author: Moore, J.,

text:
    HEWITT ROBERT PINDER, JR. v. STATE OF MARYLAND
    [Nos. 735 and 1128,
    September Term, 1975.]

      Decided April 12, 1976.

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

      John W. Sause, Jr., District Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Sidney S. Campen, Jr., State’s Attorney for Talbot County on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Hewitt Robert Pinder, Jr., appeals from judgments of conviction of rape and burglary after a jury trial in the Circuit Court for Talbot County (Clark, J. presiding); and, in a separate appeal, he challenges the denial by the trial court of his motion for a new trial based upon the confession of a third party some thirty days after he was sentenced to consecutive terms of 20 years and 10 years.

Finding fatal error in the Allen charge given by the trial court after deliberations commenced, we reverse the judgments of conviction and remand for a new trial. The appeal from the denial of appellant’s motion for a new trial is perforce dismissed as moot.

I

The unfortunate victim of a rape which occurred on September 26,1974, in the bathroom of a small private home located four miles east of Easton, was 18 years of age, married and five months pregnant. The day following the attack, she assisted the police in the preparation of a composite drawing of her assailant. Appellant, 19 years of age was picked up on September 29, 1974 by State Trooper Little on Route 309 near Easton where he was hitchhiking. As the trooper later testified, “We both agreed he looked like the composite.” Appellant consented to being photographed and was then driven by Trooper Little to the home in Queen Anne where he lived with his parents and siblings. The following day, the victim visited the police barracks at Easton to make a change in the composite drawing. For that purpose, State Trooper Lewis accumulated several photographs. He gave her a card with which to cover the pictures in order to examine them in sections. Included among the pictures was a Polaroid snapshot of appellant which had been taken the day before by Trooper Little. Lewis testified that “[w]hen this [appellant’s] picture came to her she immediately stepped right back and she said ‘That’s him’, and she broke down at that point.” Appellant was arrested at midday on September 30, 1974 at his place of employment. On October 3, 1974, the victim quickly identified him in a lineup conducted at the Dorchester County Jail in Cambridge under the direction of Sheriff James Ira Johnson.

At the trial, appellant’s counsel conceded the corpus delicti of rape and burglary but disputed appellant’s criminal agency, vigorously challenging the victim’s identification. Alibi testimony was also presented. Appellant did not take the stand. (At disposition, on April 16, 1975, after a presentence investigation, it was disclosed that appellant had no prior convictions.) The jury returned a verdict of guilty of rape without capital punishment, and of burglary.

Scarcely ten days after the sentencing of appellant, the State’s Attorney for Talbot County and the State Police obtained a confession from one Howard Caulk Allen, the subject of an investigation in an unrelated assault, to the crimes for which appellant had been convicted and sentenced. The State’s Attorney filed a motion for a new trial on the ground of newly discovered evidence exculpatory of appellant. When the motion came on for hearing on July 23, 1975, the State withdrew it upon the suggestion of the court that the motion was not proper because the State had prevailed at the trial. The court then permitted appellant to change a pending petition for post conviction relief to a “motion under the authority of Maryland Rule 764(b)(3) for a new trial on grounds of newly discovered evidence.”

For the purposes of this opinion, it is sufficient to add that, after taking testimony and upon careful consideration of the motion, Judge Clark denied it on December 9, 1975 in a five-page opinion. His ultimate conclusion was, “While Allen’s confession was given freely and voluntarily and all constitutional safeguards were carefully observed in its obtention, it is simply incredible and the product of Allen’s bizarre, sexual fantasies. . . .” As previously indicated, we find it unnecessary to consider the merits of the appeal from the denial of the motion for a new trial.

II

The trial was concluded on the second day. The jury retired at 2:54 p.m., taking with them the exhibits in the case and a typewritten copy of Judge Clark’s oral instructions. The transcript reveals that shortly before 6:00 p.m. the jury sent a message to the court that they could not agree. At 5:58 p.m. the court reassembled the jury in the jury box and delivered the following supplemental instruction:

The Court: “Mr. Foreman and ladies and gentlemen of the jury, the Court has been advised that you are unable to agree. For many reasons which I would think would be self evident to you the Court would like to avoid a retrial of this case so, with the concurrence of counsel for both the State and defense, I am going to read you what is commonly referred to as the Allen Charge, which has been of assistance to juries in the same situation you now find yourself
“The Supreme Court says this. ‘In a large proportion of cases absolute certainty can not be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusion of his fellows, you should examine the question submitted with candor and with proper regard and deference to the opinions of each other. It is your duty to reach a verdict in this case if you can conscientiously do so, and you should listen with a disposition to be convinced to each other’s arguments. If much the larger number of you are for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression on the minds of so many men equally honest and equally independent [intelligent] with himself. If, upon the other hand, the majority are for acquittal, the minority should ask themselves whether you might not reasonably take [doubt] the correctness of a judgment that was not concurred in by the majority. While undoubtedly the verdict of a jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by comparison of views and by arguments among the jurors themselves. It certainly can not be the law that each juror shouldn’t listen with deference to the arguments of your fellow jurors and with a distrust of his own judgment, if he finds that a large majority of the jury is taking a different view of the case from what he does himself. It can not be that each juror should go to the jury room with a blind determination that the verdict should represent his opinion of the case [at that moment], or that he should close his ears to the arguments of those who are as honest and intelligent as himself.’
“Now ladies and gentlemen of the jury, I shall give this to the Clerk to give to you and take back with you and cogitate upon, but what I would like to know now is would you like me to make some arrangements to have some supper sent in?” (Emphasis added.)

At 6:05 the jury resumed its deliberations and at 7:38 returned the aforementioned guilty verdicts.

The language of the supplemental charge is practically identical to that approved by the Supreme Court in Allen v. United States, 164 U. S. 492, 501 (1896). In Maryland, however, the Allen case is no longer the standard against which supplemental instructions to an apparently deadlocked jury are to be measured. The leading case in this jurisdiction is Kelly v. State, supra, affirming 16 Md. App. 533, 298 A. 2d 470 (1973). There the Court of Appeals, in an opinion by Judge Digges, held that an Allen-type charge had been properly given as part of the trial court’s general instructions before the jury began its deliberations.

In the face of prior approval of an Allen-type charge in a civil case, Leupen v. Lackey, 248 Md. 19, 234 A. 2d 573 (1967), the appellant in Kelly urged that the guidelines for supplemental instructions contained in the American Bar Association’s Standards Relating to Trial by Jury, § 5.4 (1968) should be approved and that any deviation from such Standards by the trial court should be held to constitute reversible error.

While approving the application of the ABA Standards, the Court of Appeals in Kelly was “not convinced of the need to imprison the trial judges of the State within the walls of foreordained verbiage.” 270 Md. at 142. Guidelines for the employment of an Allen-type charge were, however, suggested by the court at 143-44, viz:

(a) Before deliberations, the following ABA approved charge is “always proper”:

“The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
“It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
“You are not partisans. You are judges — judges of the facts. [In criminal cases substitute the following: Since this is a criminal case, you are judges — judges of both the law and the facts.] Your sole interest is to ascertain the truth from the evidence in the case.” (Emphasis added.)
(b) If the AlZen-type instruction is given before the jury retires and the trial judge chooses to “personalize” the instructions, he has greater latitude in doing so.
(c) After the jury commences deliberations the trial judge “should closely adhere to the wording of the ABA recommended instruction.”
(d) If, in the latter case, the trial court does not “adhere closely” to the ABA approved language then, on appeal
1) the language employed “will be subjected to a careful scrutiny” to determine whether the province of the jury has been invaded and the verdict unduly coerced; and
2) the time interval from the onset of the deliberation, taking into account the complexity of the case, will be considered in examining whether there was an abuse of discretion in giving the instruction “at the time selected by the trial judge.”

