force employed as did self-defense, many, if not most, of the courts in this country addressed the issue from the view that no force could be justifiably employed unless the protected person may have justifiably defended himself. That generally was the law espoused by the leading New York case of Young, supra, where the court affirmed the conviction for assault of a defendant who, in good faith, intervened in a struggle between a plain clothes police officer and a person whose arrest the police officer was attempting to effect.

The Maryland Court of Appeals has never directly addressed the issue, but inclined with the majority by strong dicta in 1957. In Guerriero v. State, supra at 549, the Court acknowledged, if somewhat grudgingly, that:

"A third person, closely related to or associated with one attacked in such a manner that he could properly have defended himself by the use of force, has a right to go to the defense of the person attacked and to use the same degree and character of force that the one attacked could have used.”

The care with which the Court chose to refrain from espousing any law beyond the narrow confines of the facts of that case is emphasized by the next sentence, in which the court hesitated to concede that a brother was a sufficiently close relative to warrant a right to that defense.

"The cases differ as to whether, and under what circumstances, one may so defend a brother in danger but we assume, without deciding, that he may, since the State concedes the point.”

Early in this Court’s judicial life, it carefully adhered to that narrow and restricted espousal of the right to aid third persons, limiting the beneficiaries of such right to relatives or close associates of the intervenor, but more significantly for our present purposes, by restricting the right to

"such a manner that he [the victim] could properly have defended himself by the use of force ....” Tipton v. State, 1 Md. App. 556, 560 (1967).

Although the reciprocal right limitation was not clearly or definitively expressed in either Guerriero or Tipton, both cases showed Maryland leaning toward the New York view that one goes to the aid of another at his peril, and his protection from criminal charges depends not on what appears to him when he intervenes, but rather upon the rights of the person whom he has succored. As Perkins, supra, points out,

"it has been common but quite unfortunate to say that the defender 'stands in the shoes’ of the one defended with exactly the same privilege or lack of privilege as possessed by the latter.” Id. at 1020.

Perkins finds fault with that theory because it forces a Good Samaritan to gamble not only his health but his freedom and reputation, and overlooks the likelihood that the intervenor might have acted entirely without mens rea, and perhaps even with the highest sense of duty. It deals with such a defender as the willing participant in a brawl; whereas, from his standpoint (with the facts as they reasonably appear to him), he may be seeking to defend an innocent victim from a felonious assault.

Perkins’ preferred position better fulfills our contemporary social needs by merging the encouragement of crime prevention with the privilege of defending others. It was approved instinctively by this Court in Gray v. State, 6 Md. App. 677, 685-686 (1969), without mentioning Guerriero, Tipton or even Young. Gray’s failure to address those older cases or the common law cases might have been justified because Maryland abrogated its common law status in that regard in 1965 by broadly extending the right to intervene to aid an apparent victim of a violent assault. Md. Ann. Code (1982 Repl. Vol.), Art. 27, § 12A, provided that:

"Any person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person’s defense. The force exerted upon the attacker or attackers by the person witnessing the assault may be that degree of force which the assaulted person is allowed to assert in defending himself.” (Emphasis added).

But in Gray we didn’t mention the statute either.

Gray dealt with a son who killed his father, allegedly to protect his mother. That relationship had no need to look beyond the common law; however, we held that ah "acting on appearances” instruction was properly denied, but only because the issue had already been fully instructed. The request was cumulative, we said, because the court had instructed that in order to qualify or excuse the killing, the defendant had to have believed at the time that a person close to him (his mother) was in danger of losing her life or suffering serious bodily harm, and that the circumstances were such as "to warrant reasonable grounds for such belief in a mind of ordinary reason.” Id. at 685. The trial judge supplemented the instruction by adding that the test was not what the jury thought a reasonable man would believe,

but rather what the defendant, as a reasonable man, believed, to be taken into consideration.” Id. at 685-686.

Clearly acknowledging the legal propriety of the instruction, Judge Morton said for this Court that:

"Under the circumstances, we are of the opinion that the jury was fairly apprised of the law relating to a homicide committed in defense of a close relative and, accordingly, find no prejudicial error by the trial court in refusing to grant the instruction as submitted.” Id. at 686.

While this holding clearly indicated a first impression in Maryland on the question of an accused’s state of mind, we cannot say that it expressed the legislative intent of Art. 27, § 12A — because, as noted, the statute was not mentioned in the opinion. Indeed, the only direct reference to that statute which we are able to find in any reported opinion appears in Pope v. State, 284 Md. 309, 325 (1979), where Judge Orth acknowledged the Act as one of two "Good Samaritan” statutes enacted by the General Assembly and described its purpose as intending to "afford protection to one who assists another in certain circumstances.” That is not only its obvious raison d’etre, but no other reason for its being is conceivable.