In the instant appeal there was no abuse of discretion in the timing of the instruction. The jury had been deliberating for three hours and had itself informed the court that a verdict was not possible. On the other hand, the content of the supplemental instruction poses a grave question as to “whether the province of a jury has been invaded and the verdict unduly coerced.” There was no adherence whatever to the ABA recommended language approved in Kelly in 1973. Rather, the language employed was that approved in Allen in 1896. In addition, the trial court introduced elements not even found in Allen:

(a) “For many reasons which I would think would be self evident to you, the court would like to avoid a retrial of this case;”
(b) “I am going to read you what is commonly referred to as the Allen Charge which has been of assistance to juries in the same situation you now find yourself;” and
(c) The charge was not merely the supplemental instruction of the trial court but was given upon the authority of the Nation’s highest Court, in language directly attributable to that Court, enclosed in quotation marks, with a written copy to “cogitate upon.”

It is plain, we think, that these were coercive elements and an abuse of discretion. The legitimate desire to spare a rape victim the traumatic reenactment of such a searing episode at another trial and to save the State the time and expense involved in a retrial is understandable — but this should be retained in the bosom of the court and not imparted to a deadlocked jury. Such factors are wholly foreign to the primary responsibility of the jury to determine whether the accused is guilty as charged beyond a reasonable doubt. See, In Re Winship, 397 U. S. 358 (1970). Indeed, in our judgment, suggestions to a jury of this nature tend only to subvert the right of an accused under Article 21 of the Declaration of Rights to a trial “by an impartial jury without whose unanimous consent he ought not to be found guilty.” (Emphasis added.)

Furthermore, it is manifestly the application of constraint to inform a jury which considers itself deadlocked, that other juries “in the same situation” have heeded the additional instructions about to be given. Finally, compulsion inevitably resides in the representation, however inadvertent, that a supplemental charge of the type involved here not only bore the imprimatur of the Supreme Court but was indeed the precise language of that tribunal.

As for the content of the charge itself in this case, it is plain that the instruction rendered was not an “Allen-type” but rather was the Allen charge in its pristine, unpersonalized form. The infirmities of the charge may be seen in the following comparison between its elements and the ABA Standards approved in Kelly.

ABA Standards A lien Charge

1) Jurors should not sur1) Deference to the opinions

render their convictions of each other.

because of another’s opin-

ion or “for the mere pur-

pose of returning a ver-

dict.”

2) Duty to consult and de2) Duty to reach a verdict if

liberate with a view to conscientiously possible.

reaching an agreement

if it can be done without

violence to individual

judgments.

3) Minority jurors should se3) All jurors are encouraged

riously reevaluate their to reexamine their views

positions. whether they be aligned

with the majority or

the minority.

4) The verdict should un4) The verdict must repre-

doubtedly represent the sent the considered judg-

opinion of each individment of each juror.

ual juror.

5) The very object of the 5) The object of the jury sys-

jury system is to secure tem is not to secure una-

unanimity. nimity but to require it.

6) A juror should listen with 6) An individual juror must

a distrust of his own maintain his individual

judgment if a “large judgment and not surren-

majority is taking a difder his honest convic-

ferent view.” tions.

On principle therefore and upon the authority of Kelly v. State, supra, we conclude that the traditional Allen charge, as distinguished from an Allen-type charge conforming to the ABA Standards, should no longer be given in Maryland after the jury has retired; and we hold that its employment here accompanied by the prefatory language of the trial court previously quoted, must be held to constitute coercion and therefore reversible error.

We recognize, of course, that the supplemental instruction as given met with no objection by the defense. However, Maryland Rule 756 (g) permits us to

“take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by [Rule 756 (f)].”

In Fletcher v. State, 8 Md. App. 153, 258 A. 2d 781 (1969), we held that an erroneous Allen-type instruction amounted to plain error under Rule 756 (g). Here, as there, we are faced with an irremediable error of commission and shall therefore reverse judgments of conviction and remand for a new trial. Cf. Robinson v. State, 20 Md. App. 450, 316 A. 2d 268 (1974); Taylor v. State, 17 Md. App. 41, 299 A. 2d 841 (1973); Brown v. State, 14 Md. App. 415, 287 A. 2d 62 (1972).

Because of this result the appeal in No. 1128, concerning a motion for a new trial, is dismissed as moot.

We think it appropriate at this time to reemphasize previous admonitions concerning the use of any Allen-type charge:

“It must not be supposed that an Allen [type] charge is proper in every case. There well may be facts and circumstances in a given case which would make such a charge either inadvisable or require the trial judge to exercise great care and restraint in presenting it to the jury.” Leupen v. Lackey, supra, 248 Md. at 25.
“[W]e are also convinced that it should be resorted to with care, restraint and circumspection.” Fletcher, supra, 8 Md. App. at 159.
“In so sensitive a semantic minefield we commend the periodic rereading of Kelly [270 Md. 139, 310 A. 2d 538] by the trial bench [and bar].” Oliver v. State, 25 Md. App. 647, 655, 334 A. 2d 572 (1975).

Judgments in No. 735 reversed; case remanded for a new trial; appeal No. 1128 dismissed as moot; costs to be paid by Talbot County.

      . Appellant was also ordered to be transferred to Patuxent Institution for a determination of defective delinquency pursuant to Code, Art. 31B. His appeal from his conviction, Case No. 735, and from the denial of his motion for a new trial, Case No. 1128, September Term 1975, were consolidated for argument by Order of Chief Judge Orth dated December 24,1975.

      . The familiar name is taken from Allen v. United States, 164 U. S. 492 (1896), in which the Court approved the use of an instruction designed to cause a divided jury to conciliate their differences and to reach unanimity. As the Court of Appeals pointed out in Kelly v. State, 270 Md. 139, 310 A. 2d 538 (1973), n.l, trial courts over the years have employed variations of the language approved in Allen and these are referred to as “Allen-type” instructions.

      . A pretrial hearing on appellant’s motion to suppress identification of him by the victim was held before Judge Clark and Judge Thomas Hunter Lowe of this Court, specially assigned, on July 20, 1975. Trooper Little testified at the hearing as well as at the subsequent trial. The motion was denied.

      . At the trial, Trooper Little testified that appellant “asked me to meet his mother and father and explain where he had been.”

      . Sheriff Johnson testified that he had established facilities at the jail for conducting lineups for the FBI, the Cambridge City Police, numerous Sheriffs Departments and for the Chief of Police in Easton.

      . The bracketed words in the supplementary charge, above quoted, appear in the Allen case but were not employed by the trial judge.

      . The Standards had not been precisely followed by Judge Solomon Liss, the trial judge, in his general charge.

      . The use of the ABA Standards comports with the current trend in other jurisdictions. See, e.g., United States v. Brown, 411 F. 2d 930 (7th Cir. 1969); Kersey v. State, 525 S.W.2d 139 (Tenn. 1975); State v. Blake, 305 A. 2d 300 (N.H. 1973); State v. White, 285 A. 2d 832 (Me. 1972); People v. Prim, 289 N.E.2d 601 (Ill. 1972); Commonwealth v. Spencer, 275 A. 2d 299 (Pa. 1971); and Fields v. State, 487 P. 2d 831 (Alaska 1971).

      . The court approved the giving of this instruction to the entire venire when it first reports for jury duty.

      . As Judge Gilbert pointed out for this Court and Judge Digges for the Court of Appeals in Kelly, two State Supreme Courts, Montana and Arizona, have rejected the Allen charge in any form and three United States Courts of Appeal as well as the Supreme Court of Pennsylvania have announced approval of the charge only as circumscribed by the ABA Standards. In United States v. Fioravanti, 412 F. 2d 407 (3d Cir. 1969), the following assessment of the Allen charge was given:
      “Since its approval over seventy years ago, the Allen Charge has persisted through the years, not so much an object of commendation as it is a product of toleration. Its continued existence is ostensibly justified as a device to generate verdicts, and thus eliminate hung juries. Laudatory as this rationale may appear on superficial impression, there is, upon serious contemplation, no sound basis to the hypothesis.” At 415-416.