When House Bill 139 (which became § 12A) was sponsored in 1965, it arose in the wake of the Genovese and other similar causes celebres publicizing the legal dangers of "involvement.” As indicated by Pope, the Act was clearly intended to encourage and to afford protection to "good Samaritans” by removing their legal doubts, which might impede crime prevention and deter those who witness violent assaults upon persons, but who otherwise would aid an apparent victim of criminal violence. Even in the days of Blackstone, such need was recognized to supplement the slowly grinding vehicles of justice, and that need has increased apace with the contemporary increase in violent crime. Blackstone pointed out that

".. . the law, in this case, respects the passions of the human mind; and (when external violence is offered .. .), makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another.” Blackstone, supra at 3-4.

Maryland thus appears to have been in the forefront in safeguarding the right which Blackstone recognized as a legal adjunct of natural instincts, and in adopting what Perkins recommends as the more "enlightened view.”

"Subject to the familiar limitations as to the degree of force permitted, one who is himself free from fault may intervene and use force to protect an innocent victim of intended crime. And under the sound view he is protected by the usual mistake-of-fact doctrine and may act upon the situation as it reasonably seems to be.” Perkins, supra at 1021.

The clear and unambiguous language of the statute is that the witnessing of the violent assault is that which affords protection for the intervenor. There is no reference at all in the Act indicating as a prerequisite to legal absolution that the apparent victim be faultless. To interpret the statute as limited by the common law restrictions would eliminate any purpose for its enactment.

—the factual setting—

The appellant, Ralph Alexander, a prisoner in the Maryland Penitentiary, was convicted by a jury in the Criminal Court of Baltimore (along with Bruce Shreeves, a fellow prisoner), of an assault on a correctional officer, Dale Tscheulin. As might be expected, the witnesses for the State and those for the defense saw the same scene from divergent points of view. The State’s witnesses contended that Officer Tscheulin was attacked by Shreeves, who was subsequently assisted in assaulting the officer by appellant Alexander. Appellant Alexander and his witnesses alleged that another officer, Samuel Stokes, Jr., had apparently grabbed prisoner Shreeves from behind, without provocation, and then Officer Tscheulin came to the scene and started hitting Shreeves. Although Shreeves implicitly acknowledged his initial aggression, he contended that Alexander had seen only the violent overreactions by the guards, and that Alexander’s actions were therefore appropriate according to his limited view of the situation.

When Alexander approached Tscheulin to state that he didn’t have to "beat on” Shreeves as he was doing (according to Alexander), Tscheulin turned around and struck him. Alexander stated that he then simply grabbed the bars and pinned Tscheulin between himself and the bars, but did not strike him; whereupon, he returned to his cell. The State’s version did not vary substantially except as to the degree of force used by Alexander. Tscheulin and Stokes agreed that they were subduing Shreeves, who had approached them with a fighting pose on the catwalk of the third tier when the prisoners were ordered to "lock in” after exercise period. Alexander rushed upon the scene, leapt on Tscheulin, who was preoccupied with Shreeves, and struck the officer in the chest and head.

The issue here is not which version to believe, for that, of course, is the role of the factfinder. The issue is whether the trial court erred when it instructed the jury in regard to the law applicable to the defense theory that appellant intervened to aid the apparent victim of an assault. The judge instructed the jurors on defendant Shreeves’ right of self-defense as well as appellant’s right of self-defense, if they chose to believe that right was raised by the facts or inferences available from the evidence. He then added:

"Now, as to the defendant Alexander there is an additional factor you have to consider. He has a right to go to the defense of Mr. Shreeves to the same extent that Mr. Shreeves has a right to defend himself. The defendant Alexander’s right of self-defense is the same as that of the defendant Shreeves but no more, no less. In other words, if Shreeves had the right to defend himself, then Alexander had the right to go help him defend himself; if Shreeves did not have the right to defend himself, then Alexander didn’t have the right to go help Shreeves defend himself. He stands in the same shoes as Shreeves when he elects to come to his assistance.
Now, if you find that the defendant Shreeves is not guilty because he had a right of self-defense, then you must also find the defendant Alexander not guilty because he would have that same right of self-defense regarding Shreeves, but if you find that the defendant Shreeves did not have the right of self-defense, then it necessarily follows that the defendant Alexander cannot claim that right of self-defense on the basis that he was trying to protect the defendant Shreeves.”