      . The trial court prefaced the supplemental charge with the words “The Supreme Court says this.” In Allen the Supreme Court did not actually adopt the precise language of an instruction as did the Court of Appeals, for example, in Kelly, supra. It did approve, in apparent paraphrase, the substance of the charge employed in that case by the trial court.

      . “There is an inherent inconsistency in [the trial court’s charge] in that the dissenters are urged to reconsider their verdict and simultaneously are reminded to make their decisions based upon their own convictions which they are cautioned not to sacrifice. [The court asked] the dissenters to consider shifting their opinions, because the majority is of a different persuasion. We find no merit to any suggestion that might necessarily makes right.” Kersey v. State, supra, 525 S.W.2d at 144. See also, United States v. Fioravanti, supra.

      . The opposite proposition assumes an inherently faulty major premise as the Court,points out in Fioravanti, supra, namely, “that the majority is right and has reached its preliminary inclination by appropriately inspired processes, and that the minority in a given group possesses attributes of spurious rationality. But good reason does not depend upon numbers.”


source: Caselaw Access Project

license: Public Domain

text:
    JOHN RAY SMOOT, JR. v. STATE OF MARYLAND
    [No. 599,
    September Term, 1975.]

      Decided April 12, 1976.

    The cause was argued before Orth, C. J., and Thompson, Gilbert and Moore, JJ.

      Thomas F. Hogan for appellant.

      Henry E. Dugan, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Bonner, State’s Attorney for Montgomery County and
      Ronald G. Scheraga, Assistant State’s Attorney for Montgomery County on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

As in Pinder v. State, decided this date, we are here confronted with a contention that a guilty verdict was coerced. For reasons different from those found and explained in Pinder, we sustain appellant’s contention. The judgment of conviction of larceny upon which appellant was sentenced to a term of six years (execution of which was suspended and supervised probation for six years imposed) will be reversed and a new trial ordered.

I

Appellant was employed as a maintenance worker at the Blair Plaza Apartments in Silver Spring, Montgomery County, Maryland in October, 1974. The occupant of Apartment 907, Annie Drew Derrick, age 84, reported to the management and to the police on October 9,1974 the theft of two rings — her own three-diamond ring with a Tiffany setting, and a gold ring of her daughter, twenty years deceased. (The value of her own ring was established at approximately $1,000 but the testimony did not develop a value for her daughter’s ring.) These two rings had been kept by her in a box on the top of her “chiffonier” in her bedroom together with a third ring — a bloodstone — which had not been touched.

On Wednesday, October 8, 1974, appellant was dispatched to Mrs. Derrick’s apartment to repair a thermostat. According to her testimony, while appellant was in the process of examining the thermostat in her bedroom, he inquired if she had a small screwdriver. She withdrew from the bedroom for several minutes and returned with the screwdriver requested by him. The next day, she discovered the loss of the two rings. Asked to describe how she discovered that the rings were missing, she responded:

“A Well, I go to church on the second Wednesday in the month, and I didn’t notice my ring until I opened the box to put my rings on, and the first I noticed was my daughter’s ring gone. I never touch that ring. And then mine. But my bloodstone ring was left in the box. This one I have on.
“Q Is it your habit to wear that diamond ring when you go to church?
“A Yes. I wear them whenever I go out.
“Q And where are those rings kept?
“A Right on the chiffonier.”

Other testimony of the elderly widow revealed that she lived alone, went grocery shopping about once each week, on Friday, did not “hear too well,” was on prescribed medicines, including sleeping pills, and that a key to her apartment was also in the possession of the front office.

The State’s case against the appellant under an indictment charging him with larceny of the value of $100 or more and of larceny under the value of $100 was presented through the testimony of Annie Drew Derrick and of Dorothy L. Murphy, resident manager of the Blair Plaza Apartments. The latter confirmed the employment of appellant in maintenance and general repair work during the period September 27 through October 11, 1974. During her testimony, a repair order for the thermostat in the living room and master bedroom of Apartment 907 on October 8, 1974 was introduced. Appellant’s initials appeared in the right-hand corner and signified his performance of the work. No other witnesses testified for the State and appellant did not take the stand in his own behalf.

The trial commenced at approximately 10:00 a.m. and the jury retired at approximately 3:15 p.m., after a luncheon recess, oral argument and instructions by the trial court. At 4:35 p.m. the jury sent a note to the trial judge (Fairbanks, J.), requesting pencils and paper and inquiring, “May we have a copy of Mrs. Derrick’s testimony?” Upon receipt of this communication the transcript discloses that the court summoned the State’s Attorney and defense counsel and read it to them. With the concurrence of both sides, the court sent a note back to the jury that Mrs. Derrick’s testimony would not be transcribed.

A second note was received from the jury at 5:23 p.m., reading as follows:

“The jurors at present have firm judgments on the defendant’s guilt or lack of it.
8 consider him guilty
4 not guilty
& all have stated that they are adamant in their beliefs.”

Without disclosing the contents of the second communication to either side, the trial court reassembled the jurors in the jury box. It appears that the State’s Attorney, the defendant (appellant) and defense counsel were present in the courtroom. In response to the second note the court made the following remarks:

“THE COURT: Now, ladies and gentlemen of the jury, I am advised that you are having some difficulty in coming to a verdict. The note which you have just sent out would at first blush lend one to believe that you can’t come to a verdict.
“Well, I will not accept that. You have only been deliberating for about two hours, approximately two hours. I am sure that if you continue your deliberations, you will be able to reconcile your various views, and come to a verdict. I propose to require you to go back and do some more deliberating. I don’t consider that a two-hour deliberation on a matter of this kind as any indication that you are, or ultimately will remain deadlocked, so you ladies and gentlemen will return to the jury room and continue your deliberations.” {Emphasis added.)

After the jury returned to the jury room, the court then addressed itself to counsel, stating:

“Now, what this is all about is that they came out with a note in which they say that they are divided in a particular way, and that they think they are hopelessly deadlocked. My experience with juries is that they don’t deadlock in two hours, and I just don’t accept that, and if necessary, and I will tell you this — I won’t tell it in front of them — I’m going to keep them here all night, if I have to.
“MR. HOGAN [Defense Counsel] May I be heard, Your Honor?
“THE COURT: Yes, you may.
“MR. HOGAN: Your Honor, for the record, I object to the instruction the Court just gave the jury.
“THE COURT: What instruction is that?
“MR. HOGAN: That they had to go back and find a decision.
“THE COURT: I said go back and continue their deliberations.
“MR. HOGAN: Perhaps I took it a little stronger than Your Honor did, but I felt that you ordered them to make a decision in the case.
“THE COURT: I didn’t do anything. I simply told them, Mr. Hogan, that I thought two hours was not a sufficient time, and that if they continued to work, they could reconcile their differences, and to go back and continue their deliberations.
If necessary, I’ll have the reporter read it back.
“MR. HOGAN: Well, my motion is for a mistrial ' at this time because of that instruction. I believe it has a coercive effect upon them.
“THE COURT: Well, you wait. If they are out there long enough, I’m going to give them the Allen Charge. Then maybe you will have something to complain about.
“MR. HOGAN: The Allen Charge is generally acceptable, but I don’t think Your Honor’s instruction — Your Honor’s instruction at this point was stronger than the Allen Charge.
“THE COURT: I told them to continue their deliberations. Now, I didn’t tell them to continue to a verdict one way or the other. I told them that I thought they could reconcile their differences. There is nothing the matter with that. They might reconcile their differences in a not guilty verdict.
Did that occur to you?
“MR. HOGAN: Also, Your Honor, I think from the tone of the instruction it could have a coercive effect upon them.
“THE COURT: Well, sir, if they come out with a guilty verdict, you may take an appeal on that basis. I recognize your motion, and I deny it.” (Emphasis added.)

In the continuing colloquy between court and counsel for appellant, the latter observed that the jury had “apparently” indicated to the court a numerical division although counsel had not seen the note. Defense counsel pursued this point, stating:

“MR. HOGAN: I believe, Your Honor, that that is grounds for a mistrial, because they are not supposed to indicate numerically that they are split at all.”

The following thereafter ensued:

“THE COURT: I didn’t ask for it. It’s in their note.
“MR. HOGAN: I think that’s unfortunate.
“THE COURT: Well, you get me some authority on that. I don’t know of any authority that says that.
“MR. HOGAN: I think if they reveal what their division process is before they reach a decision, it tends to influence a further deliberation in the case in the way that we answer in the note, and the way we ask them to go back and decide again, or not.
I would think, Your Honor, I would be a little bit better able to argue this if I could see the note.
“THE COURT: Sure. Hand him the note.
“MR. HOGAN: Thank you, Your Honor.
“THE COURT: Now, what’s your authority for the fact that they have disclosed their numerical decision, that that calls for a mistrial?
“MR. HOGAN: I don’t have that in front of me.
I’ll have to supply that at a later time, but I believe that there have been decisions that if the jury has revealed how it’s standing, and what its feelings are, that either then it’s clear there should be a mistrial, or there’s just —
“THE COURT: Maybe that’s more preferable to the defendant, but I don’t know of any law that says that that requires a mistrial.
Do you know of any, Mr. Scheraga?
“MR. SCHERAGA [Assistant State’s Attorney]: No, TH*«r Honor, and I think the Court’s direction to tiftrm was neutral.
“THE COURT: Well, I intended it to be. I don’t know whether it sounded that way or not, but I intended it to be.”

The court recessed at 5:30 p.m. The jury suspended deliberations for dinner from 6:30 p.m. until 8:15 p.m. A third communication was sent to the trial judge at 9:20 p.m.:

“The jury feels that based on the evidence we have, we can not come to a unanimous decision. We are still at a deadlock on the same 8 to 4 combination — 8 for the verdict of guilty & 4 for the verdict of not guilty.
“What do we do now?”

The trial judge summoned the attorneys and stated that “I do not propose to discharge them, and I simply wish to send back the message, without taking the time to bring them in here, and tell them to stay at it.”

With respect to the time and circumstances, the court also then observed:

“Now, they haven’t been deliberating hardly an hour since they went to eat. They had a good, long, pleasant dinner hour, which lasted from six-thirty until a quarter past eight, and they should have gotten nice and thoroughly relaxed over that. Now, they came back, and they have been going only another hour. When that note came in to me it was about ten minutes past nine.”

Thereupon counsel for appellant renewed his motion for a mistrial, contending:

“In addition to the other two bases I believe we have a hung jury. They have indicated through two notes they are hung, irreparably hung, and I think at this time, in considering the trial was only a few hours, they have been deliberating longer than the trial was at this point. In fairness, we should have a hung jury and a mistrial.”

With the concurrence of defense counsel who preserved for the record, however, his motion for a mistrial, the court instructed the bailiff to inform the jury that they were to continue their deliberations.

The transcript discloses that the court thereafter reconvened at approximately 10:30 p.m., at which time the trial judge spread on the record the sequence of events since the jury first retired to deliberate arid then stated:

“Now, I propose to call them in in a moment and read them the charge recommended in the American Bar Association standards relating to trial by jury Section 5.4. This instruction has been approved by the Court of Appeals.”

The State offered no comment. Defense counsel, however, interposed an objection to the court’s instruction and to the continuation of the case. He argued:

“It seems to me in five hours and twenty-five minutes of actual deliberation time, with two notes, both commenting they are completely and irrevocably separated, and with a trial that lasted approximately three hours, that balancing those factors out we must come to the conclusion that further deliberation would be fruitless, and that to send them back again is an attempt to coercing a verdict from them, which I do not believe is fair to the defendant.
“THE COURT: Very well. Bring in the jury.
“MR. HOGAN: Your Honor, I would again move for a mistrial as a result of that.
“THE COURT: Denied.”

At the conclusion of this exchange between court and counsel, the jury returned to the courtroom and the trial judge sua sponte delivered the following supplemental instruction:

“THE COURT: Now, ladies and gentlemen of the jury, I propose to give you a further instruction. I am authorized to do this by the law of Maryland, and by certain standards which have been proposed by the American Bar Association in its standards relating to trial by jury, and I will now do so.
“Ladies and gentlemen, it is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or the effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans, you are judges, and since this is a criminal case you are judges both of the law and the facts. Your sole interest is to ascertain the truth from the evidence in this case.
“Ladies and gentlemen of the jury, retire to the jury room.”

The court recessed at 10:40 p.m. and reconvened some forty minutes later at approximately 11:30 p.m., presumably having been advised by the bailiff that the jury had reached a verdict. Upon inquiry from the clerk, the forelady announced that the jury had found appellant guilty under count one of the indictment. A presentence investigation was ordered and the court adjourned at approximately 11:35 p.m.

On this appeal, appellant mounts a four-pronged attack upon the trial proceedings: He argues that: (1) it was unreasonable and coercive to require the jury to spend “6V2 hours in actual deliberation to reach a verdict after a 3-hour trial;” (2) the first Allen-type instruction given more than 2 hours after the jury had begun deliberation constituted reversible error because it deviated from the language approved in Maryland for use in such circumstances; (3) the court erred in twice refusing to grant defendant’s motion for a mistrial after learning of the jury’s 8 to 4 division in favor of a verdict of guilty; and (4) it was an abuse of discretion to give the second Allen-type charge of 10:30 p.m.

Because of the interrelation of the several assignments of error, we have quoted extensively from the transcript and proceed to examine the period of deliberations as a whole.

II

In his first supplemental remarks to the jury, heretofore quoted in full, the trial court dismissed the suggestion that the jury could not reach a verdict. His statement to them after some two hours of deliberation included the following:

“Well, I will not accept that... I propose to require you to go back and do some more deliberating. I don’t consider that a two hour deliberation on a matter of this kind is any indication that you are or ultimately will remain deadlocked.” (Emphasis added.)

Unquestionably, these remarks constituted an instruction within the scope of Maryland Rule 756 g. Taylor v. State, 17 Md. App. 41, 299 A. 2d 841 (1973). Furthermore, it was indubitably coercive. Jenkins v. United States, 380 U. S. 445 (1965), reversing 330 F. 2d 220 (D.C. Cir. 1964); Plumley v. State, 4 Md. App. 671, 245 A. 2d 111 (1968); State v. Rodman, 23 So. 2d 204 (La. 1945).

In Jenkins, supra, the dissenting opinion at the Court of Appeals level discloses that the jury sent the trial court a note after two hours of deliberation, reading:

“The jury cannot come to a decision on both counts because of insufficient evidence.”

The court (Holtzoff, J.) thereupon gave the jury additional instructions, including:

“Now I am not going to accept this. You have got to reach a decision in this case.” (Emphasis added.)

After further deliberation the jury brought in a verdict of guilty of robbery. The majority of the Court of Appeals rejected appellant’s contention that the trial judge had given a coercive instruction. The United States Supreme Court granted certiorari, 379 U. S. 944 (1964), to determine if “the statement was coercive.” Thereafter, in a per curiam opinion, the court noted that the Solicitor General stated in his brief:

“Of course, if this Court should conclude that the judge’s statement had the coercive effect attributed to it, the judgment should be reversed and the cause remanded for a new trial; the principle that jurors may not be coerced into surrendering views conscientiously held is so clear as to require no elaboration.” 380 U. S. at 446.

The Court concluded that the statement did have a coercive effect and reversed the conviction.