The appellant objected timely, arguing that Alexander’s right to intervene was not tied to the actual propriety of Shreeves’ conduct, but rather depended upon what the jury believed Alexander’s conduct was intended to do.

"MR. LEVIN [Defense Counsel]: Yes, Your Honor. As to the instruction on self-defense, I think it would have to be clarified that if the jury wanted to believe the testimony put on by the defense that he was merely holding, mere holding against the bars may not constitute an assault if believed the reason why he is doing it is to stop a fracas, and I guess part and parcel of that is the jurors should be told that even though Shreeves might not have the right of self-defense, the jury should judge Alexander’s actions on the standard of what Alexander saw when he appeared on the scene.”

The State’s brief points out correctly that the case relied upon by appellant, Gunther v. State, 228 Md. 404 (1962), is inapposite because it applies only to self-defense — rather than to defense of another. It argues that:

"Instructions given by the trial court in the instant case were substantially in compliance with the instruction on self-defense and defense of others approved in the Maryland Criminal Jury Instructions and Commentary Moreover, the instructions given by the trial court were in conformity with Maryland case law on the defense of another. A third person, closely related to or associated with one attacked in such a manner that he could properly have defended himself by the use of force, has a right to go to the defense of the person attacked and to use the same degree and character of force that the one attacked could have used. Guerriero v. State, 213 Md. 545, 549, 132 A.2d 466 (1957); Tipton v. State, 1 Md. App. 556, 560, 562, 232 A.2d 289 (1967).” (Footnote omitted).

But as is apparent from our prologue, appellee has relied upon the common law as it may have existed in 1957. The statute enacted by the Legislature in 1965 dealing with unrelated third persons aiding those under assault was not considered by the parties or the court below, or the parties on appeal. Under the facts of this case, however, the statute is particularly apposite if peculiarly not noted by anyone; yet the failure to discover the statute is easily explained, if not justified. The index of the Maryland Code, to speak charitably, leaves something to be desired.

Contextually we doubt that the Legislature gave any thought to the application of § 12A in a circumstance behind prison walls. But laws in this "nation of laws” must apply to all persons equally. The facts and circumstances, and even the "prison atmosphere” may, however, give rise to inferences which change or even nullify the applicability or the effect of laws. A fact finder here, for instance, may, in light of the structured setting, consider whether Alexander was witnessing two guards properly subduing a recalcitrant prisoner in a segregation area when he leapt at an opportunity to release his pent-up frustrations on a guard, as was argued by the State at trial —

"You’ve got officers, you’ve got something going on down here, some people say it was a fight, but you’ve got another situation going on down there, an excellent opportunity to give a little bit and maybe get away without anybody seeing you. The frustration factor” —

or whether Alexander saw two overzealous guards violently assaulting a fellow prisoner, and intervened, as he contended, to prevent injury to his fellow inmate and avoid the type of explosive incident so likely to arise in that volatile punitive segregation section of the penitentiary. That was the theory that appellant tried to convey and that which his codefendant sought to put across in proper person on his behalf.

Shreeves (who had chosen to represent himself) argued more eloquently for appellant Alexander than for himself, and pointed up how the same circumstances are affected by the setting in which they take place. Addressing the jury, he set out poignantly and succinctly the essence of appellant’s defense, which also vividly makes our point that "circumstances alter cases,” and it is the jury that judges the circumstances. Mr. Shreeves said:

"Ladies and gentlemen of the jury, when I first started, when I asked for a jury trial, I thought that if I would come in and be honest with my testimony, regardless of how it went, and try to convey to you the experience, some of the experience of being in the Penitentiary, that, you know, everything would be all right, but I have found circumstances during the trial that it’s hard for one to convey to you, ladies and gentlemen of the jury, how it is in the Penitentiary experiences one has to experience themselves to really understand. In essence, we live in two different realities for the simple fact when you judge, or when you look upon the facts of what transpired, what went down, you don’t have the essence of the motivations, the personalities, the conditions that one finds himself under, how he must respond to this. It is really chaos, and when the District Attorney or a lawyer represents one of us, they cannot convey the deeper meanings of being there, the experience itself. They deal with law, and law is cold, there’s no question, because’it leaves out the human element.
We have, most of us have broke our social contracts and find ourselves in a condition that is alien. That’s what it is, and one must adapt to it, and by adapting to this experience you lose a lot, you lose sensitivity, you lose honesty, you lose trust. You become — You’re living off of almost instinct, because if you say the wrong things at the wrong time, or if you don’t say the right things at the right time you can find yourself in trouble, serious trouble.
Now, I, myself, I must accept my fate, but if Ralph Alexander had been in another reality and come to the aid, did not so much come to my aid in this but the aid of a free participant, because if he hadn’t interjected and held Tscheulin and give us time to get ourselves in order and cool down, the situation could have been far worse than what it was, and that’s what must be in your minds when you go in the jury room. For him, you know, I ask you to find in your hearts to try to do something for him. For myself I cannot ask that, you know. I know the reality. Fve been there long enough to know and, even now, I can’t find the words to try to convey to you the seriousness of the Penitentiary.
I thank you. That’s the best I can do.”