And in Plumley, supra, Judge Morton, speaking for this Court, stated that “such language as the jury has ‘got to reach a verdict’ and ‘this Court expects a verdict’ has been held to savor of coercion or undue pressure.” Similarly, in Rodman, supra, where the jury informed the trial judge that “we cannot agree and wish to report a mistrial” and the court upon receiving the statement said,

“The court will not accept a mistrial and you must deliberate further,”

the Supreme Court of Louisiana found reversible error. The Court ruled:

“We are of the opinion that, when the jury came into court, stated that they could not agree, and wished to report a mistrial, the statement of the trial judge to the effect that the court would not accept a mistrial and that they must deliberate further was, in effect, coercing a verdict either of guilty as charged in the information or of any lesser offense contained therein, or of not guilty, and this statement, in our opinion, deprived the accused of the right to a mistrial in the event the jury could not agree. 23 So. 2d at 205. (Emphasis added.)

There is a striking parallel between the language found coercive in the above authorities and that employed below — “Well, I will not accept that” and the court’s statement that he would “require you to go back and do more deliberating.” These statements of the court constituted an Allen-type charge subject to “careful scrutiny” under Kelly v. State, 270 Md. 139, 310 A. 2d 538 (1973). On the basis of such scrutiny, we find coercion and therefore reversible error.

Additional evidence of coercion may also be found, in our judgment, in the trial court’s candid statement to defense counsel that “I am going to keep them here all night, if I have to.” While this statement was not made to the jury and, indeed, the trial judge remarked, “I won’t tell it in front of them,” it nevertheless reflects an attitude on the part of the presiding judge, under the totality of circumstances in this case, that the possibility of a mistrial would not be tolerated.

A regrettable aspect of the proceedings below, we also believe, was the unfortunate disclosure by the jury not only of their numerical division but also the number voting for conviction and for acquittal. Had this information been solicited by the trial court — and not volunteered by the jury — such action would have constituted reversible error. Brasfield v. United States, 272 U. S. 448 (1926); Taylor v. State, supra. In Brasfield, the jury had failed to agree after some hours of deliberation. The trial judge inquired how it was divided numerically, and the foreman replied that it stood 9 to 3, without indicating which number favored a conviction. Reversing the judgment, the Supreme Court held, at 450:

“We deem it essential to the fair and impartial conduct of the trial, that the inquiry should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.” (Emphasis added.)

Here, the jury twice volunteered the details of their division. After the first disclosure, they should have been admonished by the court, and counselled against any repetition. In the absence of such a cautionary instruction, the second disclosure of their split, at 9:20 p.m., was even more explicit and more improper. It recited “a deadlock on the same 8 to 4 combination.” (Emphasis added.)

In response to the plaintive inquiry on the “bottom line” of their note, “What do we do now?”, the trial court, under the circumstances then existing in this case, should have granted the appellant’s motion for a mistrial and sent them home. To require, as he did, another hour of deliberation and then sua sponte to administer the Allen-type charge — even though substantially in the form recommended by the ABA Standards — was an abuse of discretion under Kelly and Leupen v. Lackey, 248 Md. 19, 234 A. 2d 573 (1967).

A comment also appears appropriate with respect to the trial court’s handling of the first communication from the jury, after two hours of deliberation, disclosing their apparent stalemate. The jury, as we have stated, was assembled in the jury box and instructed by the court. Only after the conclusion of such instruction were counsel — and the accused — given any explanation for this procedure. As a general proposition, communications from the jury should be immediately disclosed to both sides unless, of course, they relate to mere physical requirements. See, Winegan v. State, 10 Md. App. 196, 268 A. 2d 585 (1970). Indeed, in a criminal case, the receipt of a communication from the jury may constitute a phase of the trial, State v. Saul, 258 Md. 100, 265 A. 2d 178 (1970), and care should be exercised that the communication be revealed not only to counsel but also to the accused. We observe also that questions of some perplexity will arise when the jury transmits, as here, an improper communication in a criminal case. In such a situation it may be appropriate, with the concurrence of counsel, to seal the communication, without its disclosure, pending receipt of the verdict; and in such eventuality additional care should be observed before an Allen-type charge is given.

While it is not essential to consider appellant’s remaining contention — that coercion is inherent when a jury is required to deliberate 6 hours after a 3 hour trial — we have found no support for such a proposition and, indeed, consider it at variance with the authorities cited in the commentary to § 5.4 of the ABA Standards. The determining factor is the conditions under which the jury is required to deliberate, not the total length of time.

Judgment reversed; case remanded for a new trial; costs to be paid by Montgomery County.

      . Case No. 735 and No. 1128, September Term, 1975, consolidated for oral argument. In Pinder we reversed convictions for rape and burglary because the trial court failed to adhere to. the requirements of an “Allen-type” charge explicated by the Court of Appeals in Kelly v. State, infra.

      . It does not appear that court or counsel considered the reading of Mrs. Derrick’s testimony in lieu of its transcription.

      . The charge adhered to that approved in Kelly v. State, 270 Md. 139, 310 A. 2d 538 (1973). However, the following sentences from the model were significantly absent:
      “The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree threeto. Your verdict must be unanimous.”

      . The panel was composed of Judges Wilbur K. Miller, Warren E. Burger (now Chief Justice) and J. Skelly Wright. Judge Wright dissented.

      . Clearly, the subsequent A Hem-type charge made substantially in accordance with the ABA Standards as set forth in Kelly was no cure for the earlier, coercive charge.

      . See, Taylor v. State, 17 Md. App. 41, 50, supra, at n.10, where Judge Carter pointed out, inter alia, that there is a conflict in the decisions as to whether it is error for the trial judge to keep the jury confined for a specified period of time unless an agreement is sooner reached.

      . For recent applications of the rule in Brasfield, see United States v. Hayes, 446 F. 2d 309 (5th Cir. 1971); United States v. Cheramie, 520 F. 2d 325, 331 (5th Cir. 1975). See, also, United States v. Diggs, 522 F. 2d 1310, 1322 (D.C. Cir. 1975).


author: Powers, J.,

text:
    FOOD FAIR STORES, INC. et al. v. BARBARA LASCOLA et vir
    [No. 300,
    September Term, 1975.]

      Decided April 13, 1976.

      The cause was argued before Morton, Powers and Melvin, JJ.

      Frank J. Vecella, with whom were Anderson, Coe & King on the brief, for appellants.

      Guy M. Albertini, with whom were Goldstein & Albertini on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

This case was initiated by a suit filed in the Superior Court of Baltimore City by Barbara Lascóla and Wayne A. Lascóla, her husband, against Food Fair Stores, Inc. and Betty McClain, later referred to in the record as Betty McClain Williams. The declaration was originally filed in four counts. The first alleged that Mrs. Lascóla was falsely imprisoned by the defendants, and the second alleged that she was slandered by the defendants. A demurrer to the third count as duplicitous was sustained, and it was eliminated from the case. In count four, Mr. Lascóla adopted his wife’s allegations and claimed damages against the defendants because their wrongful conduct caused him to incur medical expenses for the care of his wife.

The Facts Before The Trial Court

The events upon which the suit was based occurred on 13 January 1972. The suit was filed on 26 June 1972 and after both sides engaged in various discovery proceedings, the case was tried before a jury and Judge James A. Perrott in the Superior Court of Baltimore City, beginning on 23 January 1975 and concluding with the entry of judgments nisi on 30 January 1975. From final judgments thereafter entered in favor of both plaintiffs against both defendants, this appeal was taken.