In light of appellant’s singular defense and his counsel’s pointed objection to the instructions, we believe the court erred in not correcting its instruction, which linked Alexander’s fate to Shreeves’ culpability. An intervenor’s right to react is not strictly coterminous with a participant’s right to self-defense. Under the court’s instruction, Shreeves’ admissions sealed Alexander’s fate regardless of Alexander’s view of the situation.

Under the statute, however, Alexander must be judged on his own conduct, based upon his own observation of the circumstances as they reasonably appeared to him. The reasonableness of his perceptions and the bona tides of his reactions are key elements of consideration by the factfinder, who must review the totality of the circumstances in their setting. Whether it is reasonable for a fellow prisoner to have perceived that two guards subduing a prisoner on a catwalk of a maximum security prison are violently assaulting him, may be contrasted, for example, with the reasonableness of a priest’s perceptions of two men similarly "subduing” a nun in an isolated area of a darkened cemetery. Even assuming that both priest and prisoner "reasonably” perceived a violent assault, still it must be decided whether the reaction to intervene was a bona fide attempt to aid the person being assaulted. Even an intent to punish the offender or to avenge his victim will not suffice. The purpose of the intervention must have been "to aid” the victim, or the statutory absolution is lost.

Whatever the law may have been in Maryland prior to 1965, it is clear that the Legislature, motivated by increasing violence in society and the reluctance of citizens to "get involved,” sought to afford protection to a defender who acts while injury may still be prevented, rather than awaiting judicial reprisals which are geared to provide punishment after the damage has been done. The probability of that having been appellant’s motivation in this prison setting, however, remains a jury question under the proper instructions.

—subsequent assault as reflecting upon credibility—

Our reversal of the judgment of the Criminal Court of Baltimore resolves two other issues raised by appellant, his right to be present at a critical stage of the trial and his effort to obtain a severance of trial from his codefendant, who fought so valiantly on appellant’s behalf. One issue, however, should be addressed for the guidance of the court on retrial.

Appellant sought to cross-examine the prosecuting witnesses on an incident that occurred immediately after the conclusion of the alleged assault in this case. Appellant proffered that, moments later, Officers Tscheulin and Stokes returned along with a number of other guards, took appellant to the shower, then stripped and "beat the hell out of him.”

Appellant proffered this as an attack on the "credibility” of the two prosecuting witnesses. The trial judge did not permit cross-examination and we cannot say that such declination was an abuse of discretion. Assuming the truth of the allegation, for purposes of this determination, it was, at most, an accusation as opposed to a conviction, see Neam v. State, 14 Md. App. 180, 188 (1972), of a subsequent bad act. It had no relevance whatsoever to the actors’ propensities for truth or falsity. See Thomas v. State, 32 Md. App. 465, 475 (1976). The witnesses’ motives of revenge or punishment relate not one whit to whether the accused was an aggressor or a protected intervenor in the prior altercation and, if admitted, would have constituted a diversion from issues before the jury. See McLaughlin v. State, 3 Md. App. 515, 524-525 (1968). If true, it is a penal circumstance that should be corrected within the system, but this trial is not the appropriate forum for its investigation or exposition.

Judgment reversed; case remanded for retrial.

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

      . "... but care must be taken, that the resistance does not exceed the bounds of mere defense and prevention; for then the defender would himself become an aggressor.” Blackstone, supra at 4.

      . Section 12A is a criminal counterpart to Art. 43. § 132, which grants civil immunity to certain persons rendering medical aid under emergency conditions and which was also intended to afford protection to one who assists others in distress.

      3. Aaronson’s Maryland Criminal Jury Instructions and Commentary, relied upon by the State as having approved instructions similar to those given by the trial .iudge, is neither authority to instruct us, nor sufficiently accurate to persuade us. It was published a decade after the enactment of Md. Code, Art. 27, § 12A, by the same publisher as the Maryland Code, but nowhere does it recognize or comment upon that statute.