The facts as Mr. and Mrs. Lascóla relate them in their brief are these:

“On January 13, 1972, Plaintiff Barbara Lascóla was in a Food Fair Store and after selecting groceries totalling $71.05, went through the cash register line where cashier Ann Darr, Food Fair employee, tabulated her groceries. Plaintiff (paid for the groceries by check and she) went to the manager’s office, cashed a personal check in the amount needed to pay for the bill and returned to the register to pay for the groceries. Cashier Ann Darr received Plaintiff’s cash, helped Plaintiff bag her groceries, then began to wait on the next customer in line. The evidence was conflicting about whether the cashier gave Plaintiff her receipt or cash register tape. Plaintiff said she was given the tape and Defendants said she was not. Neither the Plaintiff nor the Defendants could produce the tape.
“The Plaintiff then left the store with two carts full of groceries and went outside to the other end of the apron in front of the store to get her automobile, leaving the carts on the apron. She had to go to the other end of the store because this is where she had parked her car as it was very crowded that day.
“As the Plaintiff came back and opened the trunk of her car and started to put her groceries away, she heard someone yell, ‘Miss, Miss,’ real loud, ‘you have got to come back to the store. You didn’t pay for your groceries.’ These words although in conflict with what Defendants say happened, were spoken by the Defendant, Betty Williams. The Plaintiff tried to tell Defendant Betty Williams that she had paid for the groceries, however, was told, T can’t help that. The girl still has the tape. She said you didn’t pay.’ At this time, people kept coming around and they were stopping. After the groceries were placed in the trunk of Plaintiff’s automobile, the Defendant, Betty Williams took ahold of Plaintiff’s arm and told her she had to go back into the store. The Plaintiff at this time was scared and getting sick in the stomach. The Plaintiff was taken back into the store by Betty Williams, Defendant, and brought to the cashier where she had been checked out even though she did not want to go back into the store. At this time everything seemed to stop in the store and all the people were standing around. Finally Betty Williams came out to the Plaintiff and told her she was free to go, that the total had checked out correct.
“While this incident was in the process of happening and Defendant, Betty Williams was outside of the store with the Plaintiff, the store manager, Earlbeck had immediately realized that a mistake had been made by Ann Darr and could see this on the tape at her register.
“The Plaintiff and Defendant, Betty Williams had known each other for a number of years prior to this incident, having been neighbors, both living on Yarnall Road. The Defendant Betty Williams knew that Plaintiff had a problem with her nerves.”

What conflicts there were in the evidence are shown by the following recitals of the evidence which appear in the brief of appellants:

“Cashier Ann Darr presumably received plaintiff’s cash (but unbeknownst to her at the time), put it in the cash register drawer, helped plaintiff bag her groceries, then began to wait on the next customer in line. * * * The next customer in line had a small order, but when it was totalled it amounted to a figure in excess of $100. Cashier Ann Darr was greatly surprised by this, and it was her immediate recollection and reaction that the plaintiff may not have given her the cash for the groceries. In addition, she said plaintiffs receipt or cash register tape was still on the register and not torn off the long roll of cash register tape, thus was part of the next customer’s order. She spoke to defendant Betty Williams, a fellow employee who was a floor girl, a position several levels below the manager and told her she did not remember whether plaintiff had paid her for the groceries or not.
“Plaintiff could be seen out the front window of the store where she was about to enter her car to bring it up to Food Fair’s front sidewalk apron where her groceries were in a cart inside the railing around the front of the store. Defendant Williams said, ‘Oh, I know her, that’s Barbara Lascóla, I will go out and ask her.’ Defendant Williams then went outside and approached plaintiff as she drove her car up to Food Fair’s apron and got out, defendant Williams saying to the plaintiff, ‘Barbara, Ann does not recall whether or not you paid her for your order . . . would you mind coming back into the store.’ Whereupon, plaintiff said, ‘Well, Betty, I thought that I paid her because I cashed a check and then went back to her’, and then said she wouldn’t mind coming back in, but first would have to put the groceries in the trunk of her car. There was no one else around at the time. The two women then proceeded to load the groceries into the trunk of plaintiff’s car, then walked back into the store together, defendant Williams pushing plaintiff’s empty cart. About the time they got inside, the error had been found and verified and it was clear that plaintiff had in fact paid for the groceries, and that a mistake had been made by the cashier. Plaintiff was thanked for coming back into the store by not only defendant Williams, but by the cashier and the store manager and apologies were extended. Plaintiff acknowledged these apologies, understood the situation and did not appear to be in any way upset. After chatting a few minutes, with defendant Williams, plaintiff then left the store and went home.”

Although the evidence conflicted in some respects, for the purpose of our decision in this case we need not be concerned with those conflicts. We look at the evidence in the light most favorable to the Lascólas.

Procedure In The Trial Court At The End Of The Trial And After The Trial

At the close of all the evidence the defendants moved for a directed verdict in their favor. The motion was denied. The case was submitted to the jury on what the court described to the jury as issues. A paper setting forth the questions and the answers of the jury is a part of the record. It is reproduced here:

“1. On the slander count, do you find in favor of the plaintiff or the defendants? PLAINTIFF_.
“2. On the false imprisonment count, do you find in favor of the plaintiff or the defendants? PLAINTIFF
“3. If you found in favor of the defendants on both issues pi and #2 above, do not answer any further issues.
“4. If you found in favor of the defendants on issue p2, do not answer this issue. If you found in favor of the plaintiff on issue #2, do you find against defendant Betty Williams? (yes or no) MX NO YES : do you find against defendant Food Fair Stores? (yes or no) YES
“5. If you found in favor of the plaintiff on either issue //I or #2:
(a) What is the amount, if any, you assess as compensatory damages to plaintiff Barbara Lascóla? $5,000.00.
(b) What is the amount, if any, you assess as punitive damages to plaintiff Barbara Lascóla? $10,000.00.
(c) What is the amount, if any, you assess as compensatory damages to plaintiff Wayne Lascóla? $2,000.00 .”

We set out below the docket entries in the case reflecting the answers of the jury and the other proceedings thereafter, including the final judgment from which this appeal was taken.

“30 Jan. 1975 The Jury answered Issues 1 and 2 ‘Plaintiff’; Issue 3 ‘Not Answerable’; Issue 4 ‘No as to Betty McClain Williams and Yes to Food Fair Stores’; Issue 5-a ‘$5,000.00’; Issue 5-b ‘$10,000.00’ and Issue 5-c ‘$2,000.00’.
30 Jan. 1975 Judgment Nisi in favor of Plaintiff Barbara Lascóla for the sum of $5,000.00 as compensatory damages and for $10,000.00 as punitive damages and in favor of Plaintiff, Wayne Lascóla for the sum of $2,000.00 as compensatory damages as against defendant, Food Fair Stores, Inc. only.
30 Jan. 1975 Judgment Nisi in favor of Defendant, Betty McClain Williams for costs of suit.
4 Feb. 1975 Plaintiffs’ Motion for New Trial as to Issue No. 4 concerning Defendant, Betty McClain Williams only filed.
21 Feb. 1975 Verdict in favor of the Plaintiffs as against Defendant Betty McClain Williams, individually, entered by the Court in view of the fact that this issue was not presented to the Jury for consideration, pursuant to Maryland Rule 560 (PERROTT, Judge).
21 Feb. 1975 Plaintiffs’ Motion for a New Trial ‘DENIED’ (PERROTT, Judge).
21 Feb. 1975 Judgment absolute in favor of the Plaintiff, Barbara Lascóla for the sum of $5,000.00 as compensatory damages and the sum of $10,000.00 as punitive damages and in favor of the Plaintiff, Wayne Lascóla for the sum of $2,000.00 as compensatory damages as against defendants, Food Fair Stores, Inc. and Betty McClain Williams and costs.”

The motions for directed verdict made by both defendants at the close of all of the evidence raised the sufficiency of the evidence to support a finding against them on the false imprisonment count and on the slander count, as well as the sufficiency of the evidence to permit consideration by the jury of punitive damages. They also questioned the sufficiency of the evidence to permit a finding that the defendant Betty Williams was acting within the scope of her authority so as to entitle the jury to find against Food Fair Stores, Inc.

Contentions On Appeal

In this Court the appellants raise the same questions of sufficiency that were raised by their motion below. They also claim that the trial court erred in several specified respects in declining to grant requested instructions and in giving other instructions over exception. They also contend that the award of $2,000.00 to Mr. Lascóla was not warranted by the evidence. Lastly, they contend that the trial judge erred when, at the hearing on a motion by the Lascólas for a partial new trial, he directed the entry of judgment absolute against Betty McClain Williams rather than judgment for her in accordance with the judgment nisi.

The Entry Of Judgment Absolute Against Defendant Williams

We shall consider the last contention first. Maryland Rule 560, Special Verdict, authorizes trial courts, § a 1, to “require a jury to return a special verdict in the form of a special written finding upon each issue of fact.” The Rule further provides in § a 6 that “Upon the return of the special verdict of the jury, the court shall direct the entry of an appropriate judgment nisi.”

Two other subsections of Rule 560 a are relevant to the procedure that was followed in this case. They are:

4. “If in submitting the issues the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury.
5. “As to an issue omitted without such demand the court may make a finding; or if it fails to do so, it shall be deemed to have made a finding in accord with the judgment nisi entered.”

It should be noted that the questions were not prepared by Judge Perrott, nor at his request, but were prepared and suggested by counsel for the appellants. No objection was made to their use as proposed.

A reading of the questions makes it clear that they were not designed to call for a finding by the jury upon any issue of fact. They amounted to nothing more than a means of recording on paper the step by step process which a jury must go through in arriving at a general verdict. In this case the questions were well suited to assist the jury because of the possibility of confusion in a case involving multiple issues, multiple plaintiffs, and multiple defendants. The findings that the jury was requested to record were the ultimate findings involved in any general verdict where the verdict must be for one or more plaintiffs or for one or more defendants, on multiple issues, and must, if appropriate, assess damages.

In his very comprehensive instructions Judge Perrott explained to the jury numerous issues of fact which it should consider. Several, but by no means all of those issues, were whether Mrs. Williams acted with malice toward Mrs. Lascóla, whether she acted with or without justification or excuse, whether Mrs. Williams in fact slandered Mrs. Lascóla, whether she in fact falsely imprisoned Mrs. Lascóla, and whether, if she did those things, she was acting in the performance of her duties and functions and within the scope of authority conferred upon her by her employer; The jury was also instructed to find from the evidence whether Mrs. Williams had a qualified privilege to act as she did and whether that privilege was abused. The judge further told the jury that if they found from the evidence that the only cause of the incident was a mistake by the cashier, such mistake would not be the basis for a cause of action. The court also explained to the jury several factual issues it might be required to consider on the question of damages.

Timely after the recording and hearkening of the jury to its verdict, and the entry of judgments nisi, the appellees filed a motion for a new trial “as to issue #4 concerning the defendant, Betty McClain Williams, only”, and for grounds asserted that the verdict was against the evidence, against the weight of the evidence, against the instructions of the court, and against the law.

No other post trial motions were filed by any party.

At the hearing on the motion for new trial counsel for the Lascólas explained what he wanted the court to do:

“Now, what we request is that the Court change the verdict against the Defendant McClain to conform with the verdict against Food Fair, and we are basing this mainly upon the question which is on the record, which, I think, was abundantly clear that they simply — it was apparent that they did not want to hold Mrs. Williams in, but I think they were concerned about having her pay the verdict personally, which then, takes us into the Issue which was missing in the Issues submitted to the Jury, the Respondeat Superior issue which I feel, under Rule 560, the Court could now enter a decision regarding an omitted issue and find that in fact, it was a Respondeat Superior situation and that the verdict should have been against her, technically, also.”

After a rather extended discussion of the problem among the court and counsel, and a reference to the problems which the record showed were encountered by the jury in returning with its answers to the questions, Judge Perrott said:

“However, the issue of joint liability of the individual Defendant employee and Food Fair Stores, Inc., the employer was never submitted to the Jury and as I understand that law, then the Court can, and I have determined to do so, enter a judgment against the individual, Betty McClain, as well as Food Fair Stores, Inc., so that it will be a consistent verdict.”
“The verdict should have been against both Defendants and I so enter it.
“MR. VECELLA [Counsel for defendants]: If Your Honor please, of course, I take exception to Your Honor’s now conforming the verdict when the Jury—
“THE COURT: Well, as I understand the law, when Issues are presented to the Jury, the Court has the right to do that if that particular Issue is not presented to the Jury and I submit it wasn’t, so that will give you another point that you can appeal on.
“I see no need, Gentlemen, to order a new trial in this case. I think this case was thoroughly tried and, I might say, well tried.”

The motion for a new trial was denied and, as the docket shows, a judgment absolute was entered against both defendants in favor of the plaintiffs for the damages assessed by the jury.

The Court of Appeals has frequently called to the attention of the bench and bar the advantages of utilizing Rule 560, where appropriate, to require the jury to make special written findings upon issues of fact. As early as the case of Alexander v. Tingle, 181 Md. 464, 30 A. 2d 737 (1943), the Court said, at 471:

“Also, this is the type of case in which it would probably be desirable to frame special issues for submission to the jury in accordance with the practice established by Rule 7, ‘Special Verdicts,’ Part Three, III, of the General Rules of Practice and Procedure, 1941, [the forerunner of Rule 560] for juries would be less likely in cases such as this to decide specific issues contrary to the weight of the evidence, than they would be in deciding such a general issue as whether to find for plaintiff or for defendant.”

See also Brown v. Ellis, 236 Md. 487, 497, 204 A. 2d 526 (1964) , and Fowler v. Smith, 240 Md. 240, 245, 213 A. 2d 549 (1965) . The Court has pointed out that “Issues are authorized by the rule and are peculiarly appropriate in consolidated cases.” Wright v. Baker, 197 Md. 315, 317, 79 A. 2d 159 (1951). In the same vein we said in Sun Cab Co. v. Walston, 15 Md. App. 113, 289 A. 2d 804 (1972), at 161:

“The cases were submitted to the jury requiring a special verdict upon written issues which were simple and direct, and called for simple and direct answers. This procedure, authorized by Maryland Rule 560, was designed for just such cases as this, involving multiple issues and multiple parties, and its use is in the discretion of the court. * * * The issues were well designed to result in findings by the jury upon all facts necessary for the entry of proper judgments determining the rights of all the parties in all the cases before the court.”

In Lichtenberg v. Joyce, 183 Md. 689, 39 A. 2d 789 (1944), the Court of Appeals considered a contention of the appellant that he had been denied a complete trial by jury, because the issues submitted to the jury under the Rule (then Rule 7) omitted one or more issues of fact raised by the pleas or by the evidence. The issues had determined the right to recover, but not the amount due. The trial judge determined the amount, and included it in the judgment he directed to be entered. The Court approved that procedure. It pointed out that under the Rule, jury trial is waived as to an issue omitted from those submitted to the jury, and the court may make the finding, and if it fails to do so, it shall be deemed to have made a finding in accord with the judgment.

There appears to be one narrow exception, not relevant in the present case, to the rule that all issues, whether submitted to the jury or not, are subsumed in the judgment nisi entered after the special verdict. In Ebert v. Millers Fire Ins. Co., 220 Md. 602, 155 A. 2d 484 (1959), the Court held that when both parties had agreed that a certain question was to be reserved for determination by the Court, it cannot be contended that the question was implicitly decided by the entry of a judgment nisi.

The very recent case of Traylor v. Grafton, 273 Md. 649, 332 A. 2d 651 (1975), was a suit for liquidated damages for breach of contract. The pleadings and the multiple parties . contributed a certain degree of complication to the issues, which were essentially simple. When the jury, which was obviously confused, announced a verdict which was incomplete, the trial judge then submitted three issues to them and sent them back to the jury room to make a special finding on each issue. There was no issue which required a finding of the amount of damage. After the answers of the jury were recorded, and after other post trial proceedings, the judge entered a finding that the damage was $4,000, and directed the clerk to enter judgments nisi accordingly. The Court of Appeals approved the finding by the judge on an issue not submitted to the jury, but concluded that the judgments were entered under the wrong count of the declaration. The Court reversed the judgment, and, citing Rule 875, entered a judgment “as ought to have been entered in the lower court.”

We have observed that the questions submitted to the jury did not truly require findings on issues of fact. We do not mean to suggest that it was not entirely proper to submit the questions. Undoubtedly they were helpful to the jury in arriving at its verdict. But we very much doubt, although we need not rule, whether the questions submitted were within the scope of and governed by Rule 560. Assuming, however, that the procedure provided in Rule 560 applied, the entry of judgments nisi terminated any power that the trial judge had to make a finding of fact or in any other way to mold the findings into a judgment. As we said in Sun Cab Co. v. Walston, supra, at 161:

“It is of interest to observe that the transcript shows that after the foreman announced the jury’s answers to each of the issues, and the individual jurors were polled as to those answers, the jury was harkened to its verdicts in the four cases in the form of general verdicts. They were recorded on the respective dockets as general verdicts, and judgments nisi as required by Rule 560 a 6 were entered. The process of molding the jury’s findings into proper shape to become the basis for judgments of the court was completed.”

After the entry of the judgments nisi the trial judge had the same power he has over verdicts or interlocutory judgments — the power to entertain and rule upon timely motions, such as motions for a new trial or for judgment n.o.v. The motion for a new trial which was filed in this case was heard and denied. There was no motion for judgment n.o.v. The judge had no power at that stage of the case to make any finding of fact, even if he had such power under Rule 560 a 5 as to an omitted issue before the judgment nisi was entered.

It may be, as Judge Perrott remarked concerning the inconsistency, that it was “the jury’s way of showing sympathy, however it is not the law.” But of course, sympathy is not and cannot be an issue here. The fact of inconsistency between one verdict and another returned by the same jury does not automatically make either verdict illegal. An attack on the verdicts as defective is made in the trial court, by a motion for a new trial or by a motion in arrest of judgment. Havens v. Schaffer, 217 Md. 323, 325, 142 A. 2d 824 (1958).

As far as the appellant Betty McClain Williams is concerned, we look to the judgment nisi entered in her favor for costs of suit. While its effect might have been Vitiated by the grant of a new trial, that was not done. The only thing that remained to be done was the entry of a judgment absolute on the judgment nisi. We must accordingly reverse the judgment absolute thereafter entered against Betty McClain Williams, and, under Rule 1075, “enter such judgment as ought to have been entered by the lower court.” Traylor v. Grafton, supra, at 689.

The Judgments Against Food Fair For Slander And False Imprisonment

There remain in the case the judgments against Food Fair Stores, Inc. in favor of Mrs. Lascóla for compensatory damages and for punitive damages, and in favor of Mr. Lascóla on his derivative claim. The jury found against Food Fair on slander and on false imprisonment, but the damages assessed were not separated.

In Jacron Sales Co. v. Sindorf 276 Md. 580, 350 A. 2d 688 (1976), the Court of Appeals recognized the sweeping changes made in the law of defamation by the decision of the United States Supreme Court in Gertz v. Robert Welch, Inc., 418 U. S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974). The Court of Appeals, within the framework of the federal constitutional rights and restrictions established in Gertz, made what might also be considered as sweeping changes in the law of defamation in Maryland. The Court discussed the nature of the tort (now to be judged by the standard of negligence rather than of absolute liability), the standard of proof, conditional privilege, malice, and the measure of damages.

The Court of Appeals was soon presented the opportunity to apply the newly explained law of defamation, and did so in General Motors Corp. v. Piskor, 277 Md. 165, 352 A. 2d 810 (1976). That case involved multiple counts for slander, assault, and false imprisonment. The jury had awarded compensatory damages separately for each tort, but had awarded punitive damages in one undivided sum. See Montgomery Ward & Co. v. Cliser, 267 Md. 406, 298 A. 2d 16 (1972). The Court said in Piskor, at 172:

“In conformity with what was then controlling state law, the trial of the defamation claim in this case proceeded on the premise of liability without fault, rather than upon some greater standard such as negligence. Since the Gertz and Jacron principles are equally applicable here, we hold that a new trial is required where the plaintiff shall be required to establish the liability of the defendant through proof of falsity and negligence by the preponderance of the evidence, and may recover compensation limited to actual injury as defined in Gertz and Jacron.”

The Court said further, at 175:

“ * * * since the jury found the defendant liable on all three claims, and awarded compensatory damages in varying sums on each, we cannot determine the extent, if any, to which the sum allowed for punitive damages was specifically linked to the slander. The punitive damage award, therefore, must be reversed.”

We apply here the principles of law which the Court of Appeals held so clearly in Jacron and Piskor to be the law of Maryland. We attempt no amplification or further discussion.

In the case now before us the jury did not separate either the compensatory or the punitive damages awarded to Mrs. Lascóla between the two causes of action of slander and false imprisonment. We cannot determine the extent, if any, to which the sums allowed for damages were specifically linked to one or the other of the causes of action, nor from which Mr. Lascola’s cause of action derived.

Confronted with a pre-Jacron directed verdict in a slander case, and because of Jacron’s changes in the law of defamation in Maryland, we said in Stephens v. Dixon, 30 Md. App. 56, 351 A. 2d 187 (1976), at 66:

“From the foregoing excerpts from the Court’s opinion in Jacron, it is apparent that the parties, as well as the court in the trial below, were trying the issues in accordance with a slate of rules no longer valid and effective. In assessing the defamation issues posed in this appeal, we are governed not by the old rules but by the principles announced in Jacron which became effective during the pendency of this appeal. Firstman v. Atlantic Constr. & Supply, 28 Md. App. 285 [, 345 A. 2d 118] (1975). Because both parties to the appeal are entitled to the benefit of those principles, we shall reverse the judgment entered on the directed verdict in favor of the appellee and remand the case for a new trial.”

Likewise in the present case, the issues between the Lascólas and Food Fair Stores, Inc. as to both causes of action and as to all damages assessed are either a part of or are so inseparably intertwined with the cause of action for slander that justice requires a retrial of the issues between those parties.

Judgment against Betty McClain Williams reversed.

Judgment entered in favor of Betty McClain Williams for costs.

Judgment against Food Fair Stores, Inc. reversed.

Case remanded for a new trial as to Food Fair Stores, Inc.

Appellees to pay costs.

      . An examination of the transcript may provide an explanation for the apparent equivocation by the jury in its answer to a part of question No. 4 as to finding against defendant Betty Williams.
      While the jury was out, it sent a question to the Court:
      “If you found in favor of the Plaintiff on Issue Number 2, do you find against the Defendant, Defendant Betty Williams, yes or no? If the vote is yes, will Betty Williams be liable personally? ”
      With the agreement of all counsel the judge sent back the answer, “Yes”.
      When the jury had reached its verdict the answers were announced by the foreman. The answer to No. 4 as to Betty Williams was “No”, and as to Food Fair Stores was “Yes”. The judge called counsel to the bench and expressed concern that the verdict was inconsistent. He decided to send the jury back to deliberate further, and pointed out to them the possible inconsistency.
      A juror said:
      “When we wrote you the note, we wanted to know if Betty Williams — could she be personally responsible, and the answer came up to us, ‘yes,’ and we don’t want to hold her responsible.”
      Counsel for the defendants noted an exception to a response by the court, and the court said:
      “ * * * we will let the issues stand as they were originally responded to.”
      The members of the jury were polled, the clerk read the issues and the answers, and the jury was hearkened to the verdict as the court recorded it. Judgments nisi were entered.

      . Under the former Rule, the court directed the entry of a final judgment. Under Rule 560 it directs the entry of a judgment nisi.

      . Other questions not relevant here involved the law of Pennsylvania on joint and several liability of an agent and his undisclosed principal, and on which counts judgment should be entered and which counts dismissed.

      . It is not entirely clear whether the jury’s intent that Mrs. Williams not be held responsible extended to the whole case, but that question was not raised here. If there was a question below, it was resolved by the entry of the judgment nisi in her favor.